Mn! Eisai Pd) ba ra Uiabeaie ahi a Ri wd Gaoruell Gaw School Library Cornell University Library KF 479.A7E94 TT 3 1924 018 800 296 iw LEADING AND SELECT CASES ON THE DISABILITIES INCIDENT TO INFANCY, COVERTURE, IDIOCY, &c. WITH NOTES. SS es By MARSHALL D. EWELL. — 7 BOSTON: LITTLE, BROWN, AND COMPANY. 1876. - Entered according toct of Congress, in the year 1876, BY MARSHALL D. EWELL, In the Office of the Librarian of Congress, at Washington. KF 474 AT B44 CAMBRIDGE: PRESS OF JOHN WILSON AND SON. PREFACE. Tue followmg collection of cases upon the Disabilities of Infancy, Coverture, &c., herewith presented to the pro- fession, is not intended as an exhaustive presentation of the law upon those subjects respectively, but to present in a convenient form for use by the practitioner and student a collection of cases discussing the more salient points of the respective subjects, with especial reference to their influence upon the capacity to contract, though the sub- jects of testamentary capacity, torts, estoppel, and the marital rights over the wife’s property are to some extent also considered. In the selection of the topics for consideration, the sub- ject of slavery, the learning of which is happily now prac- tically obsolete in this country, and other disabilities which were deemed of minor practical importance, and which could not be considered without unduly swelling the size of the volume, were entirely omitted. With reference to the subject of coverture, the law in this country not being as yet in a settled and stable condition, but in a transition state, rapidly tending towards the com- plete emancipation of woman from the antiquated illiberality and tyranny of the old common law respecting her rights in property, and towards a condition of complete equality with man in this respect, so that it could not with propriety be said that there were any leading cases on the subject, in iv PREFACE. the sense in which that term is generally understood, it was deemed expedient to restrict the selection of cases upon this subject to those discussing questions arising at common law, the learning of which must long continue to be indispensably necessary in determining the true con- struction of the statutes making the innovations upon the common law in carrying out the policy above referred to. In the selection of the cases upon the respective subjects herein considered, it has not been the aim of the editor to present alone the earliest adjudged case upon the point under consideration, unless its treatment of the subject was in other respects satisfactory, but to present, either alone or together with such early case, a case containing within reasonable limits what seemed to be the most satisfactory discussion of the subject under consideration. Where there has been a conflict of authority upon the question under consideration, cases discussing both sides thereof have generally been presented, and what seemed to be the weight of authority has been pointed out in the notes, with the authorities supporting both sides of the question. Where the point discussed in the principal case has seemed to be well settled, the editor has simply presented in the note thereto such a collection of authorities as seemed to show such to be the case, the principal end kept in view being to present as many useful cases as possible, and to let the volume speak as far as possible in the language of decided cases. In a book of selected cases upon any subject, the cases often discuss and pass. upon several points which a logical arrangement of the subject would require to be given in different parts of the volume. This difficulty which is inherent in the subject-matter has been obviated as far as possible by cross references in the body of the work and in the index. \ PREFACE. v It is scarcely to be expected that some errors of judgment have not been made in the selection of the cases presented, and in the notes thereto, but it is believed that they are not so numerous as seriously to impair the small measure of usefulness which it is hoped the volume will be found to possess. M. D. E. Cuicaco, Feb. 4, 1876. CONTENTS. Pace TaBLE oF Cases REPORTED . . . 1. ee. eee ee ee xv TaBLE oF Cases CITED. . 1. 1. 1 ee ee ee ee xxi Inrancy . . . be ale a OD ae eA wine gs eet Da Herbert v. Tarball Sp hla wee. eee ses he Sa a ta in ee 1 The State v. Clarke. . . . So Bi, Geode a ae aE 2,3 When an infant arrives at oe ase lye! Girl and ten bee! hae 1-3 Zouch v. Parsons «3 4 2 ee wh ee Be ce ew ee) | BET Keane v. Boycott. 2. 2. 6 ee ee ee ee ee wee 17-22 Fetrowv. Wiseman. . . 22-30 What acts of infants are voidable and swat valde different jules stated . . . . 3-34 Note. Distinction ‘between « re ” and ss voidable, "Bales commented upon . . . . . « we se ee ee 680-84 Saunderson v. Marr. 2. 2. 1 we we ee 35 Trueblood v. Trueblood . . . . ....- .. . « . . 86,387 Whitney v. Dutch . . . a Teta 2 oe ew » 688444 What particular acts of jciaute's are absolutely vod - ee « 85-46 Note. Rule as to, considered . . .... .. « 4446 Nightingale v. Withington. » 2... 1. 1 ew ee we. 4649 Holt v. Ward Clarencieux . . eos we @ « « «6 50-52 What acts of infants are yoidabte uly a ee a ee AOKBS Note. Collection of cases of acts voidable . . . . . 52-55 Bainbridge v. Pickering . . . . . . + s+ «© « © « + 55,56 Peters v. Fleming . . 7 wot ew ww ew ee 686-61 Acts binding upon infants : necessaries . . . 55-75 Note. Rules on the subject of necessaries 5 Stated, eal instances given. . . soe ee ee 61-75 Chapple v. Cooper, case presented i in nites woe ew ee W074 Elliott», Horn *. . 75-80 Infant bound by fils voluntary abe which fie was te haw com- pellable or authorizedtodo . . . . . . - +» + « « 75-81 Note. Instances given. . . . . . - «~~ ~ 80,81 Roach v. Quick . . » . . » 81,82 Infant husband liable for ante-nnpeiul debts of wife ~ 2 «+ 81-83 Note. Analogous cases . . . 2. 2 2 2 es ee 83 Vili CONTENTS. Inrancy, — continued. Whittingham’s Case . . . Who may take advantage of Heser Note. Rule stated and exemplified . Stafford v. Roof a8 Within what time the sotlable acts ‘ef suifents hat ae inet be avoided . - Note. Rules stated anti ‘considered . Drake v. Ramsay, case presented in note Kline v. Beebe, case presented in note Medbury v. Watrous . Whitmarsh v. Hall. é ; Rights and Remedies of ‘ntants upon gqoldanee of ieee con- tracts for labor and services, &c. . so Note. On disaffirmance thereof they may recover upon the quantum meruit. Rule considered Holmes v. Blogg Corpe v. Overton . Price v. Furman Under what Gacametancae. an ifaat mag agetd ‘hits eomtnita and recover back the consideration moving from him Note. Same subject, and also the remedies of the adult in such case . Badger v. Phinney, eeuented i in nate; Tucker v. Moreland . Mustard v. Woblford . : Voidable acts of infants, jaw avoided and ineaw ontieadd. Note. Same subject. Dore given. Hubbard v. Cummings Voidable contracts of Safaaite — he gieanetl or renanded in toto. Confirmation of purchase of land by retaining pos- session after majority, &c. ; Note. Limitations upon the rule, al examples é Lawson v. Lovejoy 5 Confirmation of purchase wf chattels by sale or eonversion, &c., thereof, after reaching majority. . . . . . . Note. Limitations as the rule . Hale v. Gerrish . Ratification of contract paeeatom on ithe wate of fle infant by new promise, &c., after reaching majority - Note. Distinetion between contracts executed nand exec- utory as to what amounts to a ratification. Rule as to executory contracts, and limitations thereto . Harris v. Wall, presented in note . Palmer v. Miller ad te Ratification of a soidable sonteant ee haul fe and eset it binding from its inception Note, same subject. So ater onan ceaens it wold by relation. Effect of registry laws upon instrument rati- fying infant’s deed considered in Black v. ee pre- sented i in note ae 7 2 83-89 83-92 89-92 92-96 92-102 96-102 98-100 100, 101 102-107 107-109 102-111 109-111 111-114 114-119 119-123 111-128 123-128 126, 127 123-142 142-154 128-161 154-161 161-164 161-165 164, 165 166-168 166-170 168-170 171-173 171-180 173-180 179, 180 181, 182 181, 182 183, 184 CONTENTS. ix InFANCY, — continued. Jennings v. Rundall .« 2. 1. 1 1 ew ww ee eee (185-188 Homer v. Thwing. . 2. 2. . 1 1 ww ee ee eee «188-190 Penrose v. Curren . . 1 we ee ee ee ee we 191-195 Vassev. Smith . 2. . . 1 ee ee eee ee ee) 195-200 Johnson; Pies a. & & # & 4% & B Hv Ye we 4 200 Gilson v. Spear... 201-206 Infant not liable in an action ‘founded ‘pon ponitrack, thoagi in form ex delicto ; but liable when the action sounds in tort 185-220 Note. Same anbiect, and the torts, crimes, &c., of infants . . . eo ee a oe wt ee 206-220 Eaton v. Hill, resented i in note soe ee © ew + 210-214 Fitts v. Hall, presented innote . . . . . . . . 215-219 McCoonv. Smith. 2. 2. 1. 1 ew ee ew ee ww we 220, 291 , Spencer v. Carr . . . “Sa ee fe eo ca QBQ—BOS: Admissions and oopifagafont by infenda, ‘Estoppel. . . . 220-226 Note. Same subject. . . . . . 2... . « . 295,226 Sliver v. Shelback. 2 2. 1 1 ww ee ew ew we) 227, 228 Mills, Dieta ge es oe Be Se pw, he SO A HS Se -ig BOT OS Appearance. Judgments and decrees against infants. Day to show cause, &. . 1 1 we ewe ew ww ee) 227-238 Note. Same subject. . . . . . «© . . «6 . 282-238 Cuttsv.Gordon «2. ww ew we ww ee we 288-241 Burgess v. Merrill . . . . » + « 242, 243 Plea of infancy by one of several aaint defendant, Infancy as a replication to plea of non-joinder of an infant defendant 238-244 Note. Same subject. . . . . . . . . 2. 243, 244 CovERTURE . 6. ee ee ee ee ee ee ee we 245-521 _Cagev. Acton. . . » + « 245-254 Effect at law of itermiansiese ae contracting piaclea . . « 245-255 Note. Same subject. 2. 2. 2 2 2 1 1 ew + ee 254, 255 Cannel v. Buckle. . . . 255-257 Ante-nuptial agreements hetneen iiapand mel wiles in con- templation of marriage, sustained inequity . . . . . 255-257 Note. Same subject. . 2. 2 2 6 2 ee ee 257 Rippon v. Dawding . . . 1 ee ee ee ew ww + 257, 258 Bradish v. Gibbs . . . 259-274 Ante-nuptial agreement between husband and wife to slow wife to dispose of her real estate by will, sustained in equity 257-275 Note. Same subject. . - . . - 2 + « 2 + © 274,275 Martin v. Martin . . : . . + 275-279 Deed from husband dizactly ‘6 ti wife oid at law - + + 275-280 Note. Same subject. . . - 1. 2. « « « « 279-280 Shepard v. Shepard . . . . 280-286 Deed from husband aaa ‘ ‘is wife wie “sistained in equity . . .- eB a he Ge tse eo 2803293 Note. Same aubjeek « ince. coe 8 we «6 2864287 Sims v. Rickets, presented in note cee ew + 287-298 x CONTENTS. Coverturs, — continued. Livingston v. Livingston Post-nuptial contracts between husband and wife, whens sus- tained inequity . . 2. 1. ee ew ee Note. Same subject. Martin v. Dwelly . Deeds and contracts of Fens caewert effect af eons Note. Same subject . Jackson v. Vanderheyden : Bk RS Feme covert not bound by her ddntract, Estoppel . Note. Same subject. . . . . - . Watkins v. Halstead mate: fe Lee v. Muggeridge ee ee Contracts of femes covert. Whether revivable by new promise after coverture ended hes Bh Sh) cas Ue cae Sos Note. Same subject. Moral obligation whether a suffi- cient consideration for a subsequent promise to pay . Goulding v. Davidson, presented in note . Whitaker v. Whitaker 3 Ftc tek Husband’s interest in his wife’ 8 etoen in possession Note. Same subject. Limitations and exceptions . Magee v. Toland, presented in note . Buckley v. Collier er Wife’s earnings. Action therefor . Note. Same subject . Skillman v. Skillman . os de Ae a8 Wife’s earnings. Husband’s interest in . Note. Same subject Schuyler v. Hoyle What amounts to a reduction to ‘poasesctun of the lia s dis- tributive share so as to bar her survivorship, &c. Hayward v. Hayward Griswold ». Penniman Distinction between ante and post saptial ahisiea in ndion Note. Husband’s interest in his wife’s choses in action. Reduction to possession. Ante and post nuptial choses in action . Blount v. Bestland Nash v. Nash . Mere intent to reduce the wife’ s einen in eh en possession insufficient without some positive act of reduction Note. Same subject . Standeford v. Devol . a eriek, % Reduction to possession of wife's Huaséeis in actin Toteniion to reduce necessary . Note. Same subject . Mayfield v. Clifton 5 The possession of the husband to ampont to a -peluetlc of his wife’s choses in action must be in his own right Note. Same subject. 293-297 293-298 297, 298 298-309 298-810 309, 310 310-312 310-316 312-316 317-821 322-331 817-343 331-343 333-343 343-345 343-351 345-351 * 347-350 351, 352 351, 352 352 852-355 352-356 355, 356 357-370 357-370 370-383 383-386 370-386 386-392 392-395 395-400 892-400 400 401-406 401-408 406-408 408-415 408-416 415, 416 CONTENTS. CoverTurE, — continued. Howard v. Bryant. . . . 4 Reduction to possession of a chose i in action may be nade by receiving something else than that due by its terms . Note. Same subject Honner v. Morton Needles v. Needles Caplinger v. Sullivan . . 2, ah oe Assignment by husband. of wiles decir or setcuay interest in chattel interests expectant after a life-estate. Survivorship “a Note. Same subject. Siter’s case, presented in note . Arrington v. Yarbrough sarang Reduction of wife’s choses in niches te eidieen by assign- ment. Survivorship . Note. Same subject . Tuttle v. Fowler, presented in note 2 3 Shuttlesworth v. Noyes . 2. 2 6 6 ew ee ee 8 Dennison v. Nigh . . Whether or not wife’s ee in teller are abjewe to snnieee process for the husband’s debts Note. Cases collected . Sir Edward Turner’s case . Power of husband over his wife’s chattels real Mr. Raithby’s notes to said case . Robertson v. Norris . , Interest of the husband in aad his power’ over r his swith 8 land Note. Same subject. Liability of such interest to sale on execution against the husband, &c. Distinction between tenancy by marital right and curtesy initiate Gentry v. Wagstaff, presented in note Foster v. Marshall, presented in note . . . .. . Back v. Andrew Green v. King . ‘ é Estates by eabeetiee, Bo, gees tage eA Ved Golan ce tek) Pel 4, Note. Same subject. Effect of statutes abolishing joint tenancy, &e. . ‘ in . a Stuckey v. Keefe, piesentad in santé Ws AP, ar Gens Ames v. Norman, presented in note . Marston v. Norton Cutter v. Butler Wills of femes covert . : Note. Same subject. . 2. . 2. « 2 « © « Whitaker v. Whitaker Husband’s right of sdtninistation ange the estate of. bie wife, &c. . Note. Same sabject - Bn ie Se Heard v. Stamford, peerented | in note Hussy se fay cence 416, 417 416-418 417, 418 418-428 429-440 440-443 418-455 443-455 4438-455 455-464 455-472 464-472 465-471 472, 473 473-475 472-475 475 475, 476 475-418 476,477 478-481 478-487 481-487 482-484. 485-487 488 488-491 488-500 491-500 493-496 497-500 500-503 504-513 500-503 513 513-519 513-521 519-521 519-521 xii CONTENTS. Ip1ocy, Lunacy, &c. Mitchell v. Kingman . A person non compos ments may atiow his dliaubitity! in poids ance of his contracts . : a Note. Same subject. . . . se te Beverley’s case, presented in note Ball». Mannin. . Degree of unsoundness of mind requisite to avoid a | deed. Idiocy : Note. As regard the degree “of “incapacity sequined to disable from contracting, no distinction exists between idiocy, insanity, &c. Dennett v. Dennett : Degree of impairment of mane sequined to disable frome con- tracting . Note. Same ree : Allis v. Billings Thompson v. Leech In re Estate of Sarah Desilver . Conveyances of persons non compos, wheitien oid or vad able . : ‘ Note. Same sabject.. Ratification F Dexter v. Hall, presented in note . Carrier v. Sears Burke v. Allen . Contracts of persons non peamnas ‘whether reed or - yoidable. Indorsement of promissory note by non compos, &c. Note. Same subject. Who may avoid such voidable contracts, &. 3 Allen v. Berryhill, presented i in 1 ke 2 Middleborough v. Rochester Wightman v. Wightman . Marriage of one non compos said Note. Same subject . oe oes Seaver». Phelps . . . 2. 1. we ee Molton v. Camroux ae ee er ae Contracts of insane paieavies “Whee rescindable Note. Same ae Niell v. Morley . Contracts of insane per sons, when seeoindable | in ‘equi Note. , Same subject . ; Bagster (or Baxter) v. Earl of Portsmouth . Lunatic liable for necessaries . Note. Same subject . Morse v. Crawford Krom v. Schoonmaker . . . dBi Het. Te oe ok Lunacy no defence to action of tort. Measure of dam- ages, &e. ea Note. Same subject . 2 522-720 522-525 522-526 525, 526 526-533 534-547 534-547 547 547-558 547-558 558 559-564 564-566 566-569 559-574 569-574 570-573 574-576 576-587 574-600 587-600 588-600 600-602 602-609 600-610 609, 610 610-614 614-626 610-627 626, 627 628-631 628-632 631, 632 632-634 632-635 635 635-638 638-642 635-643 642, 648 CONTENTS. Iptocy, Lunacy, &c., — continued. Sloan v. Maxwell . Converse v. Converse Degree of mental capacity oquilsite i rides a valid will ‘ Note. Same subject Delafield v. ee presented in note Dew v. Clark : Partial insanity, when a , defeasance of a a ail. Note. Same subject . Dunham's Appeal, presented in note. Banks v. Goodfellow, presented in note . Attorney-General v. Parnther . Hall v. Warren F : Gombault v. The Public RGnntteinitos F General principles. Lucid intervals. Burden of Proof . Note. Same subjects Dear anD Dumps PErRsons . Brower v. Fisher . Not to be deemed iMiats, Sica me Note. Same subject. Blind petsnd) DRUNKENNESS Barrett v. Buxton . Gore v. Gibson Intoxication a defence bs a ; utieet Note. Same subject. Ratification, rescission, Se “ Cooke v. Clayworth : Intoxication when a eeound of relibfi in ants Note. Same oo Ayrey v. Hill 5 Effect of intoxication nari tertarmentary aarpaity * Note. Same subject . Duress . Stepney v. aloyat 5 . Duress of imprisonment under void process . Watkins v. Baird . Duress of jmapatlaonmnent by abuse of legal | praceen : Note. Same subject . Whitefield v. Longfellow Duress per minas ‘ Note. Same subject . e oo ad Astley v. Reynolds . - . - - + es te es xiii 643-651 652-655 648-659 655-659 656-659 660-673 660-691 673-691 673-678 678-691 691-696 697-703 703-715 691-720 715-720 721-727 721-724 721-727 724-727 728-759 728-734 734-738 728-740 738-740 740-744 740-746 744-746 746-758 746-759 758, 759 760-794 760 760 761-766 761-767 766, 767 767-771 767-773 771-773 7738, 774 xiv CONTENTS. Duress, — continued. Skeate v. Beale Sasportas v. Jennings Duress of goods . Notes. Same subject Hucombe ». Standing Thompson v. Lockwood . é Who may avail himself of duress ‘ Notes. Same subject InpEx . 775-781 782-185 . 178-787 . 175, 185-787 787, 788 789-793 787-794 788, 789, 793, 794 795-813 TABLE OF CASES REPORTED. Acton, Cace (GaGE or Gray) v.. ALLEN v. BERRYHILL ALLEN, BURKE v.. Autis v. BILLINGS Ames v. Norman. ANDREW, Back v. ARRINGTON 0. YAnenpuaw AsTLEY v. REYNOLDS ‘ ATTORNEY-GENERAL ¥. PanneER 3 AYREY v. HILL Back v. ANDREW BapGer v. PHINNEY ol |e ? Baaster (or Baxter) v. EArt « OF “‘PortsmouTH 3 BarnsripGE v. PICKERING . Bairp, WaTKINS v. Batu v. MANNIN . Barretr v. Buxton. - Baxter (or BaGsTER) v. Bane, ( OF "‘Porremoutit . Brae, SKEATE »v. Breese, Kine v.. BERRYHILL, ALLEN 2. BrsTLanD, BLount v. . Bever.Ley’s Case Brack v. Hiris Bioae, Homes v. Biount v. BESTLAND Boycotr, Keane v.. BrapisH v. GipBs Brower v. FISHER Bryanr, Howarp v. Buckie, CANNEL v.. Buckiry v. CoLiier Burcess v. MERRILL Burke v. ALLEN. BuTLeR, CUTTER v. . ‘Buxton, Barrett v. PAGE 245 588 576 559 497 488 455 773 691 746 488 126 632 55 761 534 728 632 775 100 588 892 526 183 111 392 259 721 416 255 351 242 576 504 728 xvi TABLE OF CASES REPORTED. CacE (Gace or Gray) v. AcToN . Camroux, Motron v. . CANNEL v. BUCKLE . CaPLINGER v. SULLIVAN Carr, SPENCER v. Carrier v. SEARS CHaPrPLe v. COOPER . Crarxk, Dew v. . . ws. Cuarke, STATE v. CLAYWORTH, COOKE v.. Curton, MAYFIELD v. . Cottier, Buckiey v. ConvERSE v. CONVERSE Cooke v. CLAYwoRTH . Cooper, CHAPPLE v.. Corps v. OVERTON . Crawrorp, Morsr v. . Coummines, Husparp 2. Curren, PENROSE v. Cutrrer v. BUTLER . Curts v. GorpDon Davipson, GOULDING ». Daworna, Rippon v. DeEaFIEcp v. ParisH DeEnnett v. DENNETT . Dennison v. NiGH Dennis, MILxs v. Desitver, EstaTE oF Devo, STANDEFORD ¥.. Dew v. CLark Dexter v Hatt. Drake v. Ramsay Dunuam’s APPEAL Dutcu, WHITNEY v.. ass te Ge Dwety, MarTIN v.. 2. 2... Eaton v. Hin Exuiotr v. Horn. Ferrow v. WISEMAN Fisurer, Brower v. . Firts v. Hari. FieminG, PETers v. . Foster v. MAaRsuaLu Furman, Pricer v. Gace (Gray or CaGEe) v. AcTon . Gentry v. WaGsTarF . . . 245 614 255 440 222 574 70 660 740 408 851 652 740 70 114 635 161 191 504 238 333 257 656 547 473 229 566 401 660 570 98 673 38 298 210 75 22 721 215 56 485 119 245 482 TABLE OF CASES REPORTED. GerrisH, Hae v. Gisss, BrapIsH vw . Gipson, GORE v.. Gitson v. SPEAR . GombBavutt v. PuBLic ADMINISTRATOR. GorDoN, CuTTs v. Gore v. Gipson . Govutpine v. Davipson Green v. Kine GriswoLp v. PENNIMAN Har v. GEerRRIsH. Hatt, Dexter »v.. Hatt, Fitts v. Hay v. WARREN. Hatt, WHITMARSH v. HAaLsTEaD, WATKINS v.. Harris v. WALL . Haywarp v. Haywarp Hearp v. STAMFORD. . Herpert v. TURBALL Hitt, Eaton v. Hitt, AyREY v. . Hitis, Buack »v. . Hotmes v. BLoce 4 Horr v. Ward CLARENCIEUX. Homer v. THWING Hownner v. Morton. Horn, ELuiott v. Howarp v. BRYANT. Hoye, ScHUYLER v. Hussarp v. CUMMINGS. HuscoMBe v. STANDING JACKSON v. VANDERHEYDEN . JENNINGS v. RUNDALL . JENNINGS, SASPORTAS 0. JOHNSON v. Pie . Keane v. Boycott . Kesre, STUCKEY ». . Kine, GREEN v. . Kineman, MircuH ete v.. ‘Kure v. Beese . Krom v. SCHOONMAKER. Lawson v. Lovesoy. . . ; Lez, Loyp v. . . . . se ew ew Lee v. MUGGERIDGE. . . +s - xvii 171 259 734 201 703 238 734 333 488 383 171 570 215 697 107 317 179 - 370 519 210 746 183 188 418 75 416 357 161 787 310 185 - 782 - 200 17 492 488 522 . 100 . 638 166 . 3833 - 322 Xvili TABLE OF CASES REPORTED. 564 293 760 . . 789 . . 167 166 Lencn, THOMPSON ». 2 6 1 ee ee ee ee Livingston v. LIVINGSTON . . . . - Luoyp, STEPNEY v . 1. we ee ee Locxwoop, THOMPSON v.. . . 1. 1 ee LonGrettow, WHITEFIELD »%» . . 2 6 ee ee tt tt Lovesoy; Lawson v. 2. 1 1 ew 8 ee eet Doyp: 0, LER ie al a we Mager v. Toranp «we we ee ee et BAT Mannin, Batt ve. 2 6 6 ee ee 534 Marr, SAUNDERSON %.. 1. 1 ee et 35 Marsnatt, Foster v. 2. we ee ee te 485 Marsron v. Norron . 2. ee ee ee et et 800 Martin v. Dwecty . . ee eee ee ee ee 298 Martin v. MarnTIN «we ee ee ee 295 Maxwetz, SLOAN v.66 ee ew G4 Mayrietp v. Curton . 6. ee ee ee ew we 408 McCoon v. SMITH «wwe ee ew 220 Mepzpury v. Warrous. . . . 2 6 ee ee ee ee ee + 102 Merritt, Burcess v. . . i ee te! Fh! Se cocnustte Mey Gt “Sy Oi ae Oe a MiIpDLEBOROUGH v. Roodeernn a gle! Bel Donte eet, So Bete ay 000 MitreR, PATMER WSs 4 i & & Bw x a & mw Be ee woe we a we TEL Micis)on DENNIS! sa: a de ee eS ee eG ae gp ae, 228 Mircuen, v. KINGMAN. 2. wee ee ee ee ww we 822 MOoLTon ». CamRoux «oe 2 we ek ee 8 eh Ue UH Ue ce lw he 6ST Moretanp, TUCKER v.. - we ew ee we ew ww we 128 IMORtiby, INTER: cae ir ae we Ree a a Morsk v. CRAWFroRD . . . ww ee ee ww ew ee we «685 Morton, Honnur v. . ‘ gf Ga Soa thy ay Ta SATS Muecrriwwer, Leew . 1... we eee eee ee 822 Mustarp v. Woutrorp’s Hnms ... . woe ee ew om aw TA2 Nasn vy Nast. «4 © «@ & 4% % ow w BS woe we we a a ee a BOB Nerepurs ve Newepews . . . ww we ee ee ee ee 429 Niett v. Moruey. . 2... we 8 . 628 Nicu, DenNnIson v. . > te: desde Ak eo oetss Be So - bisk ses NIGHTINGALE v. WITHINGTON . . . . www ee ee ee) 46 Norman, AMEs v. 5 Hows ee ee ee a ce er OT Norris, Roperrson v.. . BRR GE ed: ey as oe tee a EOS Norton, Marston »v. é BE iS ee EN este ee ae -&- 2 2600) Noyes, SHUTTLESWORTH v. . Behe lies i ak we aS, Sd sy, OvERTON, CORPE v.. . . - . 114 Parmer 0, MIDEER » 5 ® «8 &% 8 oe ew we ee we we we we ee AST Parish, DELAFIELD v%. .. 2. we ee ee we. 686 Parnrugr, ATTORNEY-GENERAL v.. . . . 1. we ee ww OL Parsons, Zouch v.. . . . ‘ ie % Splat Ri. 5 Tucker v. MorELAND . . we ee et et Turpatt, HERBERT v.. . 1 ee et et Turner's (Sin Epwarp) Case... - ee ee ‘VANDERHEYDEN, JACKSON Oecd al Pe Bote ee aS Vasse v. SMITH 2... we ee et Waastarr, GENTRY vp. 2 6 6 eee tt Watt, Harris v . . boi, Jet, a Rao BE Warp CLARENCIEUX, Ear, Wy He) Se crap RL RD ee Watkins v. Barrp . ww we ee ee Watnins v. HALSTEAD. «. . we ee ee Watrous, MEpBuRY v%.. . . . . eee WHITAKER v. WHITAKER . . ww 1 ee ee WHITAKER v. WHITAKER, EXECUTOR . ..... WHITEFIELD v. LONGFELLOW. . . . 6 se ee WuitmarsH v. HALL «ow ww ew ee Wuirtney v. Dutch. . . 2. . eee ee Wuittineuam’s Case . . . . 1. we ee ee WiGHTMAN v. WIGHTMAN. . . - . + e+ ee Wiseman, Ferrow v. . . . 1 wwe ee Wirutneton, NIGHTINGALE v% . . 1. we ee Woutrorp’s Heres, Musrarp v» . . . . 1. YarRBrouGcH, ARRINGTON». . . . 1. 1 ee es Zoucw v. PansoNS . . . 1 ew ee ee 564 789 188 347 36 128 475 310 195 TABLE OF CASES CITED. A. PAGE Aaron v. Harley 62, 69 Abbott v. Winchester 254 Abdil v. Abdil 233 Abell v. Warren 70, 109, 121, 147 Achey v. Stephens 716 Ackerman v. Runyan 225 Ackley v. Dygert 226 Ackly v. Hoskins 791 Acton v. Peirce 256 Adair v. Shaw 521 Adams v. Brackett 292 v. Lavender 887, 457 Addison v. Dawson 620 Adelphi Loan Association v. Fair- hurst 208, 219, 385 Aiman v. Stout 558 Albany Fire Ins. Co. v. Bay 813 Albee v. Carpenter 389 Albridge v. Burlison 813 Alcock v. Alcock 582, 588, 616, 617 Alderman v. Tirrell 233 Aldrich v. Abrahams 126 v. Grimes 25, 58, 165, 168, 174, 176, 177 Alexander v. Crittenden 475 v. Heriot 168, 174 v. Hutchinson 176 ev. Miller 594 v. Pierce 771 Allen v. Allen 81, 462 v. Berryhill 570, 571, 578, 588, Y v. Butler v. Minor 2 v. Roundtree 234 Allis v. Billings 569, 574, 588, 593, 594 Allison v. Taylor 234 Almond v. Bounell 491 Alsworth v. Cordtz 89, 226 Ames v. Chew 475 v. Norman 497 Anderson v. Irvine 237 v. State 719 v. Tannehill 818, 492 Andover v. Merrimack Co. 407 Andree v. Fletcher 628 PAGE Andress v. Weller 655, 759 Andrews v. Hartsfield 345 v. Jones 475 Andriot v. Lawrence 312 Angel v. McLellan 49, 63 Ankerstein v. Clarke 875 Apthorp v. Backus 233 Armfield v. Tate 159, 176 Armstead v. Hundley 147 Armstrong v. Armstrong 355 v. Simontown 346, 350 v. Timmons 716 Arnold v. Hodges 346 v. Richmond Iron Works 570, 578, 574, 598 v. Voorhies 23: 36 Arrington v. Yarbrough 387, 421, 448, 477 v. Screws 475 Arundel v. Phipps 284, 292, 295 Ashby v. Ashby 421, 443, 463, 464 Ashlin v. Langton 35 Ashfield v. Ashfield 160, 167 Ash’s case 604, 610 Astley v. Reynolds 778, 784, 785 Atehison v. Bruff 63 Athey v. Knotts 351 Atkins v. Banwell 831 v. Dawbury 422, 446 Atkinson v. Jameson 790 v. Matteson 790 v. Medford 610 Ex parte 578 Atlee v. Backhouse Attorney-General v. Parnther 778, 779, 785 636, 683, 698, 702 Austen v. Gervas 106, 116, 124 Austin v. Charlestown Female Sem- inary 90, 234, 235 Avogadro v. Bull 352, 355 Ayer v. Fitch 384 B. Babb v. Elliott 475 v. Perley 482 xxii Babbitt v. Scroggin 492 Babcock v. Doe 31, 32 Back v. Andrew 491 Badger v. Phinney 126, 146, 152, 161, 168, 215, 217, 335 Bagster v. Portsmouth see Baxter v. Portsmouth, s. c. Bailey v. Barnberger 97, 125 v. McGinnis 234 Bainbridge v. Pickering 63, 64 Baines v. Burbridge 316 Baker v. Childs 303 v. Hall 868, 869, 371, 377, 889, 412, 415, 450 v. Kennett 34, 58, 97, 101, 125, 158, 165, 176, 177 v. Lovett 54, 106 v. Morton 771 In re 556 Baldwin v. Carter 886 v. Dunton 558 Ball v. Mannin 556, 572 Ballard v. McKenna 626 Baller v. Delander 774 Baltimore, &c. R. R. Co. v. Fitzpatrick 234 Bane v. Detrick 771 Bank v. Stone 512 Bank of U. S. v. Lee 815 Banks v. Goodfellow 677, 718 v. Marksberry Banton v. Campbell Barber v. Fox 346, 350, 443 492 329, 330, 331 v. Harris 491, 495, 497 v. Root 469 Barker v. Comins 718 v. Wilson 82, 34 Matter of 578 Barlow v. Bishop 884, 885, 400 v. Smith 331 v. Wiley 243 Barnaby v. Barnaby 54, 165, 176 Barnes v. Hart 274 v. Hazleton 235, 238 v. Hedley 828, 330, 331, 336, 838, 339 v. Irwin 274 v. Pearson 462, 464 v. Treat 474 v. Underwood 519 Barnett v. Barnett 724 Barnsley, Ex parte 542 Barrett v. Buxton 547, 592, 594, 740, 746, 746 Barrington v. Horn 303 Barron v. Barron 291, 297, 298, 407 Barry v. Butlin - 720 v. Mandell 791 Bartholomew v. Finnemore 97, 125, 126 Bartlett v. Boyd 815 v. Cowles 126 v. Drake 126 v. Emery 54, 62 v. Wells 208, 219 Barton v. Robins : 726 Basham v. Chamberlain 355, 468 TABLE OF CASES CITED. 153 - Bassett v. Notworthy 767 Bates v. Butler ». Dandy 366, 894, 417, 423, 424, 42, 434, 436, 447, 467, 476, 477 v. Seabury i = v. Seely 509 Battersbee v. Farrington ae Bauer v. Bauer s Pa Bavington v. Clarke Baxter v. Abbott 720 v. Bush 165, 207 "Portsmouth 525, 578, 594, 611 : rel, 618, 622, 623, 625, 626, 735, 745 v. Prickett 355 v. Smith 314 liss v. Dinel 83, 52, 180, 132, 133 Bayliss v. Dineley 185, 138, Bie Beach v. Hollister 492, 497 Beacon v. Holmes 794 Beale v. Knowles 481 Beals v. See 595, 626, 635 Bear v. Hays 355 Beard v. Beard 283 Beaubien v. Cicotte Beaumont v. Reeve Beavan v. McDonnell 635, 655, 719, 720 . 832 595, 626, 627 Beaver v. Lane 378, 397 Beckett v. Cordley 219, 224 Beckley v. Newcomb 207 Beckton v. Beckton 236 Beeler v. Bullitt 90, 234, 236 v. Young Beeson v. Carleton Behrens v. McKenzie Belcher v. Belcher v. Hudson Bell v. Bell Beller v. Marchant Belote v. Henderson 62, 63, 64, 69, 70 593 589, 626, 642 746 253 279, 345, 355, 406 206 771, 798, 794 Bemis v. Call 255, 315 Benham v. Bishop 175, 176, 178 Bennet v. Aburrow 274 v. Davis 276 v. Lee 237 v. Vade 542 Bennett v. Child 492, 497 v. Davis 85 v. Dillingham 387 v. Ford 787 Benoist v. Murrin 655, 720 Bensell v. Chancellor 526, 578, 591 Benson v. Remington 48, 49 v. Wright 235 Bent v. Manning 64, 69 Bentley v. Morse 831, 339 Benton v. Sanders 159 Beresford’s case 489 Berolles v. Ramsay 68 Bessey v. Lambert 642 Best v. Givens 53, 176, 177 Betts v. Kimpton 371 Beverley’s case 522, 523, 524, 542, 555, 671, 572, 578, 588, 591, 611, 618, 619, 622, 624, 638, 729, 730, 731, 785 TABLE OF CASES CITED. Bibb v. McKinley 848, 351, 887, 888 Bicknell ». Bicknell 69 Biffin v. Bignell 778 Bigelow v. Grannis 29, 177, 182 v. Kinney 101, 124, 165 Biggs v. McCabe ‘ 97 Bingham v. Sessions 772, 786, 787 Birdsong y. Birdsong 738, 746 Bishop v. Blair 481 Bisland v. Provosty 815 Bissett v. Bissett 794 Black v. Ellis 652, 759 v. Hills 128 Blackburn v. Stupart 790 Blackwell v. Blackwell 816 Blake v. Bunberry 894 v. Douglass 234 Blanchard v. Blood 845 v. Nestle 556, 558, 655, 658, 659 Blount v. Bestland 868, 369, 371, 874, : ; 887, 406 Boardman v. Woodman 673 Boatright v. Wingate 254 Bobo v. Hansell 58, 176 Bodine v. Killeen 315, 816 Bogle v. Hammons 771 Bomar v. Mullins 492 Bond v. Bond 558, 578, 574, 627 v. Conway 890, 391 v. Cutler 770 v. Simmons 887, 398, 457 v. State 719 Bonney v. Reardin | 64, 180 Boody v. McKenney 29, 58, 97, 100, 128, 124, 152, 165, 168, 174, 178 Bool v. Mix 381, 82, 90, 94, 97, 105, 121, 147, 156, 157, 182 Booth v. Rich 230, 238 Boozer v. Addison 856, 390, 891 Borst v. Spelman 890 Bosley v.. Shanner 772 Boston Bank v. Chamberlin 32, 48, 184, 189, 158, 161, 164 101 417, 476, 477 719 Bostwick v. Allen Bosvil v. Brander Boswell v. Commonwealth Bonche v. Ryan 233 Bouchell v. Clary 53, 62, 65 Bouslaugh v. Bouslaugh , 856 Bowers v. Thomas 789 Bowie v. Stonestreet 291, 297, 407, 408 Bowker v. Lowell 766 Boyce v. Smith 558 Boyd v. Eby 657, 673 Boyden v. Boyden Boyle v. Webster Bradford v. Buckingham 814 v. Chicago 772 Bradish v. Gibbs 274, 275, 502, 505 Bradley v. Amidon ‘ 234 127, 150, 168, 174 244 v. Pratt 58, 62, 69, 71 v. State 719 Bramhall'v. Hall 265 Brashford v. Buckingham 384 xXxXuL Brawner v. Franklin Brayshaw v. Eaton Breck v. Blanchard 766 Breckenridge v. Coleman 818 v. Ormsby 26, 31, oi Breed v. Judd 126 124, 126, 146, 152 62, 64 Brick v. Scott 313 Bricker v. Whatley 488 Bridgford v. Riddell 845 Bridgman v. Holt 545 Bright v. Boyd 224 Briggs v. Boyd 786 v. McCabe 58, 126 Brinckerhoff v. Lansing 228 v, Thalhimer 231 Bristow v. Eastman’ 189, 208, 218, an Britton v. Wheeler 248 v. Williams 54 Broadwater v. Darne 738 Brook v. Hertford 236 v. Turner Brooke v. Gally Brooker v. Scott Brooks v. Berryhill v. Haigh : 779 509, 511, 512 29, 68, 65, 66, 67, 68 788 Broome v. King 846, 351 Brotherow v. Hood 417 Broughton v. Knight 677 Brower v. Fisher 726 Brown v. Armistead 236, 238 v. Brown 726 v. Caldwell 53 v. Coon 315. v. Dunham 208, 214 v. Fitz 346 v. Freed 573 v. Gale 482 v. Getchell 770 v. Jodrell 591, 595, 618, 622, 625, 785 v. Lindsay 484 v. McCune 208, 219, 226 v. Langford 391 v. Peck 793 v. Perry 30 v. Pierce 771 Browne v. Shore 859, 372 Brownell v. Talcott 772 Browning v. Headley 421, 464,471, 472 v. Reane 577, 602, 609, 610 Brownson v. Hull : 492 Bruce v. Warwick 55 Brunner’s appeal 316 Bryan v. Bryan 845, 462 v, Spruill 464 Bryant v. Allen 513 v. Jackson \ 643 v. Pottinger 126 v. Richardson 66, 69 Buckinghamshire, Earl of, ». Drury : 118, 127, 257 Buel v. McGregor 659 Buffington v. Gerrish 127 XXiv Bugg v. Franklin 464 Bullard v. Spoor 233 Bullock v. Babcock 206 Bunch v. Bunch 288 Burchet’s case 352 Burgess v. Merrill 240, 244 Burghart v. Angerstein 63, 68 v. Hall 58, 59, 63 Burke v. Allen 526, 588 Burleigh v. Coffin 254, 279, 481 Burley v. Russell 26, 204, 219 Burnard v. Haggis 208 Burnet v. Kinnerton 366 Burnett v. Kinaston 434, 446, ce Burnham v. Bennett 8 v. Mitchell 526, 558 v. Porter 226 v. Seaverns 206 Burns v. Hill 219 Burr v. Burton 787 v. Sherwood 406 Burroughs v. Richman 738 Bury’s case 606 Bush v. Brown 767, 793 v. Dalway 428, 424, 425, 426, 446 v. Pettybone 526, 642 Bushman »v. Pell 476 Bushnell v. Harford 236 Butterfield v. Beall 481, 482 Butler v. Breck 34, 83 ov. Buckingham 305 v. Morris 244 Butricke v. Broadhurst 894 C. Cable v. Martin 888 Cadwallader v. West 558 Caffey v. Kelley 346 Cage v. Acton 254, 255, 256, 427, 448, 454, 467 Cain v. Bankley 356 v. Warford 558 Caldwell v. Walters 314 Caller v. Metzer 486 Calmady v. Calmady 356 Campbell v. Campbell 235 v. French 370 v. Hooper 626 v. Ketcham 746 v. Stakes 208, 209, 210, 212, 218, 216 Canby v. Porter 482, 485 Canfield v. Fairbanks 682 Cannel v. Buckle 254, 255 Cannon v. Alsbury 54 v. Hemphill 236 Caplinger v. Sullivan 846, 851, 428, 477 Carleton v. Lovejoy 406 Carley v. Green 279 Carnahan v. Alderdice 85 Carpenter v. Carpenter 97, 125, 126, 127, 219, 355, 558, 716 v. Schermerhorn 815 TABLE OF CASES CITED. .C 351 oo = Clough 97, 125, 126, 127 v. Holliday 595, 596, 632 v. Taylor 868, 384, 451, 457 52, 169, 178, 178 588 150 365, 516, 521 591 Carrell v. Potter Carrier v. Sears Carrington ». Goddin Cart v. nA 9 Carter v. Bear v. Paschal 866, 447, 448, 467, Carteret 5 W76, 48 Carthrae v. Clarke 792 Cartwright v. Cartwright 683, 694, 695, 696, 697, 702, 711, 716 v. Hollis 279, 812 Cary v. Hotailing 334 v. Taylor 860, 878, 375, 376, ks ’ Casson v. Dade Caswell v. Hill 845, 407 Caulkins v. Fry 738 Cavender v. Smith 233 Cecil v. Salsbury 99, 100, 167 v. Juxon 276, 356 Central Bank v. Copeland 778, 794 Chadbourne v. Rockliff 156 Chalfant v. Monroe 285 Chamberlain v. Hewson 467 Chamberlain of London v. Evans 731 Chambers v. Perry 346, 350 : v. The Queen’s Proctor 711 Chambers (Ordinary) v.. Wherry 176 Chambovet v. Cagney 496 Chandler v. Commonwealth 206 v. Glover 177, 178 v. McKinney 33, 235, 238 v. Parkes 239, 243 v. Simmons 126 Chandos (Duke of) v. Talbot 425, 434, 447 Chapin v. Shafer 81, 34, 96, 97, 101 Chapman v. Chapman 97, 101 v. Kellogg 264 Chappell v. Causey 388, 389 Chapple v. Cooper 65, 68, 70, 83 Charters v. Boynton 69 Chase v. Dwinal 775, 786 v. Palmer 406, 407 v. Scott 285 v. People 719 Cheek v. Waldrum 481, 482 Cheshire v. Barrett 25, 84, 45, 53, 168, 1 Chew v. Bank of Baltimore 588, 627 Chouteau v. Merry 313 Christmas v. Mitchell 724, 726 Churchill v. Suter 729 City Council v. Van Roven 314 Clamorgan v. Lane 158, 160 Clapp v. Stoughton 872, 380, 382, 481 Clark v. Goddard 54, 109 y v. Thompson 248, 252, 253 Clarke v. Clarke 703 v. Clement 790 v. Fisher 658 v. Leslie 69 . TABLE OF CASES CITED. Clarke v. McCreary 845 v. Metcalf 622 uv. Pease 798 uv. State 636 Clawson v. Doe 156 Clearwater v. Kimler 658 Cleary v. McDowell 481 Clement v. Mattison 609 Ex parte 643 Clere’s (Sir Edward) case 274 Clerk v. Clerk 617, 620 Clevenstine’s appeal 345 Clifton v. Haig 879, 890 Clinton Station Manufacturing Co. v. Hummell 855 Clowes v. Brooke 69 Coates v. Wilson 71, 74 Cockshott v. Bennett 25, 333 Coffey v. Home Life Ins.'Co. 716 Coffin v. Heath 237 v. Morrill 3889, 509 Coggs v. Bernard 189 Coghlan v. Coghlan 695, 711 Cogley v. Cushman 97, 124, 165 Cohen v. Armstrong 30, 179 Colcord v. Swan 802, 318, 315 Cole v. Cole 610 v. Pennell 235, 243 v. Pennoyer 26, 34 v. Robins 731, 737 v. Saxby 177 Coleman v. Frazer 558 v. Robertson 652 uv. Satterfield 481, 482 Collard v. Groom 236 Collins v. Brook 234 v. Westbury 787 In re 716 Combe’s case 656, 682 Commissioners v. Perry -331 Commonwealth v. Canada 770 v. Cushing 81 v. Dana 719 v. Gamble 81 v. Green 220 v. Hantz 80 v. Harrison 81 v. Heath 719 v, Hill 726 v. Kimball 719 v. Manley 345, 372, 880 381, 386, 38y, 417 v. McKie 719 v. Mead 220 v. Murray 81 v. Rogers 677, 719 Compton v. Collinson Comstock v. Carr . v. Hadlyme Concord Bank v., Bellis 269, 276, 507 238 655, 675, 720 313 Conklin v. Ogborn 28, 176 v. Thompson 206 Conn v. Coburn 53, 70 Connaway v. Shelton 28 Connolly v. Brantsler 815 XXV Connolly v. Hull 68, 244 Connors v. Connors 355 Conny’s case 10 Conroe v. Birdsall 81, 62, 184, 140, 151, : 2 19 Converse v. Converse 556, 655, 658 Cook v. Bradley 3382, 333 v. Cook 716 v. Deaton 62, 63 v. Moore 793, 794 v. Tatten ae v. Toombs 226 Cooke v. Clayworth 785, 787, 738, 740, 745, 746 v. Parsons 238 Cooper v. Cooper 492 v. Martin 321 Copeland v. Wadleigh 770 Coppin v. —— 884, 891, 398 Corbit v. Smith 593, 716 Cordrey v. Cordrey 655 Corey v. Burton 97, 124, 126,168 ~ Cork, &c., R’way Co. v. Cazenove 102, 174 Corley v. Corley 388 Cornwall v. Hawkins 178 v. Hoyt 292, 386, 389 Corpe v. Overton 104, 105, 106, 109, 121 128, 126, 627. Cory v. Cory 742, 748, 745, 759 Cost v. Rose 235 Cothay v. Sydenham 508, 512 Counts v. Bates 90, 169 Cowper’s (Lady) case 284 Cox v. Kitchen 335 Crabtree v. May 170 Cragg v. Holme 742, 745 Craighead v. Wells 124 Craig v. Sebrell 154 Cramer v. Reford 355 Crane v. Conklin 746 Cranmer, Ex parte 542 Craven v. Hanley 774 Crawford v. Brady 416 v. Commonwealth 569 v. Cato 787 Creagh v. Blood 556 Creath v. Smith 237, 238 Cressinger v. Welch 99, 101, 147, 155, 156 Crispe v. Mayor of Berwick 774 Croan v. Joyce 492 Crockett v. Drew 284, 235 Cronise v. Clark 33 Crook v. Turpin 464 Cropsey v. McKinney 355 Crosby v. Otis 345, 351 Cross v. Andrews 522, 591, 618, 622, 633, 7380 v. Kent 642, 648 Crouse v. Holman 558, 570, 593, i Crowder v. Stone Crowell v. Gleason 766, 767, 170 Crowninshield v. Crowninshield 720 Crowther v. Rowlandson 558 Crozier v. Bryant 380 Cruikshank v. Gardner 233 XXvi Crump v. Morgan Culpepper’s case Cumber v. Waine Cumming »v. Ince Cumniings v. Henry v. Powell Curry v. Fulkinson TABLE OF CASES CITED. 609 153 774 167 3 739 26, 34, 45, 125 388, 390, 391, 392 Curtin v. Patton 26, 29, 99, 189, 140, 177, Curtis v. Hall Cutts v. Gordon D. Dade v. Alexander Dallas v. Hollingsworth 124, 165, 167, 168, 173 Dalton v. Gib Dana v. Coombs v. Stearns 192, 219, 220 738 243 350 109, 157 62 165, 169, 175 Dane v. Kirkwall 578, 584, 594, 617, 621, Daniel v. Daniel v. Rose v. Upley Daniels v. Adams v. Richardson 886, 891, 400, 4 Darby v. Boucher v. Haytord Darcy v. Chute v. Jackson Darcy’s case Darnall v. Adams Darwin v. Hatfield Davidson v. Young Davies v. Grindley Davis v. Burnham . Bryan . Caldwell Clark Fox Foy Lane Rhame Tingle . Zimmerman Dawbury v. Atkins Dawson v. Dawson v. State Day v. Cochran v. Pargrave Deadrick v. Armour Deane v. Richmond Dearborn v. Eastman Dearman v. Dearman Deason v. Boyd Decker v. Livingston Deerly v. Mazarine Deford v. State Delafield v. Parish Delancy v. McKeen Delano v. Blake Deming v. Williams De Mill v. Lockwood Dempsey v. Tylee ssesesees 622, 625, 626 347, 851 313 276 303 17 69 558 254 15 256 346 236 315 556 279, 312 624 62, 68, 64, 67 492 793 313 577, 588, 586 347, 349, 887 226, 316 345 429, 446 388, 391 643 485 377, 898, 399 346 382, 389 132 77 29, 168, 174 481 507 234 . B68, 655, 656, 720 315 174 291 101, 159 280 Den »v. Sig ao v. Gibbons v. Hardenbergh 491, 492, ae v. Johnson 647, 6 v. Vancleve 649, 650, re v. Whitemore Dennett v. Dennett 547, 673, 738 Dennison v. Nigh 3881, 473 Densmore v. Cowan 213 Dentzel v. Waldie 314 De Pierres v. Thorn 313 Deputy v. Stapleford . 798, 794 Derocher v. Continental Mills 109 De Roo v. Foster 03, 219 Derrick v. Kennedy 182 Desilver, Estate of, 570, 578, 592, 594 Develin v. Riggsbee - 84, 88 De Witt v. Barley 635 Dew v. Clarke 543, 558, 676, 682, 684 Dexter v. Hall 570, 588 v. Nelson 17 Dial v. Neuffer 314 Dias v. Glover 498, 494, 496 Dicken v. Johnson 558, 716 Dickenson v. Blisset 728, 724 Dickinson v. Barber 643 v. Brown 770 v. Codwise 491 Dilk v. Keighley 70 Diller v. Johnson 766 Dixon v. Dixon 387, 406, 417, 465 Dodge v. Adams 332 } o. Meech 716 Doe v. Abernathy 31, 82, 156, 596 v. Bronson 492 v. Brown 233 v. Garrison 492 v. Howland 807, 491 v. Keene 348 v. McKinney 77 v. Polgrean 350 v. Roberts 28, 87 v. Rutledge 17 v: Staple 268 v. Straphan - 810, 327, 828,330 v. Weller 310 Dold v. Geiger 475, 481 Dominick v. Michael 31, 82, 90, 156, 314 Donne v. Hart 428 Donnegal’s case 542 Doolittle v. McCallough 793 Dorchester v. Webb 248 Dorrance v. Scott 318 Dorrell v. Hastings 69 Doswell v. Earle 417 Doty v. State 719 v. Wilson 337 Douglas v. Watson 89 Dougherty v. Snyder 255 Doyley v. Perfol 476 Dow v. Sewell 237 Drake v. Ramsay 98, 101, 154, 156 v. Wise 159 871, 875, 376, 382, 389, 390, 478 Draper v. Jackson TABLE OF CASES CITED. Drayton v. Dale 58, 580 v. Drayton 236° Drummond v. Hopper 738 Drury v. Drury 82, 118 v. Foster 815 Duberley v. Day 448, 477 Dublin, &c., Railway Co. v. Black 102, 169, 174 Dublin v. Chadbourne 501 Dubose v. Wheddon 49, 62 Duffield v. Morris 678, 758, 759 Duke de Cadaval v. Collins 780 Duncan »v. Roselle 855 Dunham’s appeal 655 Dunlap v. Hales 176 Dunnage v. White 748, 745 Dunn v. Dunn 182 Dunning v. Pike Dunton v. Brown Durnford v. Lane Dutch v. Warren 773 Dutton v. Poole 285, 286 Duvall v. Graves 34, 45, 158 312 33, 55, 96, 109 257 E. Eadie v. Slimmon Eagle Fire Co. v. Lent 773, 788 32, 155, 158, 182 Eames v. Sweetser ~ 68, 64 Earle v. Peele 69 v. Reed 58, 62 Early ». Sherwood 3889 Eastwood v. Kenyon 3820, 321, 332, 333, 886, 339, 341 East India Co. v. Donald 744 Eaton v. Hill 208, 214 v. Perry * 739 v. Tillinghast 235 Ebbett’s case 102 Eckstein v. Frank 127, 217 Eddy v. Herrin 771 Edgerly v. Shaw 25, 176 v. Whalen 279 Edgerton v. Wolf 97 Edwards v. Davis 318, 832, 333 v. Freeman 360 v. Handley 772 v. Sheridan 292, 389 Ehle v. Judson 332, 337, 338 Elliot v. Collier 865, 877, 389 v. Collins 516 Elliot’s case 723 Elliott v. Bently 355 v. Horn 84, 54 v. Ince 626, 632 v. Nichols 492 Ellis v. Baldwin 416 v. Ellis 69, 476 Ellison v. Elwin 421, 435, 448, 463, 464 Ellsworth ». Cook 345 Elrod v. Lancaster 238 v. Myers 63 Elson v. O’Dowd 816 Elston v. Chicago 772 xxvii Elwell v. Martin 209 Elwin v. Williams 421, 464 Emery v. Hoyt 715, 716 v. Neighbor 606 v. Wase 8038, 699 Emmons v. Murray 97, 158, 159, 176 v. Scudder 787 English v. Wright 315 Esron v. Nicholas 226 Essex, case of the Earl of, 606 Esslinger v. Huebner 813 Etter v. Curtis 234 Evans v. Bicknell 744 v. Huey 794 v. Kingsberry 481, 482 v. Terry 214 Evelyn v. Chichester 100, 167 Everett v. Wilkins 126 Everson v. Carpenter 58, 178 Evroy v. Nicholas 219 Ewart v. Nagel 314 Ewbanks v. Peak 168 Ewer v. Jones 45 Exum v. Davie 483 Eyle v. Judson 320 F. F. E. Society v. Mather 292 Fagan v. Walker 486 Fagg’s case 146, 153 Fairchild v. Bell 331 v. Chastelleux 491, 497 Fairhurst v. Liverpool Adelphi Loan Association 835 Fant v. Cathcart 53 Farnam v. Brooks 558 Farnham v. O’Brien 882 Farr v. Sumner 96, 125 Farrar v. Bessey 312 Farrell v. Patterson 855 Faulder v. Silk 622, 548, 545, 616, 633 Fearing v. Clawson 233 Felder v. Johnson 787 Feller v. Green 766 Fenton v. Holloway 591 v. White 62 Ferguson,v. Bell’s Adm’r 34, 90, 159 Ferne, Ex parte 629, 699 Fetrow v. Wiseman 82, 84, 44, 45, a 505, 506 Fettyplace v. Gorges Finch v. Finch 295, 502, 509 Fincham v. Edwards 726 Fish v. Ferris 208 Fisher v. Kimball 512 v. Mowbray 32, 52, 116, 180, a v. People 719 v. Shattuck 766, 794 Fitch v. Ayer 292, 386 v. Brainard 505 Fitts v. Hall 123, 126, 127, 208, 204, 205, 208, 210, 211, 212, 214, 219 | XXviii Fitzgerald v. Fitzgerald 255 v. Reed 596, 627 Fitzhugh v. Dennington 3 v. Wilcox 588, 598, 599, 626 Fleet v. Perrins 851, 391 Fletcher v. Coleman 318, 315 Flynn v. Powers — 55, 234 Fonda v. Van Horne 26, 81, 45, 105, 106, 573 Forbes v. Phipps 461 Ford v. Fothergill ; 62 v. Phillips 29, 172, 178, 175, 176, 177 Forsyth v. Hastings 111, 178 Fort v. Battle 387 Fosdick v. Collins 215 Foshay v. Ferguson 771, 772, 773, Eat . 7 Foss v. Hildreth 771 Foster v. Fifield 388 v. Means 609 z. Redgrave 68, 64 v. Smith 378 v. Wilcox 318, 833 Fountain v. Cain 3T 2 Fowler v. Shearer 277, 302, 306, 318, 315 Fox v. Fletcher 492 Franco v. Franco 476 Franklin v. Beatty 832 v. Thornebury 100, 167 Franks, Ex parte 507 Frauncis v. Holmes 582 Frazier v. Massey 53 v. Rowan 157 Freeman v. Bridger 638, 70 v. Bradford 17 ‘v. Goodham (or Goodland) 520 Freemantle v. Banks 292 Freer v. Walker 313 French v. French 746 v. Mehan 491, 493, 497 Frere v. Peacock 673 FreVil’s case 7 Fridge v. The State 33 Frierson v. Frierson 407, 408 Frogmorton v. Wharrey 490 Frost v. Wolverton 187, 149 Fryer v. Gildridge 455 Fulbright v. Cannefox 234 Fulleck v. Allinson 673 Fuller v. Bartlett 312 v. Naugatuck R.R.Co. 886, 390 Fulton v. Hood 788 v. Moore 816 Furlong v. Bartlett 46 G. Gaffhey v. Hayden 109 Gage v. Acton, see Cage v. Acton, s. c. Gaines v. Poor 2 Gallego v. Gallego 878, 390 Gangwere, In re 598, 715, 716 Gannard v. Eslava 475 TABLE OF CASES CITED. 759 656, 673 367, 871, 876, 384, 385, 889, 451, 457 Gardner v. Gardner v. Lamback Garforth v. Bradley Garner v. Board 109, 110 v. Cook 53 Gaskarth v. Lowther 699 Gaters v. Madeley 890, 400 v. Meredith 643 Gaunt v. Wainman 815 Gavin v. Burton 34, 83 Gay v. Ballou 29, 61, 63 v. Kingsley 279 v. Rogers 352 Gayer (or Gayner) v. Wilkinson 427, 447 Gebb v. Rose 279, 280, 309 Geer v. Archer 821, 832, 337, 339 v. Hovey 203, 214 Gentry v. Wagstaff 482 George v. Bussing 511 v. Goldsby 309, 310, 443, 464, 484 v. Ransom 279 Gerrish v. Nason 720 Gibbs v. Merrill 25, 239, 242, 331 Gibson v. Gibson 255 v. Joyes 578 v. Land 346 v. Soper 126, 570, 573, 574, 595, 627 Gill v. Fauntleroy 486 Gillespie v. Worford 314, 485 Gillett v. Ball 793 v. Camp 388 v. Stanley 82 Gilson v. Fisk 214 v. Spear 195, 200, 206, 210, 214, 219, 226, 243 Glass v. Beach 331 v. Doe 233 Glidden v. Strupler 315 Glover v. Ott Glyde v. Keister Glynn v. Thomas 786 Gochenaur’s estate 405, 407, 408, ae 7 Godbold v. Bass 880, 381, 389, 391 220 64, 65, 69, 71 313 Goddard v. Johnson Godfrey v. State Godson v. Sanctuary 3 Gohegan v. Leach 788 Gombault v. Public Administrator 716 Goode v. Harrison 170 Goodier v. Ashton 230 Goodsell v. Myers 25, 29, 49, 58, 178, 175, 176, 177 Goodwin »v. Lister 296 v. Morgan 280 Goodwyn v. Goodwyn 417 Goodwright v. Strophan 310, 327, 328, 330 Gore v. Gibson _ 526, 592, 594, 617, 619, 621, 625, 789, 740, 745, 746 Goshen v. Richmond 609 Gould v. Carlton 355 Goulding v. Davidson 817, 382, 383 TABLE OF CASES CITED. Governor v. Williams 794 Grace v. Hale 45, 64, 69, 97, 125 Granbery v. Mhoon 46 Grant v. Thompson 526, 596, 611 Gray ». Acton, see Cage v. Acton. s. ©. Gray’s estate 407 Green, garnishee of 475 v. Goodall 846 v. Greenbank 202, 208, 218, ae 16 v. King 488, 495 v. Scranage 788 v. Sperry 207, 208 Greenlaw v. Greenlaw 492 Greenleaf v. Hill 389 Greenough v. Wigginton 318 Greenwood v. Greenwood 656, 671, 672, 678, 682, 695 v. Tyber 802, 484 Greenwood’s case 656, 671, 672, 678, 82, 695 Gregg v. Crowcher 447 v. Soward 345 Gregory v. Ford “481 v. Molesworth 236 Greneley’s case 486 Grey v. Cooper 53, 89 o. Grey 77 o. Kentish 422, 428, 424, 425, 447 Grice v. Grice 360 Griffin v. Taylor 303 Griffith v. Clarke 316 v. Chew 455° v. Schwenderman 53 Grimes v. Briggs 767 Griswold v. Penniman 872, 374, 375, 876, 889, 397, 400 Grout v. Townsend 815 Grove v. Nevill 186, 200, 202, 218 Grute v. Locroft 448, 496 Guion v. Anderson 481, 482, 487 Guthrie v. Gardner 17 v. Morris 62 v. Murphy 63 Gwynn v. Hamilton 346 H. Hackett v. Kendall 581 v. King 767 Hadfield’s, Jas., case 666, 667, 671 Haigh v. Brooks 779 Haigler v. Way 282, 235 Haile v. Lillie 225 ‘Haine v. Tarrant 62, 70 Hair v. Avery 846, 388 Haker v. Boggs 279 Halder v. Preston 272 Hale v. Gerrish 29, 31, 102, 161, 169, 175, 176, 177. Hall v. Corcoran 208 v. Hardy . 808 v. Jones 182 v. MeLain 388 Hall v. Schultz v, Timmins v. Unger v. Warren v. Weir v. Young Hallenbeck'v. Bradt Hallett v. Oaks Halley v. Webster Haly v. Lane Ham v. Bood. Hamaker v. Hamaker Hamblett v. Hamblett Hamilton v. Lomax “Hamlet v. Richardson. Hamlin v. Jones v. Stevenson Hammond v. Hopping Hampson v. Sydenham Hancock »v. Field v. Peaty Hancock Bank v. Joy Handcock, v Hands v. Slaney Hanna v. Spotts Hannan v. Oxley Hapgood v. Houghton Harbison v. Lemon Harcourt v. Knowel v. Wyman Harden v. Hays Hardie v. Cotton Hardin v. Smith Harding v. Springer Hardy v. Scanlin v. Waters Harlan v. Barnes Harleston v. Lynch Harmer »v. Killing Harmon v. Harmon Harmony v. Bingham Harney v. Owen Harper v. Archer Harper’s will Harris v. Cannon v. Lee v. Taylor v. Tyson ev. Wall v. Youman Harrison v. Adcock v. Buswell v. Fane v. Rowan Harrington v. Stratton Harrod v. Myers Hart v. Johnson v. Prater v. Stephens Hartfield v. Roper Hartley v. Wharton Hartman v. Dowdel v. Kendall Hartness v. Thompson Harvey v. Ashley xxix © 776 226 716 558, 694, 697 6: 4 407, 475, 509 345 594, 596 716 580, 584 314 610 126, 225 54 778 345 3 336 178 249 610 314, 389 80, 131 57, 68, 71, 74 236 286 889, 391 593 153 481, 483 716 771, 772 775, 786 54, 106, 109 * 886, 388, 406 759 101, 156 69, 178 388, 475 787 25, 176, 179 287, 238 156 606, 608 64, 65, 66, 69 649, 652, 657, 688 62 90 496 69 400, 406 208 30, 179, 180 445, 447, 471 97, 101 89, 240 257 XXX Harvey v. Harvey 258 Harwood v. Baker 657, 689 Hassard v. Rowe 70 v. Smith . 626, 6382 Hastings v. Dollarhide 82, 46, 53, 90, 97, 101, 155, 160 Haviland v. Bloom 468 v. Myers 468 Hawes v. Hatheway 234 v. Marchant 794 Hawkes v. Saunders 331, 3888 Hawkins v. Obyn 425, 434, 447 Hawley v. Burgess 292 vy. Farrar 832 Hawthorn v. King 675 Hayes v. Ewell 443 Haynes v, Swann 716 Hayward v. Hayward 351, 386, 887, 389, 897, 400, 417, 469, 478, 475, 481 Tlazelbaker v. Goodfellow 855 Hazelrigg v. Donaldson 787 Heard v. Stamford 852, 519 Hearle v. Greenbank 263 Heath v. Ashley 235 v. Stevens 123, 126 v. Watts 673 v. West 97, 124, 165 v. White 486, 487 Heaton v. Fryberger 809 Heavener v. Godfrey 316 Hebert ». Winn 759 Hedgley v. Holt 54, 69 Helm v. Helm 771 Helps v. Clayton 70 Hemphill v. McClimans 332 Henderson v. Fox 84 v. Guiot 387 v. McGregor 558 Hendricks v. McLean 237, 238 Henley v. Phillips 611 Hennessey v. Ryan 818, 316 Henry, v. Fine 627 v. Root 58, 165, 176, 177 Herbert v. Lows 656 ‘Hesketh v. Lee 232 Hesser v. Steiner 53 Hetherington v. Hixon 318, 333 Hetrick v. Hetrick 519 Hewit v. Crowcher 447 Heygate v. Annesley 868, 451, 458 Hickman v. Hall 69 Hicks v. Cochran 494 Higgins v. Carlton 719, 720 v. Willis 313 Highley v. Barron 125, 159 Hill v. Anderson 128, 150 ‘ v. Foley 851 v. Hill 345, 888 v. Royce 406 v. Saunders 484 v. Townsend 448, 464 v. United States °766 v. West 815 Hill’s case 723 Hill and Whittington’s case 117 TABLE OF CASES CITED. 367, 384 122, 126, 146, 152 407, 408, 416 26, 29, 176, 177, 178 Hilliard v. Hambridge Hillyer v. Bennett Hind’s estate Hinely v. Margarita Hinman v. Parkis 297, 355 Hitchcock v. Coker 781 4 v. Tyson 178 Hitt v. Ormsbee 235 Hobart v. Lemon 814 Hoblin v. Lupart 249 Hockaday »v. Sallee 891, 475 Hodges v. Beverly 360, 397 v. Hunt 176, 177 Hodsden v. Lloyd 507 Hodsman v. Grissel 218 Hodson v. Davis 318 Hoe’s case 249, 250 Hogan v. Moore 793 Hogden v. Lloyd 269 Hoit v. Underhill 29 Holbrook v. Finney 161, 162, 277 v. Waters 888, 475 Holloway v. Conner 387 v. Lightbourne 396 Holman v. Perry 505, 506 Holmes v. Blogg _ 53, 98, 100, 101, 102, 103, 104, 105, 107, 199, 110, 115, 116, 117, 118, 119, 121, 122; 123, 125, 126, 127, 132, 167, 174, 627 v. Hill 767 v. Lansing 790 Ex parte 5412, 578 Holt v. Sambach 8 v. Ward, Clarencieux 11, 54, 118, 242 Holton v. Whitney 406 THolyland, Ex parte Homer v. Thwing 694, 695, 696 198, 195, 203, 208, 211, 215, 216 Honner v. Morton 254, 255, 347, 434, 436, 441, 445, 446, 458, 454, 459, 463, 464, 467, 477 233 388 Hooks v. Smith Hooper v. Howell Hopkins v. Carey Hopper v. McWhorter 345 346, 348, 350 Hopps v. People « 719 Hord v. Hord 469 Hore v. Beecher 472 Horne v. Horne 655 Horner v. Marshall 643 Hornsby v. Lee 421, 422, 488, 484, 435, 445, 446, 459 © Horsey v. Horsey 818, 815 Ilorton v, Auchmoody 770 Hough v. Doyle 235 Houser v. Reynolds 159 Houston ¢. Cooper 220 v. Turk 226 Hovey v. Chase 588 v. Hobson 558, 570, 588, 627 Howard v. Bryant 388, 417, 472 v. Damiani 427 TABLE OF Howard v. Digby 617, 620, 625 Howe v. Wildes 812 Howell v. George 808 v. Howell 460, 461 Howell’s case 897 Howman v. Corie 406, 417 Hoyle v. Stowe 77, 78, 79, 155, 158, 159 Hoyt v. Chapin 45 v. Hilton 234 v. Underhill 175, 176, 177 v. White 855 Hoxie v. Lincoln 109, 111 Hubbard v. Cummings 29, 82, 99, 124, 165, 167, 168, 169, 178, 277 Huber v. Huber 290 Huchting v. Engel 206 Huggins v. People 794 Hughes v. Hughes 515 v. Peters 313 v. Watson 100, 156 Hughs, Ex parte 345 Hume v. Burton 616 Humpbhreston’s case 6, 14 Humphrey v. Buller \ 365 v. Douglass 207 Hungerford’s (Mrs.) case 284 Hunt v. Burn 487 v, Johnson 286 v. Massey 25, 53 v. Peake 54 v. Southern R. R. Co. 233 Hunter v. Rice 3887 Huntley v. Griffith 865, 406 Huntly v. Huntly 286 Huscombe v. Standing 765, 791, 792, 794 Hussey v. Jewett 62, 90 v. Rountree 64 Hutchings v. Smith 464 Hutchinson v. Sandt 598, 596, 701 v. Tindall 746 Huth v. Carondelet, &e., Dock Co. 100 Hyde v. Stone 845, 346 v. Van Vulleonbune 244 Hymen v. Cain 71 I Imhoff v. Witmer 588 Incledon v. Northcote 476 Ingersoll v. Ingersoll 235 v. Roe 794 Truledier v Douglas 54 Ingraham v. Baldwin 570, 598, 594 v. Gilbert 337 Inman v. Inman 155 Treland v. Webber 3845, 407 Irvine v. Irvine 82, 68, 99, 157 Irvinson v. Van Riper 23 Irwin v. Morell 226 Isaacs v. Boyd 238, 234 Isley’s case 4 17 Ives v. Medcalfe 425, 446 CASES CITED. XXxi J. Jack v. Davis 233 Jackson v. Bodle 225 v. Burchin 90, 91, 92, 99, 100, 134, 136, 147, 149 307, 481 29, 99, 100, 101, 136, 139, 147, 149 315 v. Cairns v. Carpenter UV. Cary uv. Cray 312 v.Gumaer 570, 573, 588, 593, 598 v. Holloway 484 v. Johnson 487 v. King 556, 557, 716 v. Mayo 90, 176, 177, 178 v. McConnell 492, a v. Phipps v. Schoonmaker 185 v. Stevens 280, 307, 491, we 495 v. Todd 89 v. Vanderheyden 3802, 7 318, 314, 315 v. Vandusen 696, 716, 720 Jacobs v. Jacobs 455 v. Richards 716, 719 Jacques v. The Public Adm’r 609 v. Short ‘481 v. Withy 790 Jaffrey v. Freebain 239 James v. Jenkins 9 v. Roberts 772 Jameson v. Moseley 236, 237 Jarman v. Lucas 233° Jefford’s Adm’r v. Ringgold 53, 90, oa Jeffrie v. Robideaux Jenkins v. Freyer 30 v. Jenkins 101, 609 v. Whitehouse 512 In re 407 Jenners v. Howard 592, 738 Jennings v. Brown 882 v. Rundall 121, 189, 190, 192, 195, 207, 208, 211, 213, 214, 215, 216 Jenny v. Alden 49 Jewell v. Parr 64 Jewson v. Moulson 366, 476 Johns v. Rowe 502, 509, 510 Johnson v. Brady 416 v. Fleetwood 475 v. Hart 491 v. Johnson 886, 387, 406 v. Kincade 609 v. Lines 62, 65 v. Lusk 391 v. McCabe’ 235 v. Medlicott 542, 732, 735, 742, 748, 746 v. Miller 315 v. Pie 140, 186, 187, 189, 190, 192, 194, 203, 208, at 248 v Rockwell 2, 738 v. Spaight 387 XXxXil Johnson v. Tutewiler 313 v. Wren 346, 849, 411, 415 Johnston v. Furnier 159 v. Johnston 279 Jones v. Adair 236 v. Ashburnham 778 v. Brewer 80 v. Bridge 787 v. Brown 513 v. Colvin 63 v. Crosthwaite 590 v. Darch 53 v. Jones 286, 297 v. Kearney 316 v. Obenchain 292 v. Patterson 481 v. Perkins 746 v. Phenix Bank 54, 169 v. Rogers 771 v. Turner 788, 794 v. Warren 889, 391 Jordan v. Coffield 61, 64, 74 v. Foley 521 v. Jordan 845, 406 Judge of Probate v. Chamberlain 521 Judkins v. Walker 109, 122 Junction R.R. Co. v. Harris 481 K. Kane Co. v. Herrington Kavanagh v. Saunders Kavanaugh v. Brown Kay v. Smith 177 Keane v. Boycott 24, 27, 82, 38, 44, 77, 89, 182, 183, 160, 161, 168 165, 226, 315 770 313 Kee v. Vasser 292 Keen v. Coleman 219 Keene v. Keene 616 Keeran v. Clowser 233 Keegan v. Cox 45, 168 Kelly v. Campbell 286 Kelsey’s case 53 Kemp v. Cook 234, 235 Kendall v. Lawrence 32 v. May 635 Kennedy v. Doyle 55 v. Male 821 Kennerly v. Martin 832 Kenney v. Udall 467 Kernott v. Norman 526 Kerr v. Bell 125 Kesler v. Penninger 233 Ketchum v. Walsworth 492 Ketsey’s case 100 Key v. Davis 570, 588 Kilbee v. Myrick 588 Kilcrease v. Shelby 80 Kilgore v. Jordan 125, 206 Killian v. Badgett 558 Kimball v. Cunningham 163 King v. Green 255 v. Hamilton 697 v. Mosely 813 TABLE OF CASES CITED. King v. Southerton 772 Kinciam v. Lee 481, 482 Kingsdon v. Bridges : 295 Kinnaman v. Pyle 79, 286, 309 Kinne v. Kinne 655, 675 ‘vy, Johnson 655 Kinnersley v. Mussen 35 Kintzinger’s estate 416 Kirby v. Cannon 248 Kirton v. Elliott, 127 Kitchen v. Lee 122, 124 Kittridge v. Locks & Canals 486 Kline v. Beebe 82, 33, 99, 100, 101, ae v. L’Amoureux 62, 63 Klohs v. poe be Knapp v. Cros is v. Hyde . 771 Knibbs v. Hall 775, 778, 779, 780 Knight v. Brawner 388 v. Leak 459, 461 v. Stone 54 Knowles v. McCamley 309 Knox »v. Flack 28, 35, 235 uv. Reisell 579 Koonce v. Wallace 610 Kraker v. Byrom * 68 Kriel v. Commonwealth 719 Krom v. Schoonmaker 643 Krumbaar v. Burt 447 Krupp v. Scholl 355 Kuckenbeiser v. Beckert 238 Kurtz v. Saylor 611 L. Lackman v. Wood 226 Lafayette, &c., R. R. Co. v. Pattison 775, 786 Laing v. Cunningham 855 Lambert v. Bessey 642 L’Amoureux v. Crosby 588 Lampet’s case 258, 428, 454 Lancaster Co. Bank v. Moore 626, 627, 635, 642 v. Stauffer 485 Landers v. Douglas 316 Lane v. Cooper 6 Lang v. Whidden 526, 577, 582, 583, 691, 611 Langford v. Fry 38 Langham v. Nanny 868, 387 Lansing v. Fleet 790, 792 La Rue v. Gilkyson 694, 635 Lasseter v. Turner 390 Lassiter v. Dawson 462 v. Harper 316 Lathrop v. Furguson, 182 Latourette v. Williams 292, 387, 400, 406, 471 Law v. Hempstead 470 v. Long 82, 125, 156 v. Williamson 675 TABLE OF CASES CITED. ili Lawrence’s Lessee v. McArter 45, 578, 599 88, 58, 165, 178, 174, 176, 177 Lawson v. Lovejoy Leal v. Wigram 791 Leakey v. Maupin 888 Leckey v. Cunningham 740 Lee v. Jenkins 233 v. Johnson 468 v. Lee «+ 716 v. Muggeridge 320, 321, 331, 382, 338, 886, 337, 338, 839, 340, 341, 419 v. Porter 223 v. Ware 738 Leeds v. Vail 814 Leeds, &c., R’wy v. Fearnley 102, 174 Legate v. Clark 578 Legg v. Legg 845, 371, 386, 417, 469 Lehr v. Beaver 297 Legitimation, &c., case of 605 Leitensdorfer v. Hempstead 155 Lemon v. Hansbarger 234 v. Jenkins 558 Leonard v. Leonard 596 Lester v. Frazer 83 . »v. Pittsford 636 Lester’s case 276 Levering v. Heighe ' 383, 90 Levy v. Baker 622 Lewis v. Bannister 788, 798 v. Littlefield 207, 208, 214 v. Price 387 Lightbourne v. Holyday 896 Ligonier, Town of v. Ackerman 786 Like v. Beresford 866, 446, 476 Lilly v. Waggoner 596, 599, 715 Lincoln v. Buckmaster 626, 627 Lindner v. Sahler 316 Lindon v. Hooper 778, 779, 780 Lindus v. Bradwell 314 Lipscomb ». Littlepage 146 Little v. Duncan 25, 58, 101, 161 Littlefield v. Brown 789 v. Shee 821, 331, 886, 339, 840, 341 Livermore v. Herschell 218 Liverpool Adelphi Loan Assoc’n v. Fairhurst 203, 219, 335 Liverpool Marine Credit Co. v. Hunter 786 Livingston v. Livingston 280, 292, 297, 355, 408 Lloyd v. Gregory . 8,15 v. Lee 829, 880, 331, 333, ey 38 68, 109, 125 407 Lodge v. Hamilton 879, 390, 891 Loeffner v. State 719 London, &c., R’wy Co. v. McMichael 174 Locke v. Smith Lockhart v. Cameron Long v. Long 394, 626 v. Mulford 287, 238 Longchamp v. Fish 725 Longridge v. Dorville 779 XXXL Loomis v. Newhall 332 v. Ruck 77 v. Spencer 682 Lovett v. Robinson 840 Lowe v. Griffith 68 v. Sinklear 109, 111 Lowell v. Daniels 226, 815 Lowry v. Bourdieu 623 v. Drake 125 Loyd v. Lee 829, 380, 381, 888, 840, 841 v. Malone 237 Lozear v. Shields 558 Lubbock v. Potts 623 Lucas v. Lucas 284, 292 Lucy v. Moor 257 Ludwick v. Commonwealth 740 v. Fair 234 Lufkin v. Mayall 109 Lupart v. Hoblyn 253 Lush, In re 316 Lux v. Hoff 491 Lyman »v. Cessford 316 Lynde v. Budd 124, 165 Lyne v. Bank of Ky. 408 v. Willis 237 Lynn v. Bradley 464, 465, 469 Lyon v. Metcalf : 313 M. Maas v. Sheffield 511, 512 Macauley v. Phillips 387, 451, 458, 476 Macfarland’s Trial 719 Machem v. Machem 888, 407 Mackerell v. Bachelor 59, 68, 74 Mackey v. Grey 238 Maddon v. White 99 Maddox v. Miller 59, 64 v. Simmons 558 Magee v. Toland 346 v. Welsh 69, 98 Maher v. Martin 818, 333 Mahoney v. Bland 345 Mair v. Kerr 237 Maisonnaire v. Keating 772 Mallack v. Galton Manby v. Scott 230, 287, 238 58, 187, 189, 190, 192, 194, 618, 635 Manion »v. Titsworth 471 Mann v. Lewis 773 v. MeVey 778 Mannin v. Ball 556, 572 Manning v. Johnson 126, 218 Mansfield v. Watson 788, 789, 744, 746 Mansfield’s case 618 Mantel v. Gibbs 787 Maple v. Kussart 491 Maples v. Wightman Maraman v. Maraman Marchington v. Vernon Mardree v. Mardree Mariner v. Saunders Marlborough v. Godolphin Marlow v. Pitfield 26 286, 297, 298 286 388, 416, 457, 461 491 268, 278 69, 178 XXXIV Marsh v. Loader 220 v. Tyrrell 656 Marshall v. Fisk 562 v. Gibbings 464 v. Wing 207, 238 Marston v. Allen 736 v. Carter 888, 475, 509 v. Norton 505, 507 Martin v. Byron: 176 vo. Dwelly 484 v. Martin 845, 429 v. Mayo 89, 40, 90, 176, 178 v. Mitchell 808, 806 v. Poague 345, 406 Goods of, 507 Martyn v. Hind 286 Marvin v. Inglis 588 Mason v. Dennison 81, 235, 243 v. McNeil 846, 350, 851, 887, 888 v. Wright 68 Massie v. Sebastian 815 Masterton v. Wiswould 235 Matheney v. Guess 421, 464, 471 Mather v. Clark 225 Mathews v. Cowan 213 Matteux v. St. Aubin 35 Matthews v. Baxter 738 v. Puffer 313 Matthewson v. Johnson 98 Mattocks v. Stearns 485 Mawson v. Blane 179 Mayer v. McLure 29, 177 Mayfield v. Clifton 346, 349, 387, ’891, 407 Mayor v. Norman 234 Mazarine’s case 276 McBryde v. Choate 457 McCarty v. Carter 165 v. Murray 68, 55, 89 v. Teller 82 McCauley v. Philips 887, 451, 458, 476 v. Rodes 888 McClay v. ortis 236, 238 McClintick v. Cummins 788 McClintock v. Curd ae McClure v. Douthill 815 McCoon v. Smith 207, 220, 225, 226, 315 McCormic v. Leggett 97, 159, 182 McCorry v. King 486 McCosker v. Golden 619 McCoy v. Huffman 102, 108, 104, 105, 106, 122, 127 McCrillis v. Bartlett 6386, 740 v. How 62 McCubbin ve. Patterson 855 McDaniel v. Carver 816 v. Cornwell 814 v. Nicholson 238 v. Whitman 847, 861 McDermott v. French 491, 494 McElroy v. Mancius 791 ve. McElroy 662 McGan ». Marshall 88, 155 McGiffin v. Stout 283 Mcllvoy v. Alsop 235 TABLE OF CASES CITED. McKanna v. Merry 68, 64, 68, 69 McKavlin v. en 855, a McKee v. Ingalls v. Prout 568, 569 McKennan v. Phillips 292 McKnight v. Hogg 157 McKyring v. Bull 380 McLean v. Longlands 286, 855 McLemore v. Pinkston 855 MeMinn v. Richmond e 53 McMullen v. McMullen 279 McNaughton’s case 677 McNees v. Thompson 588 McNeilage v. Holloway 400 McPherson v. Rees 832 McQuie v. Peay 314 Meadows v. Smith 767 Mealis v. Mealis 894 Medbury v. Watrous 54, 111, 122, 123 Meek v. Atkinson 766, 767 Megrath v. Robertson 856 Mellus v. Snowman 486, 487 Melvin v. Proprietors of Locks & Canals 481, 486 Menkins v. Lightner 516 Meramon v. Caldwell 486 Mercer v. Watson - 238 Merchants’ Fire Ins. Co. v. Grant 178 Meredith v. Crawford 109 v. Sanders 235 Merriam v. Cunningham 26, 64, 69, 204, 219 v. Harsen 280 v. Wilkins 29, 172, 177 Methodist E. Church v. Jacques 272, 274 Mews v. Mews 286, 355 Meyer v. Haworth 820, 333, 336, 341 Michelmore v. Mudge 464 Michell v. Hughes 479 Middleborough v. Rochester 588, 609 Middlebury College v. Chandler 74 Middleton v. Hoge 126, 158, 178, 178 Midland, &ce., R. Co. v. Quin 174 Milbourn v. Ewart 254, 255 Miles v. Boyden 233, 234 v. Lingerman Millard v. Hewlett Miller ce. Blackburn 126, 128, 154 315 29, 58, 106, 128 347, 851, 401, 402, 404, 405, 408 v. Craig 558 v. Finley 739 v. Hull 836 v. Miller 890, 787 v,-Mostyn 786 v. Shackleford 486 v. Sims 170 Miller’s estate 451 Millison v. Nicholson 572 Mills v. Dennis 45, 102, 142, 235, 236, 288 v. Graham 127, 190, 207, 212, 216 v. Wyman 332, 333 Hiifitens v. Bush 275 v. Ger 699 Minock v. Shortridge 81, 58, 165, 168, 170, 178, 182 TABLE OF CASES CITED. Mitchel v. Mitchel 255 Mitchell ». Kingman 561, 562, 565, 571, 583, 587, 588, 591, 595, 611, 613 Ex parte 543 Mitford v. Mitford 866, 871, 421, 427, 434, 485, 447, 452, 471, 472 Mobley, Ex parte 346 Modlin v. N. W. Turnpike Co. 787 Moehring v. Mitchell 887 Mohney v. Evans 64, 69 Molton v. Camroux 526, 594, 595, 626, 627, 682 Mondey v. Mondey 230 Monkman v. Shepherdson 832 Montal v. Woolington 788 Montgomery v. Tate 481, 482 Monro’s ( Dr.) case 667 Monumental Build. Ass’n v. Her- man 83 Moody v. Matthews 508 Moore v. Eastman 207, 208, 214 uv. McEwen 235 v. Moore 225, 226, 655 v. Paine 725 v. Richardson 481 v. Vinton 482 Morck v. Abel 623 More v. Ellis 284 v. Freeman 276, 290, 292 Moreau v. Brunson 313 Morgan v. Andrut (or Andriot) 313 v. Bolles 855 v. Morgan 100 v. Palmer 786 v. Thames Bank 292, 345, 386 v. Thorne 234 In re 554 Morley v. Wright 485 Morrill v. Aden 121, 124, 208, 214 Morris v. Clay 526 v. Griffith 474 v. Harris 815 v. Stephenson 803 v. Stewart 101 Morrison v. Lennard 726 v. Wilson 815 Morrison’s case 604 Morrow v. Whitesides 346 Morse v. Thompson 507 v. Wheeler 177 Mortara v. Hall 62 Mortimer v. Orchard 744 Moseby v. Partee 813 Moses v. Stevens 106, 108; 109, 110, 122, 157 Moss v. Ashbrook 351 v, Brander 613" Motley ». Head 588 v. Sawyer 279 Mountain r. Bennett 656 v. Fisher 110 Mountholly v. Andover 609 Moyse v. Gyles 283 Mumford v. Murray 468 Munger v. Hess 214 XXXV Munson v. Washband 70 Murley v. Sherran 621 Murphy v. Bright 316 v. Paynter 798 Murray v. Emmons 818 v. Shanklin 158, 159 Murrell v. The State 89 Mustard v. Wohlford 34, 52, 118, 119, 126, 127, 128, 155, 156, 182 Myatt v. Walker 716 Myers v. Sanders 1650 N. Nanny v. Martin 868, 451, 458 Napier v. Effingham 236, 237 Nash v. Hunt 718 v.Nash 871, 877, 887, 389, 400, 406 v. Russell 882, 887 Nealley v. Greenough 767 Needham’s case 248, 455 Needles v. Needles 3815, 346, 890, 417, 448, 464, 471, 472 v. Winchester 618 Neilson v. McDonald 778, 787 Nelson v. Eaton 90 v. Harwood 813 v. Lee 160 v. Suddorth 787 Ex parte 243 Neufville v. Thompson 292 Newbiggin v. Pillans 314 Newburn v. Goodwin 659 Newburyport Bank v. Stone 508 Newell v. Fisher 738 N. H. M. F. Ins. Co. v. Noyes 70, 98, 176, 177 Newland v. Gentry 237 Newman v. Newman 848 Newport v. Godfrey 246 Newsome v. Bowyer 507 Nicholson v. Helmsley 818, 315 v. Wilborn 68, 64, 235 Nichols v. Burns 716 v. Michael 334 v. O'Neil 481, 482 Niell v. Morley 595, 611, 619, 623, 625, 627, 703 Nightingale v. Earl Ferrars 112 v. Withington _—_58, 89, 584 Noel v. Karper 558 Nolen’s appeal 845, 407 Norcross v. Rodgers 856 Norcum v. Gatty 101, 156 Norris v. Vance 175, 219 v. Wait 168, 214, 226 No. Western Railway v. McMichael 102, 146 Northam v. Kellogg 468 Nunnally v. White 313 Nutt v. Verney ' 626 XXxvi oO. Oates v. Hudson 786 O’Daily v. Morris 313 Ogden v. Haven 184 Oglander v. Baston 868, 387, 451 Ognell’s case 508, 510 Olivari v. Menger 772, 789 Oliver v. Houdlett 48, 89, 183, 1, 596, 599 v. McClellan 207, 209 v. Woodroffe Ordinary v. Geiger Orvis v. Kimball 53, 176, 177 Osborn v. Robbins 766, 788 Osgood v. Breed 501, 508, 505, 507, 508, 35, 54, 62, 283 345, 849, 350 510, 512, 518 v. Strode 2738 Osmond v. Fitzroy 542, 557, 558 Oswald v. Broderick 205 Ottman v. Moak 124, 165 Outcalt v. Van Winkle 172 Outread v. Round 803 Overbach v. Heermance 81 Overton v. Banister 55, 126 Owen v. Davies 698, 700, 703 P. Packer v. Windham 477 Page v. Trufant 770 Paige v. Sessions 851, 416 Palmer v. Hatch 790 v. Miller 82, 155 v. Parkhurst 616, 620 v, Trevor 384 Paramour v. Yardley 160 Parish v. Stone 62 Parker v. Carter 332 v. Elder 55 ; v. Parker 610 Parkinson, Matter of 578 Parks v. Cushman 888, 475 s v. White 272 v. Willard 815 Parrell v. McKinley 147 Parsons v. Hill 90 v. Parsons 889, 509 Passmore v. More 236 Patchin v. Cromach 53 Patterson v. Fraser 316 Patton v. Stewart oe Payne v. Dudley Peacock v. Monk 268, 264, 267, 268, 508. 610 v. Pembroke 475 Peak v. Pricer 235 v. Shasted 233, 234, 235 Pearl v. McDowell 626, 688, 592, 598, 635 Peaslee v. Robbins 574, 586 Peck v. Brown ; 297 v. Cary 758, 759 Peigne v. Sutclife 208, 209, 212 TABLE OF CASES CITED. Pellitrean v. Jackson 438 Penn v. Heisey 159 Penne v. Peacock 304 Penrose v. Curren 127, 208, 209 People v. Coffman 719 v. Francis 716 ev. Garbutt 719 v. Kendall 214, 220 v. McCann 719 v. McDonell 719 v. Moore 83 v. Myers 719 v. Robinson 719 Perkins v. Cottrell 482 Perrin v. Wilson 62, 63 Perry v. Calhoun 813 Person v. Chase 55, 90 v. Warren 588, 626 Persons v. Persons 355 Peters v. Fleming 51, 63, 64, 65, 67, 68, 72, 74, 83 Peterson v. Laik 101, 155 v. Mulford 852, 355 Pettes v. Bingham 557, 720 Pettijohn v. Beasly 350 Petty v. Roberts 176 Phelan v. Gardner 738 Phelps v. Morrison 813 v. Phelps 279, 292, 891, 407 v. Worcester 70 v. Zuschlag 767 Philippi v. The Commonwealth 472 Phillips v. Burr 314, 315 v. Frye 408 v. Green 82, 156, 158, 165 Philleskirk v. Pluckwell 877, 898, 399 Phipps v. Anglesea 451 Pickard v. Roberts 433 Pickering v. Wendall 475 Pickett v. Everett 400 v. Sutter 788 Pickler v. The State 28, 85 Picquet v. Swan 502, 505, 512 Pierce v. Thornely 428 Piercy v. Piercy 235 Pigot v. Russell 11 Pike v. Collins 887, 391 Pilcher v. Smith 813 Pillop v. Sexton 526 Pinkard v. Smith 850, 442 Pitcher v. Laycock 82, 97, 155 v. Turin Plank Road Co. 32 Pitt v. Hunt 476, 477 v. Smith 691, 729, 731 Pittenger v. Pittenger 788, 745, 746 Pitts 7. Curtis ' 345, 346, 388 Plummer v. People 788, 794 Poindexter v. Blackburn 457, 460 Polk v. Allen 495 v. State 719 Pollok v. Kelly 493 Polyblank v. Hawkins 481, 486 Pool v. Pratt 54, 63 Poor v. Hazleton 891, 475 Pope v. Crashawe TABLE OF CASES CITED. Pope v. Le Master 236 v. Tucker 846, 406 Porter v. Bradley 313 v. Robinson 234 Portland (Duchess of) v. Progers 507 861 Pott v. Clegg Potts v. House 652, 656, 678, 675, 724, 726 Powell v. Bell 520 v. Gott 282, 238, 235 v. Hoyland 772 Premunire, case of 605 Prankard v. Prankard 77 Prat v. Taylor 384 Pratt v. Vizard 786 Prentice v. Achorn 598, 596 Prescott v. Boston 786 v. Brown 852 v. Norris 210, 214 Pressley v. McDonald 475 Preston v. Fryer 279 Price v. Berrington 584, 596, 682 v. Furman 97, 106, 110, 125, 126, 142, 157, 164, 165, 169, 170 v. Hewitt 203, 219 v. Price 495 v. Sessions 351, 416 v. Seys 257 Pridgeon v. Pridgeon 505 Priest v. Hamilton 236 Proale v. Soady 464 Probart v. Knouth 69 Probate Court v. Niles 888, 475 Proctor v. Sears 176, 178 Prout v. Wiley 99, 102, 126 Prouty v. Edgar 80, 205 Pryor v. Butler 17 v. Hill 366 Purefoy v. Rogers 491 Purdew v. Jackson 419, 422, 428, 434, 485, 441, 442, 443, 445, 446, 453, 454, 459, 467, 471 Parsley v. Harp 159 Puryear v. Puryear 390 Putnam v. Bicknell 286, 290 v. Putnam 431 Pyle v. Cravens 45, 578, 599 Q. Quigly v. Muse 345 R. Rainsford v. Rainsford 80 Rainwater v. Durham 62, 65, 69 Ralston v. Lahee 235, 237 Rambler v. Tryon 675 Randall v. Sweet 69 Randalls v. Wilson 233 Rangeley v. Spring 315 Rawdon v. Rawdon 609 Ray v. Haines 109 XXXVI Raybold v. Raybold 855 Read v. Boshears 176, 177 v. Legard Reade v. Livingston 78 Reakert v. Sanford 314 Reavis v. Fielden 285 Reddick v. State Bank 235 Redington v. Farrar 239 Reed v. Batchelder 25, 58 v. Blaisdell 891 v. Harper 643 Rees v. Waters 356 Reese v. Keith 417 Regina v. Lord 383 ov. Oxford 618 v. Stewart 72 Regla v. Martin 238 Reinskopf v. Rogge 738, 789 Resor v. Resor 416 Revel v. Revel 390, 457 Revely v. Skinner 235 Rex v. Bettesworth 505, 511 v. Dyson 726 v. Lister 276 v. Mead 276 v. Pritchard 726 Reynolds v. Dechaums 738 v. Root 655 v. Reynolds 724 Rice v. Peet 625, 591, 592, 611, 731 Rich v. Beaumont 262 v. Cockell 276, 506, 512 v. Sydenham 745 Richards v. Chambers 451 v. Richards 871, 877, 389, 400 v. Vanderpoel 767, 771 Richardson v. Boright 101, 124, 165, Nhs v. Daggett v. Trhean ae v. Seize 510 v. Strong 584, 635 Richmond ». Tayleur 237 Richwine v. Heim 458, 465, 472 Ridgeley v. Crandall 33 Ridgman v. Dawson 578 Ridgway v. Darwin 542 Riley v. Mallory Ripley v. Woods Rippon v. Dawding 268, 270, at nue 63, "88, 64 34 97, 138, 125, 126 428 Rivers v. Gregg Roach v. Quick v. Williams ‘ 90 Robbins v. Cutter 55 v. Eaton 123, 124, 165, 176, ae v. Mount Roberts v. Anderson a" v. Roberts 476 v. Wiggin 32, 89, 124, 146, Ane Robertson v. Norris 810, 314 v. Smith 2438 Robinson v. Adams 678, 720 v. Comyns 479 v. Gould 788 XXXViii TABLE OF Robinson v. Rice 346 ov. Taylor 860, 376 v. Weeks 33, 101, 102, 123, 125 v, Woelpper 475 Rogers v. Acaster 255, 448, 472 v. Benson 491, 492, 495 v. Bumpass 386, 417, 457, 460, 464 v. Grider 492, 495 v. Higgins 315 v. Hurd 29, 99 v. Moore 470 vo. Phillips 313 v. Walker 568, 578, 592, 594 Roman Cath. Orph. Asylum v. Strain 390 Rood v. Winslow 766 Roof v. Stafford 31, 34, 97, 105, 106, 127, 134, 135, 146 Roorback v. Lord 390, 892 Root v. Stevenson 207 Rose v. Bell 812 v. Bowler 384 v. Daniel 89 Ross v. Ewer 512 v. Wharton 888, 416 Rouillier v. Wernicki 814 Roupe v. Atkinson 3804 Rowe v. Hamilton 279 v. Hopwood 180 v. Kohle 813 Rowland v. Cock’s Administrator 235 Ruby v. Strother 237 Rundel v. Keeler 63, 64 Rushton’s case 726 Russell v. Brooks 356, 389 v. Lee 130 Russ v. George 254 Rutherford v. Ruff 746 Ryan v. Bull 351 Ryder v. Hulse 355, 389, 391 v. Wombwell 61, 68, 64, 65, 68 S. Saddington v. Kinsman 366, 447 Sadler v. Bean 845, 388 Sale v. Saunders 437 Sallee v. Arnold 846 Salmon v. Smith 239 Salwey v. Salwey 477 Sams v. Stockton 74 Samuel v. Marshall 596 Sand’s case 476 Sansum v. Dewar 429 Sarbuck v. Bispham 599 Sasportas v. Jennings 771, 772, 775, 787 Satter v. Williams 386 Saunders v. Dehew 153 Saunderson v. Marr 384, 39, 45, 181, 140, Sausey v. Gardner 848, 850 Savage v. Foster 224 v. King 314, 389 Savern v. Smith CASES CITED. Sawyer v. Luffkin 635. 740 easel: v. Wilkinson 507, 509 Scarborough v. Watkins 279 Scarpellini v. Atcheson ae eae 192, 194, 207, 208, 209, k v. Sti Schenk v. Strong aif, oa 485, 486 390, 400, 467 387 Schermerhorn v. Miller v. Vanderheyden 286 Schmithheimer v Fiseman 226 Schneider v. Staihr 82, 97, 482 Schnell v. Chicago 226, 315 Scholefield v. Heafield 238 School District v. Bragdon 206 Schoonmaker v. Elmendorf 875 Schuneman v. Paradise 217 Schuyler v. Hoyle 356, 374, 379, 386, 387, 888, 390, 394, 406, 447, 457, 464, 473 Schwartz v. Saunders 815, 316, 855 Scott v. Buchanan 26, 82, 34, 101, 156, 160, 174 v. Splashett 464 v. Watson 207 Scripture v. Newcomb 468 Seabrook v. Gregg 219 Seaman v. Price 331 Seamen’s Friend Society v. Hopper 673 Seamer v. Bingham 257 Seaver v. Phelps 526, 561, 574, 577, 579, 582, 583, 584, 595, 627 Secar v. Atkinson 515 Seiber v. Price 767 Selby v. Jackson 622, 625 Sellars v. Davis 280 Selph v. Howland 319 Semple ». Morrison 46 Sentance v. Poole 595, 621, 739 Sergeant v. Steinberger 492 Sergeson v. Sealey 272, 631, 633 Severance v. Kimball 767 Sexton v. Wheaton 289 Shallenberger v. Ashworth 481 Shardelow v. Naylor 510 Shartzer v. Love 313 Shaw v. Boyd 90, 169, 257 v. Coffin 209 v. Hearsey 492 v. Partridge 481 v. Thackery 745, 746 Sheffield v. Duchess of Buckingham 236, 237 Sheldon v. Harding 558 v. Newton 81 Shelly’s case 496 Shepard v. Shepard 280, 292, 355 v. Rhodes 332, 333 Shephard v. Watrous 767 Shepherd v. Hibbard ‘233 Sheppard v. Kindle 313 Shepperson v. Shepperson 280 Sheriff v. Buckner 345 Sherman »v. Elder 316, 340, 345 Sherwood v. Sanderson 543 Shields v. Powers 236, 237 Shipman v. Horton 97, 121 4 TABLE OF CASES CITED. Short v. Moore _351, 387, 388, 390, ae Shortall v. Hinckley Shropshire v. Burns 34, 90, 168, in v. Reno 657 Shuman »v. Reigart 443 Shuttlesworth v. Greaves 400 v. Noyes 880, 381, 384, a Sibley v. Casey 313 Sikes v. Johnson 207 Simmons v. McElwain 286, 590 Simms v. Barefoot 788 Simonton v. Bacon : 558 Simpers v. Sloan 313 Simpson v. Alexander 236, 237 Sims v. McClure 596, 626 v. Rickets 279, 286 Sinclair v. Sinclair 284 Siter’s case 407, 486, 448, 465, 467, 471 Skeate v. Beale 787 Skidmore v. Romaine 635 Skillman v. Skillman 852, 355 Skinner v. Maxwell 124, 157, 165 Skinner’s appeal 475 Slanning v. Style 76, 284, 291, 355 Slator v. Trimble 97 Slaughter v. Cunningham 82 Sliter v. McClanachan 345 Sliver v. Shelback 45, 102, 142, 282, 2385 Sloan ». Maxwell 652, 688, 689, 720 Slocombe v. Glubb 257 Slocum v. Hooker 84, 55, 89, 94, 243, yaaa Smart v. Taylor Smiley v. Smiley 264 Smilie’s estate 351, 4438, 465 Smith v. Allen 833 v. Atwood 464, 469, 767 v. Bean 70 v. Bradley 234, 238 v. Bromley 775 v. Carr 528, 572, 7380 v. Chandler 472, 475 v. Commonwealth 719 v. Evans 124, 126, 146, 152 v. Gibson 69 v. Hibbard 296 v. Kane 428 v. Kelley 169, 175, ue v. Low v. Mayo 29, 90, 178, 175, 176, aT, v. Oliphant 69 v. Redées 234 v. Silliman 840 v. Smith 285 v. Stafford 248, 252, 254 v. Tebbitt 677, 678, 682, 683, pe v. Vreeland 855 v. Wane 337 v. Ward 820 v . Ware 832, 833 Smithpeters v. Griffin 69 Snevely v. Reed 832 Society v. Wadhams 506, 512 Somers v. Pumphrey 558, 570, 588, 627 xXXX1X Somers v. Rogers 235 Somegset’s case 19 Somes v. Brewer 662 v. Skinner 596 Soule v. Bonney 766 Southby v. Stonehouse 505, 608 Southern Express Co. v. Duffey 788 Southerton v. Whitlock 333 Spaids v. Barrett 7187 Sparrow v. Kingman 315 Spaulding v. Crawford 767, 788 Spencer v. Carr 226 Spiers v. Higgins 732 Spier’s appeal 856 Spitty v. Bailey 506 Sprague v. Duel se Springer v. Bowdoinham 770 Squib v. Wyn 865, 477, 516, 521 Squier v. Hydliff 72, 109 St. John’s Parish v. Bronson 74 Stafford v. Roof 81, 45, 121, 174, 182 Stamper v. Barker 433 Standeford v. Devol 387, 406, 407, 418 Stanton v. Weatherwax 659 v. Willson 64 Stanwood v. Stanwood 292, 406, 407 Staples v. Wellington 558, 716 Starbird v. Moore 238, 235 Starke v. Harrison 481 Starkey v. Mill 286 Starr v. Pease 466, 469 Starrett v. Douglass 758 v. Wynn 355, 356 State v. Bartlett 719 v. Brantley 794 v. Brown 719 v. Cook 64 v. Crawford 719 v. Dimick 54, 109, 178 v. Felter 719 v. Guild - 225 v. Handy 220 v. Harris 726 v. Hundley 719 v. Johnson 719 v. Jones 673 v. Krebs 475 v. Lawrence 719 v. Learned 220 v. Marler ~ 719 _ v. Max Klinger 719 v. McCoy 719 v. Plaisted 81, 32, 101 v. Reddick 716 v. Reigart 416 v. Richmond 26 v. Robertson 464 v. Smith 719 v. Starling 719 State Bank v. McCoy 685, 738, 739 Stebbins v. Niles 766 Stedman v. Hart 6385 Steedman v. Rose 62, 63 Steel ». Allan 526 Stephenson v. State 220 xl TABLE OF CASES CITED. Stepney v. Lloyd 766 Sterling v. Adams i 207 Stern v. Freeman 159, 168, 180 Stevens v. Bagwell 509 v. Beals 814, 389 v. State . 719 v. Vancleve 675, 688, 720 v. Winship 487 Stewart v. Eden 831 v. Lispenard 658, 655, 658, pee v. Reddit 558 v. Stewart 387 Stewart’s appeal AlT Stiffe v. Everitt 428 Stiles v. West 604 Stimson v. White 855, 856, 389 St. Joseph, Supervisors of v. Coffin- bury 794 Stockett v. Holliday 291 Stockley v. Stockley 745 Stockton v. Martin 345 Stoebler v. Knerr 497 Stoit v. Ayloff 283 Stokeman v. Dawson 226 Stokes v. Brown 161 Stone v. Dennison 62, 72, 109 v. Forsaith 508, 512 v. Withipool 68 Stoolfoos v. Jenkins 215, 219 Story v. Johnson 158 v. Perry 63 Stouffer v. Latshaw 766 Stout v. Merrill 101 Stover v. Mitchell 772 Stowe v. Drinkwater 507 Stowell’s case 89 Strain v. Wright 34, 538, 55, 126, 127 Strawbridge v. Funstone 887 Strawn v. Strawn 815, 491 Strong v. Grannis 767, 794 v. Skinner 274, 275, 286, 297, 506 v. Smith 475 Stroud v. Marshall 522, 591, 683, 730 Stuart v. Baker 2, 125 Stuart, matter of 428 Stucker v. Yoder 101 Studwell v. Shafter 219 Summers v. Wilson 101 Sumner v. Conant . 814 v. Ferryman 772, 774, 785, 786 Surles v. Pipkin 635 Surtell v. Brailsford 814 Sutlitf v. Forgey 495 Sutton v. Chetwynd 2738 Swain v. Fidelity Ins. Co. 233 Swan v. Horton 235 Swanson v. Swanson 346, 851, 888 Swasey v. Vanderheyden 53, 62 Sweat v. Hall 279 Swift v. Bennett 64, 69 Symes v. Green 677 Ts Taber v. Packwood 372 Taff v. Hosmer 720 Taft v. Pike 122, 126 v. Sergeant 25, 58, 170, 177 Talley v. Robinson 788 Tandy v. Masterton 220 Tanner v. Hague 790 Tapley v. Tapley 772, 785 Tappan v. Abbot 240 Tappenden v. Walsh 506, 613 Tarbuck v. Bispham 616, 622 Taul v. Campbell 492, 495 Taylor v. Cottrell 766 v. Croker 47, 53, 161, 580, 584 v. Hoode 484 v. Jaques 771 v. Kelly 655 v. Matthews 774 v. Parker 235 v. Patrick 788, 746 Temple v. Temple 759 Terry v. Buffington 718 Teynham (Lord) v. Webb 219 Thayer v. Lane 235 Theobalds v. Duffoy 426, 453 Thing v. Libby 29, 169, 175 Thomas v. Adams 235 106, 109, 110, 233 v. Dike v. Lowry 313 v. Thompson 455 Ex parte 313 Thomasson v. Boyd * 174 Thomond (Earl of) v. Earl of Suf- folk 520, 521 Thompson v. Hamilton 55 v. Lay 29, 58, 173, 175, 176, 177, 178 v. Leach (or Leech) 8, 10, 15, 182, 522, 528, 545, 570, 571, 572, 578, 580, 583, 591, 592, 593, 594, 618, 618, 623, 730, 731 v. Lockwood 766, 788, 794 v. Lyon 81 v. Mills 286 v. Simpson 226 v. Smart 545 v. Thompson 659 v. Warren 818, 833 Thorndell v. Morrison 313 Thornton v. Appleton 526, 716 v. Illingworth 29, 80, 172, 177 Thorpe v. Eyre 387 Thrall v. Wright 63, 70 Thrasher v. Ingram 351, 448 v. Tuttle 356 Thrupp v. Fielder 29, 172, 178, 176, 177, . : 178 Thurlow v. Gilmore 178 Thurman v. Burt 787 Thurston v. McKown 47 Tibbetts v. Gerrish 176, 177 Tibbs v. Allen 285 TABLE OF CASES CITED. Tilley v. Damon 766 v. Pierce 608 Tillman v. Lansing 790, 791 Tilson v. Thompson 485, 487 Timbers v. Katz 405, 407 Timmons v. Timmons 223 Tipton v. Tipton 54 Todd v. Todd 855 v. Zachary 492 Toler v. Slater 810, 884 Tolson v. Garner 626, 558 Tong v. Marvin 125 Took v. Glasscock 481 Tooker v. Beaufort 774 Topping v. Sadler 492, 497 Torrey v. Torrey 492, 497 Totten v. McManus 404, 405 Towell v. Pence 34, 125 Towne v. Wiley 204, 207, 208, 209, 211, 212, 216 Townsend v. Cox 34, 234 v. Townsend 297 v. Windam 77 Townshend v. Townshend 673 Tozer v. Saturlee 588 Tracy v. Keith 313 Train v. Gridley 23 Trapnall v. State Bank 234, 235 Trask v. Patterson 481, 452 Trelawny v. Winchester 774 Trish v. Newell 655, 716, 720 Tritt v. Colwell 400, 465, 471 True v. Ranney 577, 582, 583 Trueblood v. Trueblood 28, 34 Trueman v. Fenton 828 v. Hurst 54 Tryon v. Sutton 814 Tucker v. Cocke 312 v. Inman 507 v. Moreland 24, 29, 31, 32, 33, 44, 77, 79, 80, 100, 105, 147, 148, 149, 155, 158, 160, 176, 208, 232, 285 Tudor v. Samine 476, 477 Tupper v. Codwell 64, 70 Turberville v. Whitehouse 68, 70 Turing, Ex parte 604, 609 Turner v. Cheesman 720 v. Myers 506, 602, 609, 610, oe 619 v. Patridge 831 v, Trisby 70, 71 Turner’s case 476, 477 Turpin v. Thompson 813 Turton v. Turton 406 Tuttle v. Cooper 240 v. Fowler 417, 437, 443, 465, 471, 472, 497 v. Garrett 235 Tyree v. Williams 274 U. Udall ». Kenney 447, 467 Underhill v. Devereux 479 ‘xh Unity Joint Stock Assoc. v. King 226 Urban v. Grimes 100 U.S. v. 794 v. Anderson 81 v. Bainbridge 88, 77, 81 v. Blackenay 81 o. Gordon 794 v. Huckabee 772, 178, 785 v. Lipscomb 81 v. McGlue 719 v. Morgan 794 v. Tingey 794 Ustick, Will of 659 Vv. Vanaukin, In re 558 Vance v. McLaughlin 475 v. Wells 818, 382 Van Alst v. Hunter 686, 689 Van Bramer v. Cooper 89, 235 Van der Hoven »v. Nette 772, 789 Van Deusen v. Brower 23 v. Sweet 573 Van Epps v. Van Deusen 428, 472 Van Guysling v. Van Kuren 655 Van Metre v. Wolf 316 Van Nostrand v. Wright 82 Van Pelt v. Corwine 109 Van Wert v. Benedict 274 Van Winckle v. Ketcham 151, 220 v. Schoonmaker 611 Vanderveer v. Alston 388 Vansteenburg v. Hoffman 313 Varnum v. Abbot 492 Vasse v. Smith 198, 208, 209, 211, ae Vaughan v. Parr 34, 90 v. Vanderstegen 316 Vent v. Osgood 388, 54, 77, 106, 107, 109, 121, 122, 157 Vernon, Ex parte Vigers v. Aldrich Viser v. Bertrand 832, 333 Vogel v. Vogel 255 Voorhees v. Wait 122 Voorhies v. Voorhies 99, 156 Vreeland v. Vreeland 407 W. Wade v. Colvert 738 v. Grimes 888 Wadhaina v. Amer. Home Miss. Soc. 274 v. Gay 238 Wadleigh v. Glines 313 Wadsworth v. Sharpsteen 588 v. Sherman 588 Wagner v. Ellis 611 v. Ewing 316 v. People 719 Estate of 509 Wailing v. Toll 63 xii Wait v. Maxwell 561, 569, 588, 593, 598 Walden v. Chambers 888, 416 Wales v. Coffin 492, 494 Walker v. Davis 127, 207 v. Ellis 65, 157 v. Fenner 846, 443 v. Ferrin 122 v. Page 238 v. Simpson 69 v. Walker 846, 888, 400, 416 Wall v. Tomlinson 368, 869, 415, 450 Wallace (Tace), Will of 651, 689 v. Burden 346 v. Lewis 82, 101, 156 v. Morss 127, 207, 217, 835 v. Rippon 318, 314 v. Taliaferro 350, 879, 390, 410, 411, 416 Waller v. Cralle 772, 787 v. Parker 771, 772, 785, 787 Wallingford v. Hearl 485 Wallingsford v. Allen 289 Wallis v. Hodson 373 Walsh v. Powers 165, 169 v. Walsh 235, 238 v. Young 90, 126 Walter v. Hodge 292, 355 v. People 719 v. Saunders 476, 477 Wamsley v. Lindenberger 58, 243, 244 Wanktord v. Wankford 455 Waples v. Hastings 28, 85 Ward v. Baugh 894 v. Crotty 292 v. Dulane: . 609, 610 v. Steamboat Little Red 45, 89 Wardlaw v. Gray 346 Ware v. Cartledge 58 Waring v. Waring 555, 674, 675, 678, 682, 688, 684, 691 Warre v. Miller 544 Warren v. Dickerson 316 v. Whitney 332 Warwick v. Cooper 54 Washburn v. Hale 845, 406 Waterman v. Barratt 767 v. Hall 214 Waters v. Bean 333 Watkins v. Abraham 316 v. Baird 767, 770, 771 v. Halstead 382, 383, 336, 339, 340, 341 v. Stevens 29 Watrous v. Chalker 279 Watson v. Cross 65, 69, 74 v. Dennis 429 v. Dunlap 333 v. Hensell 63 Wayne v. Sands 788 Weatherspoon v. Woods 771 Weaver v. Jones 34, 52, 110 v. Ward 642 Webb’s appeal 436, 448, 466, 471 Webster v. Woodford 522, 523, 688, 591, 592, 611, 781 TABLE OF CASES CITED. Weed v. Beebe 122, 124, 146, ite v. Mut. Ben. Life Ins. Co. 71 Weeks v. Laighton 106, 109, 122, 146 v. Weeks 886, 457, 460, 464 Weems v. Weems 471 Weir v. Fitzgerald 724, 726 Weiser v. Boys 345 Weisinger v. Murphy 481 Welch v. Welch 55, 387 Wells v. Barnett 772 v. Prince 485, 487 v. Smith 235 v. Tyler 886, 888, 389 v. Wells 8, 285 Wenman v. Mason 476 Wennall v. Adney 319, 321, 322, 336, 338, 33 9, 342, 343 Wentworth v. McDuffie 208, 211, 212 v. Tubb 594, 635 West v. Gregg 69, 70 v. Moore 203, 204, 205, 214 v. Penny 33, 161 v. West 274, 275, 505, 506 Westervelt v. Gregg 388 Weston v. Stuart 887 Weyland’s case 276 Wharton v. Mackenzie 61, 62, 65, 67, 68 Wheaton v. East 26, 27, 32, 33, 101, 158 v. Miscal Wheeler v. Alderson 768, 7a v. Bailey 790 v. Bowen 886, 388, 475 v. Hotchkiss 469 v. Moore 3881, 388, 389, 475, 509 Wheelock v. Wheelwright 189, 190 Whitaker v. Whitaker 346, 352, 360, 365, 886, 888, 410, 509 White v. Albertson 234, 236 v. Cox 746 v. Damon 697, 700 v. Driver 697, 711 v. Hall 234 v. Heylman 787 v. St. Barbe 421, 483, 446 v. Wager 279, 286, 291 v. Wilson 694, 697 Whitechurch v. Whitechurch 237 Whitefield v. Longfellow 785 Whiteside v. Oakman 474 Whitesides v. Dorris 470 Whitmarsh «. Hall 64, 111, 122, 128, 157 Whiting rv. Earle 49 Whitney v. Dutch 29, 34, 35, 37, 45, 48, 79, 188, 186, 178, 177, 178, 578 v. Stevens 236 Whitten v. Whitten 291 Whittingham ». Hill 68 Whittingham’s case 6, 7, 15, 21, 44, 88, 588 Whittington v. Doe 226 Whittlesey v. Fuller 492 v. McMahon 292 Whitworth v. Carter 313 Whyhall v. Champion 68, 117 Wiche’s case 476 Wieman v. Anderson Wier rv. Buford Wiggins v. Blount Wigglesworth v. Steers Wight v. Shaw Wightman v. Wightman Wilcox v. Howland v. Roath Wilder v. Brooks v. Weakle y Wildman v. Wildman 368, 368, 371, 377, Wild’s case TABLE OF CASES CITED. 814 | Woodlands v. Crowcher 814 | Woodman v. Chapman 845 v. Hubbard 739, 746 v. Neal 315 | Woodward v. Darcy 588, 609 v. Newhall 772, 787 | Woodyer v. Gresham 29, 175, 176 290 626 | Word v. Vance Worrall v. Marlor xiii 426, 427, 488 835 208, 210, 211 314 251 240, 241, 248 887, 451 Worcester v. Eaton 82, 186, 156, 161, 770, 793, 794 198, 208, 209, 214 447, 476 9, 399 | Worthington v. Young 309, 310, 484, 485 601 | Wotton v. Hele 302, 309, 318 Wiley v. Ewalt 658 | Wray v. Wray 558, 716 Wilhelm v. Hardeman 72, 126 | Wright v. Arnold 816, 469 Wilkiming v. Schmale 234 v. Buller 807 Wilkinson v. Kitchen 774 v. Cadogan 258, 266, 268, 269, v. Wilkinson 236 270, 271 Williams v. Mabee 165 vu. Englefield 266 v. Moor 25, 26, 80, 54 v. Germain 101 v. Morgan 481, 482 v. Leonard 208, 316 v. Wentworth 622, 625 v. Miller ~ 287 v. Williams 257 v. Rutter 471 Williamson v. Gordon 287, 238 v. Saddler 492 v. Johnston 236 v. Snow 226 Williard v. Stone 64 v. Steele 58, 177 Willis v. Roberts 388, 389, 392 v. Wright 297 v. Twambley 53, 97, 106, 121, 161 | Wrisley v. Kenyon 238, 236 vo. Willis 701 | Wylie v. Basil 408 Wilson v. Burr 818, 382, 387 | Wythan v. Waterhouse 521 v. Fleming 492 v.. Kearse 106 v. Oldham 558 Y. v. Porter 90 v. Ray 780 | Yate v. Mosely 394 v. Townshend 894 | Yates v. Boen *500, 528, 572, 578, 582, 616, Wilt ». Welsh 208, 206, 208, 214 638, 780, 737 Winans v. Peebles 274, 279, 291 v. Lyon 46 Winchester (Bishop of) v. Beaver | 230 v. Van Renssalaer 790 Winchester’s (Marquis of) case 647,656, | Yauger v. Skinner 626, 701 682 | Yeates v. Reed 643 Winnebrinner v. Weisiger 279, 280 | Yerby v. Lynch 417 Winslow v. Anderson 220 | Young v. McKee 124, 165 Winston v. McLendon 234 v. Miller 484 Wintereast v. Smith 879, 890, 473 v. Paul 312 Winton v. Barnum 292 v. Stevens 558, 626 Witham v. Perkins 486 v. Whittaker 238, 235 Withers v. Pinchard 808 | Youse v. Norcoms 82, 101, 155 Woelper’s appeal 407, 448, 465 Wolte v. Security Fire Ins. Co. 297 Wollen v. Tanner 894 Z. Womack v. Womack 125 Wombwell v. Laver 428 | Zouch v. Parsons 21, 31, 32, 38, 34, 39, Wood v. Simmons v. Warden Woodford %. Higly 890, 443, 497 42, 44, 68, 77, 79, 80, 80, 94, 97, 116, 279, 292 130, 181, 182, 133, 134, 135, 146, 160, 492 161, 562, 572, 578, 593, 623 LEADING AND SELECT CASES ON DISABILITIES. INFANCY. HeErpert v. TuRBALL.1 (1 Keble, 589; s. c. Siderf. 162, pl. 17; Raym. T. 84. Court of King’s Bench, Nov. 9, 1663.) When an Infant arrives at Majority. — An infant becomes of lawful age on the beginning of the day next preceding the twenty-first anniversary of his birth. AN infant makes a will under the age of twenty-one years, and when of age dyeth without publication, it’s void; but per curiam, if after age he new publisheth it, it’s good. So if the publication were (as in the case at bar), on the same day that he came of age, which was the day also of his death; also, by Keeling and Hyde, and not denied, that H., born the 16th of February, 1608, is, the 15th of February (1629), twenty-one years after, of full age, and whatever hour he were born is not material, there being no fraction of days. Also by Twysden, Will made on the day that H. cometh on age, is good, which was agreed also in evidence to a jury at bar. See next case and notes. The age so generally regulated by statute, that at which persons may make testament- it is not deemed necessary to comment ary disposition of their property is now on this branch of the case. 1 The name of the defendant in the different reports of this case is variously called “Turball,” “ Torball,”’ and “ Tuckal.” 7 1 2 INFANCY. THE Strate v. CLARKE. (3 Harring. 557. Court of General Sessions and Oyer and Terminer of Dela- ware, October Term, 1840.) A person is of full age the day before the twenty-first anniversary of his birth- day. Kent, October Term, 1840. The defendant was presented by the grand jury for illegal voting at the late inspector’s election. The presentment set forth these facts, to wit: That the defend- ant was born on the 7th of October, a.D. 1819, and voted at the election held on the 6th of October, 1840, upon age. In his behalf a motion was now made to quash the presentment, on the ground that it appeared from the face of it that the defendant was of full age at the time he voted, and was, therefore, not guilty. It was proved that he stated. the facts to the judges of the election, a majority of whom decided that he had a right to vote. Mr. Clayton, for the defendant, cited 1 Black. Com. 497.... By the Court. Bayarp, Chief Justice. Many persons suppose that the expression in the constitution relative to the qualifica- tions of voters is, that citizens between the ages of twenty-one and twenty-two years shall be entitled to vote without paying tax; and on this the common but erroneous notion is, that a man must be in point of fact actually within his twenty-second year before he can vote. The premises and conclusion are both wrong. “Every free white male citizen of the age of twenty-one years, and under the age of twenty-two years, having resided as aforesaid, shall be entitled to vote without payment of any tax.” (Const. Art. 4, sec. 1.) To ascertain when a man is legally “of the age of twenty-one years,” we must have reference to the com- mon law, and those legal decisions which from time immemorial have settled this matter, in reference to all the important affairs of life. When can a person ‘make a valid will; when can he execute a deed for land ; when make any contract or do any act which a man may do, and an infant, that is, a person under the age of twenty- one years, cannot do? On this question the law is well settled; ZOUCH v. PARSONS. 3 it admits of no doubt. A person is “of the age of twenty-one years” the day before the twenty-first anniversary of his birthday. It is not necessary that he shall have entered upon his birth- day, or he would be more than twenty-one years old. He is, : therefore, of age the day before the anniversary of his birth; and, as the law takes no notice of fractions of a day, he is neces- sarily of age the whole of the day before his twenty-first birth- day; and upon any and every moment of that day may do any act which any man may lawfully do. (1 Chit. Gen. Prac. 766.) “It is to be observed that a person becomes of age on the first instant of the last day of the twenty-first year neat before the anniversary of his birth; thus, if a person were born at any hour of the 1st of January, a.p. 1801 (even a few minutes before twelve o’clock of the night of that day), he would be of full age at the first instant of the 31st of December, a.p. 1821, although nearly forty-eight hours before he had actually attained the full age of twenty-one, according to years, days, hours, and minutes; be- cause there is not in law in this respect any fraction of a day; and it is the same whether a thing is done upon one moment of the day or another.” On the face then of this presentment, it appears that Mr. Clarke was entitled to vote on the 6th of October, being on that day of the age of twenty-one years: and the presentment, show- ing no offence, must be quashed. This rule, as to when a minor be- Raym. 1094; 1 Ld. Raym. 480; 3 Wils. comes of age, is apparently as old as 274; Hamlin v. Stevenson, 4 Dana, 597; the common law. See, tothe same point, Wells v. Wells, 6 Ind. 447. See also 2 also, Anonymous, 1 Salk. 44; Fitzhugh Kent Com. 283; 1 Bl. Com. 463; God- v. Dennington, 6 Mod. 259; 2 Ld. son v. Sanctuary, 4 B. & Ad. 264. Zoucu ex dem. ABBorT and HALueErt v. Parsons. (3 Burr. 1794; s. c. 1 W. Black. 575. Court of King’s Bench, Nov. 23, 1765.) What Deeds, &c., of an Infant are binding, and what void or voidable. — Where a widow and her infant son, being joint executors and residuary legatees of the deceased mortgagee, and as such entitled to the money due on the mortgage to him, upon payment of the said indebtedness to the widow by a third per- 4 INFANCY. son who, on the faith of their conveyance to him, advanced the amount of the indebtedness, and a further sum to the mortgagor (who produced the title- deeds and joined in the conveyance by way of confirming the same to the extent of the whole amount advanced), by lease and release, without livery of seisin, conveyed to said third party, such conveyance being no more than such infant was by law compellable to do, is binding ; and, even if such conveyance is voidable only, it cannot be avoided by entry during minority. The Rule in Perkins, § 12, that ‘« All such gifts, grants, or deeds, made by infants which do not take effect by delivery of his hand are void,” &c., approved. THis was a special case in ejectment; and the question was, “whether an infant’s conveyance by lease and release was abso- lutely void, or only voidable.” The cause had been twice tried. Upon the first trial an incomplete case had been drawn up and agreed upon, which having been argued on Friday, 17th June, 1763, by Mr. Sergeant Glynn, for the plaintiff, and Mr. Dunning for the defendant, Lord Mansrietp then observed, that many circumstances were. necessary to be known, besides those con- ‘tained in the case as it then stood, which was not sufficiently stated to come at the merits; and if the parties could not agree upon the facts, the cause must be tried over again and those facts ascertained. It was, therefore, adjourned at that time, in order for the necessary facts and circumstances to be more com- pletely stated; and, the parties not agreeing to them, a second trial became requisite. It was tried this second time at the Lent assizes, 1764, for Somersetshire, before Mr. Justice Yates ; when a verdict was found for the plaintiff, subject to the opinion of this Court, upon the following ‘vase : — Special case. John Bicknell, being seised in fee of the mes- suage aud lands in the declaration mentioned by indenture of lease and release, dated 24th March, 1750, and 25th March, 1751, conveyed the premises to William Cook and his heirs by way of mortgage, for securing the repayment of 280/. William Cook afterwards died, leaving John Lamb Cook, an infant, his eldest son and heir at law; and also leaving his widow, Elizabeth Cook, and the said John Lamb Cook his joint executors and residuary legatees. John Bicknell, the mortgagor, afterwards brought the title- deeds of the premises to one Mr. John Williams, an attorney, and desired him to procure the sum of 400/. upon the same security, in order to pay off the said mortgage to the Cooks, and for other purposes. ZOUCH v. PARSONS. 5 Williams applied to the Jessors of the plaintiff, who agreed to advance the same ; and by indentures of lease and release, bearing date respectively on the 29th and 30th of June, 1761, between the said John Lamb Cook (then being an infant of between sixteen and seventeen years of age) and the said Elizabeth Cook, of the first part; the said John Bicknell of the second part ; and the said Henry Abbott and Catharine Hallett (lessors of the plaintiff), of the third part; the said John Lamb Cook and Elizabeth Cook, in considera- tion of the sum of 2801. in the said release mentioned to be to them paid by the lessors of the plaintiff granted and released, and the said John Bicknell, as well for the consideration aforesaid, as for the further sum of 1207. to him mentioned to be paid by said lessors of the plaintiff, granted, ratified, and confirmed the said premises to the said Abbott and Hallett, and their heirs, to hold to them their heirs and assigns for ever. The said Mr. Williams, when he drew the last-mentioned mortgage deed, apprehended that the whole principal sum of 2807. continued due to the repre- sentatives of the said William Cook, upon his said mortgage, and therefore expressed that sum to be the consideration paid to them; but, in fact, the sum of 1002. only principal money, and 91. for interest, then remained due thereon; the said William Cook having been paid the other 1807. in his lifetime; and ac- cordingly, at the time of the execution of the said last-mentioned indentures of lease and release, Elizabeth Cook received 1091., being the principal and interest then remaining due to her son and her as representatives of her late husband, upon his mort- gage; and the residue of the sum of 400/. was received by the said John Bicknell from the lessors of the plaintiff. The said John Bicknell continued in possession of the premises from the. time of his conveyance thereof to the said William Cook, until the year'1756, when he conveyed the premises, by way of mort- gage for 200/., to one Thomas Thorne for a term of years, who, in March, 1762, assigned the said term to the defendant, Henry Parsons, in consideration of the sum of 228]. in the said deed of assignment mentioned to be the principal, interest, and costs then due from Bicknell to the said Thorne; but, before the as- signment to the defendant, Mr. Williams, then being attorney for the lessors of the plaintiff, gave the defendant notice of the mortgage made to William Cook, and of the assignment of it to the lessors of the plaintiff. On the 27th day of March, 1764, 6 INFANCY. two days before the day of holding the assizes at Taunton, the said John Lamb Cook made an entry on the premises, In order to avoid his said lease and release to the lessors of the plaintiff. The question is, “whether the lessors of the plaintiff are entitled to recover the premises.” This new case was argued on Friday, the 8th of this month, by Mr. Sergeant Glynn, for the plaintiff, in support of the infant’s lease and release ; and Mr. Dunning, for the defendant, who insisted upon their being absolutely void. Mr. Sergeant Glynn urged, that infancy is a personal privilege; and that the infant only can avail himself of his infancy ; no other person can do so. He cited Whittingham’s case, 8 Co. 43, as an authority for him; though he owned that this case is not quite conclusive, as -it is confined to feoffments. Yet it shows that privies in estate (as joint tenants), and privies in law (as lords by escheat), shall not take benefit of the infancy of another. And this doctrine, he said, applies to all other con- veyances whatsoever. If the infant does not object, it is good against all the world. He cited Co. Litt. 877, Co. Litt. 51, Bacon on Uses, 355, and he added, that the doctrine is clearly stated in Humphreston’s case, in 2 Leon. 216, 218, and Moore, 105, s. c. (there called Lane v. Cooper), the seventh point of it. It is not a null agreement, because the person of full age is bound ; the choice of standing to it, or not agreeing to it, is not reciprocal. Therefore John Lamb: Cook’s act was good at the time, and stands good; and the plaintiff has a good title to recover now. The great point to be attended to, is the benefit of the infant. In the case of an infant’s making a lease without reserving rent, it must therefore be void. But a lease made merely in order to bring an ejectment is good; for there the infant is not prejudiced. Here the infant is not, cannot be, prejudiced. The mother alone, being joint executor with him, had a right to receive the money and give a discharge for it; and, after it was received, the infant was only the trustee. Therefore, even with regard to the infant, it-is not a void act, but only voidable. Mr. Dunning, for the defendant, the second mortgagee agreed, that both the first and second mortgagee were equally entitled to favor; and that, therefore, strictness of law must prevail. This is not a case, he said, where the Court of Chancery would have compelled the 1 V. 8. c. in Bendl. 195; Owen, 64; Dyer, 8874; and 1 And. 40. ZOUCH v. PARSONS. T infant to do what he has done. The sergeant’s proposition is, “That the infant’s act is good, till dissented to by him when he comes of age.’ But I say that his dissent shall have a retro- spect; it rescinds his act and makes it void ad initio. And he may avoid it at any time, either at the instant he comes of age or earlier. It was formerly a doubt whether a dum fuit infra etatem would lie after the infant’s coming of age. He argued that this conveyance by lease and release was absolutely void. A feoffment and livery of seisin personally and actually given by the infant was the only method that could have made it only voidable. A defeasible estate is not the effect of every sort of conveyance. (And here he went into deep and ancient law concerning the different sorts of conveyances, and the different operations of them.)! He cited Bro. Abr. title “‘ Coverture and Infancy,” pl. 1, where it is said, ‘That a feoffment and livery made by an infant himself and not by attorney, is voidable, and ‘not void: nota diversitie.” 26H. VIII.2. Whittingham’s case, 8 Co., recognizes the difference between personal delivery of seisin, and a delivery of it by letter of attorney. (See p. 45a.) The ‘delivery alone is the foundation of the voidable estate; and the reasoning cannot therefore be applied to any other sort of con- veyance than a conveyance by livery. He cited a case of the daughters and co-heiresses of one J. Frevil (in 9 H. VI. fo. 6, pl. 14), and argued from it, that a feoffment by an infant, without livery of seisin actually and personally given by him, is void; though a voidable estate passes by his personal livery. And an infant’s personal livery will create a voidable estate, whatever age the infant be of. Therefore, though an infant’s actual personal livery be good till avoided, yet it is otherwise where his livery is not personal. The distinction I have taken is clear and common, and is laid down in express terms in Finch’s Law, lib. 2, p. 102 [qu. where; for it is not in p. 102.]* In 26 H. VIII. pl. 2, Fitz Herbert said, that an infant may plead, “ that he did not grant by the deed,” notwithstanding that it be sealed by him; because nothing passed. And if the infant had made livery of seisin at the door of the church, peradventure this might change the case. Asif he gives goods, and delivers them him- self, he shall not have a writ of trespass; no more than an assize, when he makes livery and seisin himself; but if he makes a letter 1 V. (ante) 92, and 710 to 716. . 2 Cro. Jac. 428. 8 INFANCY. of attorney, it is otherwise. And this difference was granted by all the court. Brooke adds, at the end of his abridgment of this case in Bro. Abr. title “ Coverture and Infancy,” pl. 1. ‘ Et sic vide que livery dun fait dun enfant nest semble al livery de terre ou biens per luy.” Yet I own that pl. 12, of the same title , seems contradictory ; and it is copied into F. N. B. title “ Dum fuit infra etatem.” (V. new edition, p. 426, in margin.) Here, indeed, the livery of the deed and the livery of the land are confounded. But the Year Book (upon looking into it) appears to be misrecited ; and such a question could not arise. In Cro. Car. 103, Sir Thomas Holt v. Sambach, the infant’s grant was agreed to be void as to the remainder. And in Thompson v. Leach, 8 Mod. 301, and Carth. 435, s. c., it was holden “that a surrender made by an idiot, or by an infant, is void ab initio, and that any person may take advantage of it.” A surrender by an infant cannot be by deed, but is absolutely void. Lloyd v. Gregory, Cro. Car. 502; 1 Ro. Abr. 728. The’ case of Thompson v. Leach is the fullest reported in 3 Mod. 301, and there an infant’s surrender was considered as absolutely void. A clear distinction was also taken between the deed itself of an infant (the form of it), and the operation of the deed, and it was determined that all deeds by infants, and all surrenders by’ infants, are void ab initio. It is only feoffments with actual personal livery that are voidable only. Bro. Abr. title ‘ Cov- erture and Infancy,” pl. 40, referring to 34 Assize, pl. 10, says ‘“*Tenetur clerement, que release denfant de tout le droit en terre de que il ne fuit unques seisie, est void, &c.: mes aliter dicitur dun feoffment. Le reason del diversitie semble per reason del livery del terre. Ceo nest que voidable; et lauter est void.” Therefore an infant’s release is void, not voidable only. Lord Coke had not considered this subject, or at least not expressed himself upon it with his usual accuracy. In 1 Inst. 51 5 and in 247 6, he does not distinguish between the different con- veyances; and he makes entry equivalent to livery. So in 2 Inst. 678, on the statute of 27 H. VIII. c. 16, concerning enrol- ments of bargains and contracts, he plainly considered the deed as absolutely void. “If an infant bargain and sell lands which are in the realty by deed indented and enrolled, he may avoid it when he will; for the deed was of no effect to raise an use,” &c. ZOUCH v. PARSONS. 9 So in 1 Inst. 45 b. (for want of considering the different forms of conveyances), he is not accurate. In the case of James, ex dimiss. Aubrey v. Jenkyns, Tr., 31 G. II. C. B., a lease by tenant for life was holden voidable only where the lease for lives was made by livery. Therefore Lord Coke must be understood of such conveyances as operate by livery. As to infant’s leases, the benefit of the infant is considered. His leases are good if a rent is reserved upon them. But this exception arises from necessity, like contracts for meat, &e. He cannot occupy his lands himself 3 therefore it is necessary to validate his leases reserving rent. But this exception extends to no other case. And it is just the same, whether the infant be six years of age or sixteen: there is no line drawn between the different ages of an infant. The legis- lature have recognized the law to have been as I say. And the act of 7 Geo. II.1 c. 19, rectifies the inconveniences in one re- spect, as to infant mortgagees. An infant’s conveyance by lease and release is absolutely void. The deeds are substantially bad; though “ non est factum” can- not be pleaded to them. This conveyance never conveyed any interest whatsoever ; and the plaintiff can neither have judgment ‘for his term, nor even for damages, by reason of the retrospect. Mr. Sergeant Glynn, in reply, premised that the court did not mean to introduce a new case upon the second trial; they only meant to take the matter up as the facts stood and appeared at the time of the first trial, when they were defectively stated to the court. This conveyance was good till the infant avoided it. As to dum fuit infra cetatem, what Mr. Dunning says is not in- consistent with what I have urged. But there is no case to support his doctrine of a retrospect, as he has laid it down. As to the citation from Bro. Abr. it does not follow “that all other acts of an infant are void.” The entry (upon an exchange) is not analogous to livery and seisin; an entry upon an exchange does not make a discontinuance. Parti- tions by infants are only voidable, not void. So leases by infants without reserving rent. The law only prevents the infant from ‘being injured. As to the grant of an infant, he may consider it as a voidable act, but it is not a nullity. And the term “void” means only (in several of the cases cited), “that the infant may avoid 1 He manifestly meant 7 Ann. c. 19. V. (post) 1803. ' 10 INFANCY. it.” As to the case of Thompson v. Leach. — The person who was to avoid the act was the heir of the person who did the act. A release of a right differs from releases which convey interests. No stranger has a right to say, “ that John Lamb Cook’s convey- ance was a void one.” ‘The act of parliament mentioned by Mr. Dunning does not recognize the law to have been as he supposes. Curia advisare vult. Lord MansFIELD, after stating the case minutely, now delivered the resolution of the court, to the following effect : — The merits of this cause turn upon two general questions: 1. Whether this conveyance is good, and binds the infant; 2. If it does not bind the infant, whether the defendant can take advan- tage of the infancy, and on that account object to it. As to the ‘first, — miserable must the condition of minors be, excluded from the society and commerce of the world, deprived of necessaries, education, employment, and many advantages, if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act. The law therefore, at the same time that protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts, for their own benefit, and, without prejudice to themselves, for the benefit of others. To mention a rule‘or two, the reasons of which are applicable to the present case: If an infant does aright act which he ought to do, which he was compellable to do, it shall bind him; as if he makes equal partition; if he pays rent; if he ad- mits a copy-holder, upon a surrender. But there is no occasion to enumerate instances ; the authorities are express, and the reason decisive. ‘Generally, whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it without suit of law.” 1! The second resolution in Conny’s case ? is, “‘ that although the infant in the case at bar was not compellable to attorn, because the manor was not conveyed by fine; yet, because by a mean, he was compellable to attorn, Scilicet, if a fine had been levied, the attornment was good.” Fortescue lays it down larger, 18 H. VI. fo.2a: ‘He did but that which he ought to do; therefore the attornment is good.” ‘* The attornment of an infant to a grant ° by deed is good, because it is a lawful act; albeit he be not, upon that grant by deed, compellable to attorn.” Co. Litt. 315 a. The reason is manifest ; a right and lawful act is not within the 1 Co. Litt. 172 a. 29 Co. 85d. ZOUCH ¥v. PARSONS, 11 reason of the privilege, which is given, to protect infants from wrong. His being compellable by any mean, or in any way to do it, proves the act to be substantially what he ought to do. In the case of Holt v. Ward, the infant’s being compellable by the ecclesiastical court, would have answered the objection made there, as much as her being compellable by the common law; therefore civilians were heard. To what end should the law per- mit a minor to avoid an act which in any way, through any mean, by any jurisdiction, he might be compelled to do over again, after it was undone ? it would be assisting him to vex and injure others without the least benefit to himself. Another rule, which may be collected from the books, is, “that the acts of an infant, which do not touch his interest, but take effect from an authority which he is trusted to exercise, are binding ;” as where an infant patron presents ; an infant executor duly receives and acquits, pays and administers the assets; an infant head of a corporation joins in corporate acts; an infant. officer does the duty of an office which he may hold. A third rule, deducible from the nature of the privilege which is given as a shield, and not as a sword, is, “that it never shall be turned into an offensive weapon of fraud or injus- tice.” As where tenant for life and infant in remainder levied a fine, the infant reversed the fine, as to himself, for the inheritance for nonage ; yet he shall be bound by his assent to the fine and joining in it, not to enter for the forfeiture ; and the fine was held good as to the estate of tenant for life, and reversed qguoad the infant only. Pigot v. Russel, 2 Leon. 108, Cro. Eliz. 124, s. c. To see whether the reasons of these rules are applicable in the present case, it is necessary to ascertain what is in truth the nature of this transaction. Part of the personal estate of William Cook consisted of 1097. due from John Bicknell, secured by a mort- gage in fee. His widow and infant son were joint executors, and residuary legatees, and, as such, entitled to this money. The fee which descended to the son was merely as a pledge for the money, besides the money the infant had no beneficial interest in the land whatsoever. Upon payment he was bound to convey as the mortgagor should direct. Conveying is no more than deliver- -ing up a security when it is satisfied. The money here was paid to the proper hand. An adult, under the same circumstances, would have been guilty of a breach of trust; if he had refused, he would have been compelled to do it, and would have been 12 INFANCY. condemned in costs for refusing. By act of parliament, 7 Ann. the infant was compellable to do it during his minority. It was much stronger here, that the money was paid by the plaintiffs, who, upon the faith of this conveyance, and the title-deeds pro- duced by Bicknell, the mortgagor, advanced more money. The whole beneficial estate belonged to Bicknell, after paying the £109. The infant’s conveyance was matter of form, and in the nature of an authority, executed by Bicknell’s direction, in favor of a third person, who ventured his money upon the faith of it. It would be iniquitous in the infant to avoid it; it would be unjust to set up the privilege to make an innocent man lose his money, circumvented by his confidence in the infant’s concurrence. But it could not even have that effect. It would be nugatory and without any effect. For if it was avoided, he must make the same conveyance over again ; he would be compelled to do it. A con- veyance to the defendant would be a breach of trust. By the case stated upon the? first trial, it did not appear that the infant’s conveyance was a right act, such as he ought and was compellable to do. The court then ordered a new trial, to get a more correct state of the case. Upon the second trial it now comes out clear, that the. infant was expressly a trustee for the plaintiffs. He was paid by them; upon the faith of the fee being in him, they advanced more money. - If the fee was.in a stranger, the plaintiffs have the prior equity. If Thorne had been prior, his letting the mortgagor have the title-deeds might be sufficient to postpone him. And the defend- ant had express notice. There can be no doubt that the infant was compellable to do what he has done. Upon the first question we are all of opinion that “ this conveyance binds the infant.” But supposing it not binding against him, or those who may stand in his place; the second question is, ‘‘ whether the defendant can take advantage of the infancy, and on that account object to the conveyance.” This depends upon two points: 1. “* Whether this conveyance be void, or voidable only. 2. If voidable only, whether the infant by his entry before the assizes had absolutely avoided it.” It is not settled what is the true ground upon which an infant’s deed is voidable only. ‘‘ Whether the solemnity of the instrument is sufficient,” or “it depends upon the sem- 1V.c. 19, § 2. 2 See the beginning of this case. ZOUCH ¥. PARSONS, 13 blance of benefit to the infant from the matter of the deed upon the face of it.” As to the first, the solemnity of the instrument, we think the law is as laid down by Perkins! that “all such gifts, grants, or deeds made by infants which do not take effect by delivery of his hand, are void; but all gifts, grants, or deeds made by infants by matter indeed or in writing, which do take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate.” The words “ which do take effect,” are an essential part of the definition, and exclude letters of attorney, or deeds which delegate a mere power and convey no interest. In Bro. Abr. title “ Dum fuit infra etatem,” pl. 1 (which cites 46 Edw. III. 84), it is noted “that a dum fuit infra etatem was admitted to lie of a rent; and yet by some the grant of an infant was void and not voidable.” But (says the book), ‘it is not so; for then this action would not lie. And, besides, the delivery of a deed cannot be void, but only voidable.” There is no difference in this respect between a feoffment, and deeds which convey an interest. The reason is the same. The delivery of the deed must be in the presence of witnesses, as much as the livery of seisin. The ceremony is as solemn. The presumption “that the witnesses would not attest, if they saw him an infant,” holds equally as to both. Littleton, who writes with great accuracy and precision, puts them both upon the same foot. He says “if before the age of twenty-one, any deed or feoffment, grant, release, confirmation, obligation or other writing be made by any of them, &c., all serve for nothing, and may be avoided.” In 2 Inst. 673, a bargain and sale enrolled by an infant is denied to be matter of record which the infant must avoid during his minority ; but the book says, ‘he may avoid it when he will.” ‘An infant, or they who stand in his place, cannot plead non est factum,” and give the infancy in evidence; but they must plead the infancy specially, to avoid the deed ;? and that plea avoids it by relation back to the delivery. The reason of this is because it has an operation from the delivery, and not because it has the form of a deed. The deed of a feme covert has the form, but she may plead “non est factum,” because it has no operation. The distinction between the deeds of femes covert and of infants 1 Sect. 12. 2 Sect. 259. 3 Cro. Eliz. 115; 1 Ld. Raym. 315. 14 INFANCY. is important; the first are void, the second voidable. Perkins, sect. 154, 1 says: ‘And it is to be known that a deed cannot have and take effect at every delivery, as a deed; for if the first delivery take any effect, the second is void; as in case an infant makes a deed, and deliver the same as his deed, &c., and after- wards, when he comes of full age, delivers it again as his deed, this second delivery is void. But if a married woman deliver a bond unto me, or other writing, as her deed, this delivery is merely void, and therefore, if after the death of her husband, she, being single, deliver the same again unto me as her deed, the second delivery is good and effectual.” Two objections were made at the bar to this proposition ; at least in its extent. 1. That leases by an infant by deed, upon which no rent is reserved, are absolutely void ; therefore the criterion ‘‘ whether the ‘deed is void or void- able,” does not depend upon the delivery, but upon the matter and contents, “‘whether it may possibly be for the infant’s benefit.” 2. A surrender by an infant, by deed, is absolutely void; therefore all deeds are not voidable only. As to the first, there are many obiter sayings, but there is no sufficient authority clearly to outweigh the reasons against this position. I cannot . find a case adjudged singly upon this ground. What looks the likest to an authority, is the opinion of Wray and Southcote »v. Gawdy, in Humphreston’s case, 16 Eliz: Moore 105, and 2 Leon. 216,? but there the judgment was upon the right and merits of the case, and not upon the point of the lease. The question as to the lease, arose upon the fictitious lease to try the infant lessor of the plaintiff's title in ejectment. The two (Wray and Southcote) held “that no rent being reserved there was no semblance of benefit to the infant,” whereas, in truth, it was greatly for his benefit. The objection was turning his own privilege of infancy against him, to bar his recovering. Besides, the lease was by parol. But reason soon prevailed, and it has been long settled “that an infant may make a lease without rent, to try his title.’ Very prejudicial leases may be made, though a nominal rent be reserved; and there may be most beneficial considerations for a lease, though no rent be reserved. What seems decisive is “ that the lessee can in no case avoid the lease on account of the infancy of the lessor,” 1 Title “ Faites,” p. 82. 2 V. also s. c. in Benlo. 195; Owen, 64; Dyer, 8837 a; 1 And. 40. ZOUCH ¥. PARSONS. 15 which shows it not to be void but voidable only. And itis better for infants that they should have an election. As to the second, the authority of ! Lloyd v. Gregory was cited, and sayings argu- endo, in? Thompson v. Leach. The case of Lloyd v. Gregory was determined upon the special verdict by three judges, of whom Sir William Jones and Croke were two. Sir William Jones reports “that the second lease being void, made an end of the question, and that the judges gave no opinion upon the other points.” The note in Croke? does not say a word of the only ground of the judgment, but rather supposes the second lease good, by arguing, “that there being no increase of term or diminution of rent, it had no sem- blance of benefit.’? Croke’s note might be confounded with what passed upon the trial at bar, for Roll. states sayings to that effect upon the trial at bar. 1 Ro. Abr. 728.4 But Sir William Jones is certainly right, for the second lease was void. And no surrender express or implied in order to, or in consideration of, a new lease, would bind, if the new lease is absolutely void, for the cause, ground, and condition of the surrender fails. In Thomp- son v. Leach® (which was a most favorable case for the plaintiff), much is said in argument “ to prove the surrender of an infant or. lunatic to be void,” to get rid of some doctrine laid down in Whittingham’s case.6 That the remainder-man injured by the act, could not avoid it.”” But more is said to overturn that doc- trine. There is no difference in this respect, between the heir in tail and the remainder-man ; neither claims under him whose act is in question, but both claim per formam dont. In Palmer, 254,7 Dodderidge denies the doctrine, and says: ‘‘ He in remainder and the donor, shall take advantage of infancy,” which is agreeable to Littleton’s reasoning § 635 ; it should seem against reason, that a feoffment made by an infant should grieve or hurt another, to take from them their entry, &c.”’ Suppose the comparison between an 1 Lloyd v. Gregory is reported in Cro. Car. 502, and Sir William Jones, 405, and is abridged in 2 Ro. Abr. 24, title “ Faites,”’ letter I. pl. 6, and 495, title “ Surrender,” letter F. pl, 7, and in 1 Ro. Abr. 728, title “enfants,” letter B. pl. 2 and 8. 2 8 Lev. 284; 2 Ventr. 198, 199; 8 Mod. 296, 301; 2 Salk. 618; Parliament Cases, 150; 1 Shower, 296 ; Comberb. 4838, 468; Carthew, 211, 485; Equity Cases Abridged, p. 278, pl. 3; 8 Salk. 800; 12 Mod. 178; and Holt, 357, 623. 3 Cro. Jac. 502. 4 Pl. 3. 5 1 Ld. Raym. 815. 6 8 Co. 48; H. 46 Eliz. 7 In Darcy v. Jackaon (to the third point of that case). 16 INFANCY. infant and a man non compos just (which it is not), the point of “the surrender being void or voidable” was not necessary to the judgment in that case. I know of no judgment upon the ground “that such a surrender is void.” Most undoubtedly the other party cannot say so. If an infant was to surrender an unprofit- able lease, and after acceptance the premises should be burnt, overflowed, or otherwise destroyed, the lessor never could say the surrender was void. There is no instance where the other party to a deed can object on account of infancy. Consequently the infant may let the surrender stand or avoid it, which proves it to be voidable only. If a new case should arise where it would be more beneficial to the infant, “ that the deed should be considered as void,” if he might incur a forfeiture, or be subject to damages, . or a breach of trust in respect to a third person, unless it was deemed void, the reason of the privilege would warrant an excep- tion in such case to the general rule. Powers of attorney are an exception to the general rule as to deeds; and a power to receive seisin is an exception to that. The end of the privilege is “‘to protect infants.” To that ob- ject, therefore, all the rules and the exceptions must be directed. But be the point upon the solemnity of the delivery, as it may (for there are respectable sayings the other way), it is not nec- essary to our determination. For we are all of opinion “ That the 1091. received, and the other circumstances of the transac- tion, show a semblance of benefit sufficient to make it voidable only, upon the matter of the conveyance.’ If it be voidable only, the second point is “ whether the infant, by his entry before the assizes (which appears to be during his minority), has avoided it.’ At the common law, the only conveyance in pais of the freehold and inheritance of land with transmutation of posses- sion, was by feoffment. If it was tortious, the disseisee was obliged to enter, to revest his possessory title; and then he might bring an action of trespass. So in the case of feoffments by an infant; he might enter during his minority to revest his posses- sory right for the sake of the profits; but still the feoffment was voidable only ; and he might elect to confirm it when he attained his full age. The reason why an infant cannot bring any writ analogous to a dum furt infra cetatem during his minority, is “ that his election may not be bound by the judgment.” Whether an entry be of any use in the present case is not material; it is KEANE ¥. BOYCOTT. . 17 sufficient, that it cannot have any larger effect than in the case of a feoffment. The infant is alive, still a minor. The defend- ant cannot elect for him; he is a mere stranger in every view, and has no estate affected by the conveyance. We are all of opinion that the plaintiffs ought to recover. And it is well for the defendant we are of this opinion. He would get nothing by defeating the plaintiffs here; for, finally, in another mode of proceeding, the conveyance must be confirmed ; and the defend- ant would be to pay all the costs here and there. It is fortunate for the suitors on both sides, when, consistent with rules and forms of proceeding, that justice, which must be the final deter- mination of the question, may be done in the first stage of the litigation. ‘The consequence of what has been said is, that The postea must be delivered to the plaintiffs. See the next two cases and notes to Fetrow v. Wiseman (post). Keane v. Boycott. (2 H. Black. 511. Court of Common Pleas, May 18, 1795.) Contracts of Infants; when void and when voidable. —In an action against A. for seducing the servant of B. from his service, it is sufficient evidence that A. asked the servant to enlist in the army, and afterwards gave him money. An infant slave in the West Indies executed an indenture, by which he covenanted to serve B. for a certain term of years as his servant, and B. covenanted to do certain things on his part. B. then came to England with the slave. In an action against A., who had seduced him from the service of B., A. was not per- mitted to allege that the contract was void, as being made by an infant and a slave, and therefore, that the declaration, which stated him to have been retained as a servant for a term of years, was not proved ; tor the Court held that the effect of such.a contract might be the manumission of the slave, and that consequently it was for his own benefit, and, being for his own benefit, that it was, at most, only voidable by the infant himself. THIS was an action on the case for enticing the plaintiff's ser- vant to leave his service. The first count of the declaration stated that, on the twenty-first of April, 1794, a certain per- son called Toney, was retained to serve the plaintiff for five years 2 18 : INFANCY. from that day, and then went on to state the service and entice- ment, &c. Thesecond count was, that, on the same day and year, &c., acertain person, called Toney, was retained to serve the plain- tiff for a certain term of years, which was not yet expired, and that the defendant well knew the premises, &c., &c. The third was for assaulting the servant, and seizing and carrying him away from the service of the plaintiff, &c., per quod, &c., &e. The facts were, that a negro boy, called Toney, a slave in the island of St. Vincent, about sixteen or seventeen years old, there executed an indenture, by which he bound himself to serve the plaintiff, who was coming to Europe, as a servant for five years, and the plaintiff covenanted to find him food, lodging, and cloth- ing, and medical assistance in case of sickness. The plaintiff soon after arrived in this country with the boy as ‘his servant, and went to Cheltenham, where the defendant, who was a captain in the army on a recruiting party, meeting the boy in the street with his livery on, asked him if he would enlist, to which he assented. The defendant then asked him whether he was an indented servant, to which he answered that he was bound to the plaintiff for five years. After this, the boy went to the defendant’s lodgings, where the defendant gave him two shillings, and told him to go to Glouces- ter to the regiment, to which place he accordingly went. Upon this, the plaintiff procured a warrant from a magistrate, under which the boy was taken and brought back to his service ; after which, the defendant sent two sergeants to take the boy again, and bring him back to the regiment, which they did; but it did not appear that the boy went with them unwillingly or by compulsion. On this evidence, the jury found a general verdict for the plaintiff. But a rule was obtained by Le Blanc, Serjt., to show cause why there should not be a new trial, on the ground that the only count to which the evidence was applicable was the last ; but, as it appeared that, the boy was not taken away by the sergeants against his will or by force, that count was not supported. That, with respect to the two other counts, there was neither evidence of enticement nor of the allegation of the boy being retained as a servant for five years, as in the first count, or for a certain term of years then unexpired, as in the second ; for, as to KEANE ¥. BOYCOTT. 19 the enticement, the merely asking a person to enlist, more especially by a recruiting officer, whose duty it was to promote the military service, could not be deemed an enticing, and the mohey was given to the boy after the enlisting was complete, not as an inducement to enlist; and, as to the allegation respecting the term of years, the boy being both an infant and a slave when the indenture was entered into, it was clearly void, and there- fore the contract was not binding. Adair, Serjt., was now going to show cause, when it was sug- gested by Heath, J., that, as slavery was differently modified in different parts of the West Indies, perhaps the effect of the mas- ter entering into a contract with his slave might be to enfranchise him, by analogy to the old law respecting villeins in England, to whom, if the lord entered into an obligation, it operated as a man- umission ;} and, if the effect were an emancipation from slavery, it was evidently a contract for the benefit of the infant, and, if not binding on him, at least only voidable by him, and therefore a third person should not be permitted to say that it was void, in order to protect himself from the consequences of his own tortious act. : Upon this being thrown out, it was agreed that the case should stand for further consideration. And on this day, without more argument, the judgment of the Court was thus given by Lord Ch. J. Eyre: In this case we were all agreed on the first question, that there was evidence of enticing the servant sufficient to go to the jury. But the question whether the allegation in the declaration, that the servant had contracted to serve the master for a term of years then to come and unexpired, was proved, was more difficult. The servant had, in fact, executed indentures by which he con- tracted'to serve the master for five years. But he was both an infant and a slave of his master at the time when he entered into the contract; he was very young and entirely in the power of the master. From these circumstances doubts arose whether the contract would bind him,-and if it would not bind him, whether it would avail anything as against the defendant. 1 Co, Litt. 187 b, 188, 11 State Trials, 842, Hargrave’s argument in the case of Somerset, the negro. 20 INFANCY, My brother Heath brought this question into the right train, by suggesting that the effect of this contract, by analogy to the law between lord and villein, might be to emancipate the slave,! and therefore that it was for the benefit of the infant, which might remove the objection of infancy and slavery. This leads to the consideration of what contracts may be entered into by infants, whether they can contract by deed, whether their contracts are void or only voidable, and if only voidable, who shall take advantage of the infancy to avoid them. In Litt. § 259, it is said, “if before such age (%. e., twenty- one) any deed or feoffment, grant, release, confirmation, obliga- tion, or other writing be made by any of them, &c., or ifany within such age be bailiff or receiver to any, &c., all serves for nothing and, may be avoided.” But this is certainly not correct, and Lord Coxk’s observation on it is: ‘ Here by this, &c., are implied some exceptions. out of this generality; as, an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction, whereby ‘he may profit himself afterwards; but if he bind him- self in an obligation, or other writing, with a penalty for the payment of any of these, that obligation shall not bind him.” And in Cro. Eliz. 920, it was holden that an obligation from an infant for his necessary meat and drink, in the very sum dis- bursed on that account was good, but not in double the sum. The conclusion is, that for those things which the Court can pronounce to be necessary for the infant, he may bind himself even by deed. If this question were between the master and the ser- vant himself, the Court would hardly hesitate to say that a contract to serve for five years, having the effect of emancipation from slavery, was a contract for necessaries, in the enlarged sense of the word, as extending to all the cases enumerated in Co. Litt. But it is not necessary to go the whole length of that proposi- tion, as this is not a case between the master and the servant. We have seen that some vuntiacts of infants, even by deed, 1 The reporter in a note which is too long to be inserted at length, here contends “that it is inconsistent both with the general policy and local institutions of the Brit- ish Islands in the West Indies, to suppose that a slave can be manumitted by impli- cation, The histories of those islands and their statute books show that manumission can only be effected by some act of the master, done ezpress/y for that purpose, and accompanied with the settlement of an annual provision on the slave so manumitted.” KEANE v. BOYCOTT, 21 shall bind them. Some are merely void ; namely, such as the Court can pronounce to be to their prejudice. Others, and the most numerous class, of a more uncertain nature as to the benefit or prejudice, are voidable only, and it is in the election of the infant toaffirmthemornot. In Rol. Abr. tit. “ Enfants,” ! and Com. Dig.? under the same title, instances are put of the three different kinds of good, void, and voidable contracts. Where the contract is by deed, and not apparently to the prejudice of the infant, Comyns states it as a rule, that the infant cannot plead non est factum, but must plead his infancy: it is his deed ; but this is a mode of dis- affirming it. He, indeed, states the rule generally, but I limit it to that case, in order to reconcile the doctrine of void and voidable contracts. Upon the distinction between those two species of contracts, we certainly are not warranted to decide that a contract which may have the effect of emancipation, and which certainly puts the infant in no worse condition than he was in before, is so pre- judicial to him as to be merely void. If it be a contract voidable only, the infant may affirm it, and that is sufficient to decide this case. For this is the case of a stranger and a wrongdoer interfering between the master and servant, and now seeking to take advan- tage of the infant’s privilege of avoiding his contracts, a privilege which is personal to the infant, and which no one can exercise for him. Suppose the case of a stranger disseising the feoffee of an infant, the entry tolled, and a writ of right brought by the feoffee, should the tenant be permitted to object the infancy of the feoffor? In Whittingham’s case, 8 Co. 42 4, it was holden that a privity in law, not in blood or estate, did not entitle a third person to avoid the act of an infant. That was the case of an escheat; and several other cases are put in our books, where, if the infant himself does not take advan- tage of infancy, no one else shall; and which are cases where the party who would take advantage of the infancy has a direct interest in the subject to which the act done by the infant has relation. The defendant in this case had no concern in the rela- tion between the plaintiff and his servant; he dissolved it officiously ; and, to speak of his conduct in the mildest terms, he was carried 11 Rol. Abr. 728. 2 8 Com. Dig. 619, vol. 8. See also 3 Burr, 1794, Zouch v. Parsons (anté, p. 3). 22 INFANCY. too far by his zeal for the recruiting service. If he had given himself time to reflect upon what his own feelings would have been if he had been in the situation of the master, I am per- suaded that he not only would not have solicited this negro boy to leave his master, but would not have accepted him if he had voluntarily offered to enlist at the drum-head. Upon the whole, therefore, we are of opinion that the verdict is right, and that there ought not to be a new trial. Rule discharged. See notes to Fetrow v. Wiseman (post). Fetrrow v. WISEMAN. (40 Ind. 148. Supreme Court of Indiana, November Term, 1872.) Acts of Infant, when voidable and when void. Suretyship. — Where an infant executed a promissory note as surety for his father, the principal, and the principal died, and his estate was solvent and so settled, but the note was not filed as a claim against his estate, and where evidence was offered tending to prove a ratification of the contract by the infant after reaching majority, held, that this failure so to file the claim did not defeat the right of action against the surety; that a contract of suretyship made by an infant is voidable only and not void, and is capable of ratification by the minor when he arrives at legal age; and, if so ratified, it is legally binding upon him and can be enforced. Affirmance of Executory Contract. — “In order to ratify an executory agreement made during infancy, there must be not only an acknowledgment of primary Hiability, but an express promise, voluntarily and deliberately made by an infant upon his arriving at the age of maturity, and with the knowledge that he is not legally liable.” Rule of Pleading and Evidence stated. AppgEaL from the Marion Circuit Court. Buskirk, J. Wiseman sued John Fetrow before a justice of the peace, on the following note: — “May 6th, 1859. One day after date we or either of us promise to pay Samuel S. Wiseman, or bearer, the sum of ninety- . five dollars, for value received, without any relief from valuation or appraisement laws. “ JosrpH Frrrow, “ Joun FrEtrow.” FETROW ¥. WISEMAN. 23 John Fetrow alone appeared and answered under oath, deny- ing the execution of the note. There was judgment for defend- ant, from which the plaintiff appealed to the Circuit Court. In the Circuit Court, the defendant, upon showing that the answer filed before the justice had been lost, was granted leave to file an amended answer, and therefore he filed an answer in two paragraphs. The first was the plea of non est factum; and the second, that, at the time when the note was executed, he was under twenty-one years of age. Both pleas were sworn to. There was no reply filed to the answer. By the agreement of the parties the cause was submitted to the Court for trial, and there was a finding for the plaintiff; and, over a motion for a new trial, there was judgment on the finding. The only valid assignment of error calls in question the correctness of the ruling of the Court, in overruling the motion for a new trial. A reversal of the judgment is demanded in the first place, on the ground that there was a trial without an issue, for the reason that there was no reply to the answer. The defendant, by consenting to go to trial without a reply, waived the objection, and cannot now be heard to complain of the irregularity. See Irvinson v. Van Riper, 34 Ind. 148; Train v. Gridley, 86 Ind. 241. It is next claimed that the evidence established the fact that the defendant had not executed the note, and that the finding should have been in his favor upon that issue. We think otherwise. We are satisfied that the execution of the note by the defendant was established by a very decided preponderance of the evidence. We think it is shown by the evidence, that when the note was executed the defendant was an infarit, and that he signed the note as the surety of his father, Joseph Fetrow. The note was executed the 6th of May, 1859. Joseph Fetrow, the principal in the note, died the 25th of March, 1864. The appellant was administrator. The estate was solvent, and was settled as such March 19th, 1868. The appellee failed to file the note against the estate. It is even claimed that his failure to do so releases the appellant, who was only surety on the note. We think otherwise. The appellee might have filed his note as a claim against the estate of Joseph Fetrow, deceased, but he was not bound to do so; and his failure to so file the claim did not defeat his right of action against the appellant. 24 INFANCY. It is in the next place contended by the appellant that he is not liable upon the note, for the reason that he executed the same as the surety of his father, when he was a minor. The position assumed is, that the contract of suretyship by a minor is abso- lutely void, and incapable of ratification upon his arriving at age. But it is maintained by the appellee. that the contract was not void, but was voidable only, and therefore capable of ratifi- cation. The question is not free from doubt or difficulty, for no inconsiderable diversity of opinion is to be found in the author- ities. The contracts of infants are divided into three classes ; namely, first, those which are absolutely void; second, those which are only voidable; and third, those which are binding. 1 Story Con. 98. The authorities all agree that contracts made by infants for necessaries are binding. It is well settled that a contract that is void is incapable of ratification; and it is as well and firmly settled that a contract which is voidable only may be ratified, and rendered as binding and effectual as though it had been executed by an adult. The difficulty is in determining what contracts are void and what are voidable, only. In Keane v, Boycott, 2 H. Black. 511,! Lord Chief Justice Eyre laid down the doctrine, that where the Court could pronounce the contract for the benefit of the infant, as for necessaries, it was good; where the Court could pronounce it to-be to the prejudice of the infant, it was void; and in those » cases where the benefit or prejudice was uncertain, the contract was voidable only. It was soon found that the above rule was subject to many modifications and exceptions. Thus in Tucker v. Moreland, 10 Pet. 58,2 Story, J., in speaking for the -Court, said: “It is apparent, then, upon the English authorities, that however true it may be that an infant may so far bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument it is voidable only, and not void; yet, that the instrument, however solemn, is held to be void, if upon its face it is apparent that it is to the prejudice of the infant. “ This distinction, if admitted, would go far to reconcile all the cases; for it would decide that a deed, by virtue of its solemnity, should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void.” The above rule has become practically obsolete, and the modern doctrine on the 1 Ante, p. 17. 2 Post, p. 128. FETROW v. WISEMAN. 25 subject may be regarded as settled, that all the contracts of an infant not in themselves illegal, as appointing an agent, are void- able only. The law is thus laid down by Professor Parsons, in his work on “ Notes and Bills:”” “ This incapacity or disability is intended for their benefit and protection against their own indis- cretion, or the knavery of others. Hence the exception in respect to necessaries; for these a child must have. Hence, too, the old distinction between the void and voidable contracts of an infant, those being held to be voidable only which might be for his benefit, while those were void which could do him no good. But this distinction we suppose to be practically obsolete; all the contracts of an infant, not in themselves illegal, being capa- ble of ratification by him when an adult, and therefore being voidable only ; for, if once absolutely void, no ratification could give them any force.” 1 Parsons Notes and Bills, 67; Hunt vy. Massey, 5 B. & Ad. 902; Gibbs v. Merrill, 3 Taunt. 307; Williams v. Moor, 11 M. & W. 256; Harris v. Wall, 1 Exch. 122; Reed v. Batchelder, 1 Met. 559; Aldrich ». Grimes, 10 N. - H.194; Edgerly v. Shaw, 5 Fost. (N. H.) 514; Goodsell v. Myers, 3 Wend. 479; Taft v. Sergeant, 18 Barb. 320; Cheshire v. Bar- rett, 4 McCord, 241; Little v. Duncan, 9 Rich. 55. Tyler, in his valuable work upon “Infancy and Coverture,” 54, admits that the tendency of modern decisions is to hold that the contracts of infants are voidable only, if not for necessaries. But we come now to the examination of the authorities, in refer- ence to the contract of suretyship entered into by an infant, and we are required to decide whether such contract is absolutely void, or voidable only. In Cockshott v. Bennett, 2 T. R. 768, it was held that the contract was void on the ground of fraud, and that any subsequent promise was a nudum pactum ; but the Court proceeded to say that it was not void by reason of being a con- tract of suretyship. The Court say: “ This is not like a security given by an infant, which is only voidable; for that may be revived by a promise after he comes of age. In such case he is bound in equity and in conscience to discharge the debt, though the law would not compel him to do so; but he may waive the privilege of infancy, which the law gives him for the purpose of securing him against the impositions of designing persons. And if he choose to waive his privilege, the subsequent promise will operate upon preceding consideration.” The same ruling was 26 INFANCY. made and supported by the same arguments in the cases of Hinely v. Margaritz, 3 Pa. St. 428; Curtin v. Patton, 11S. & R. 30.” Professor Parsons, in his work on “ Contracts,” says: ‘“ The better opinion, however, as may be gathered from the later cases cited in our notes, seems to be that an infant’s contracts are none of them, or nearly none, absolutely void, that is, so far void that he cannot ratify them after he arrives at the age of legal majority. Such, at least, is the strong tendency of modern decisions.” See Fonda v. Van Horne, 15 Wend. 631; Breck- enridge’s Heirs v. Ormsby, 1 J. J. Mar. 236; Scott v. Buchanan, 11 Humph. 468; Cole v. Pennoyer, 14 Ill. 158; Cummings ». Powell, 8 Tex. 80; The State v. Richmond, 6 Foster N. H. 282; Williams v. Moor, 11 M. & W. 256; 1 Am. L. Cas. 103. The case of Williams v. Moor, supra, is a very interesting and instruc- tive case on the subject under discussion. Parke, B., says that much of the confusion in the books and adjudged cases has grown out of the improper use of the words “ void ” and “ void- able.” He says that if by the word ‘ void” is meant ‘incapable of being enforced,” then the most of the contracts of infants are void ; but if by the word “ void” is meant ‘incapable of being ratified,” then very few of the contracts of an infant are void. He further said that “‘the principle on which the law allows a party who has attained his age of twenty-one years to give valid- ity to contracts entered into during his infancy is, that he is supposed to have acquired the power of deciding for himself whether the transaction in question is one of a meritorious char- acter by which in good conscience he ought to be bound.” We have been referred by counsel for appellant to the following authorities as supporting their position, that a contract of surety- ship entered into by an infant is void and incapable of being ratified when the infant has arrived to his legal majority: Maples v. Wightman, 4 Conn. 376; Allen v. Minor, 2 Call, 70; Wheaton v. East, 5 Yerg. 41; Merriam v. Cunningham, 11 Cush. 40; Bur- ley v. Russell, 10 N. H. 184. The case in 4 Conn. (supra) is not in point, as the decision in that case was based upon a statute of that State, which provided “ that no person under the govern- ment of a parent, guardian, or master shall be able to make any contract or bargain which, in the law, shall be accounted valid.” The Court considered the above statute, to use their expression, “as raising the common law, and rendering absolutely void all FETROW v. WISEMAN. 27 contracts made within its prohibition.” Such ruling, based upon such a statute, was undoubtedly correct. The case in 2 Callis not much in point. In that case an infant had become security upon a twelve-months replevy bond. He filed a bill in the high Court of Chancery, in which he alleged his infancy, and asked to be relieved from such suretyship. The Court held that he was entitled to the relief prayed for. The case does not seem to have received much consideration. The opinion of the Court is condensed into seven lines, in large type, ina small book. In the case of Wheaton v. East (supra), the ruling was placed upon the general rule laid down by Lord Chief Justice Eyre in Keane v. Boycott, 2 H. Bl. 511, which is, ‘that, when the Court can pronounce the contract to be to the infant’s prejudice, it is void, and when to his benefit, as for neces- saries, it is good; and, when.the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the elec- tion of the infant.” The Court, after quoting the above language, proceed to say: “‘ Thus, the contract of an infant, as security for another, the Court can see must be to his prejudice, for he can derive no benefit from it, therefore it is void; but a contract for necessaries is plaialy for his benefit, and therefore it is good, and binding upon him.” As we have heretofore seen, the above rule has becons obsolete, and consequently a ruling based thereon cannot receive much con- sideration, as the reason upon which it is based no longer exists. The cases referred to (supra) in 11 Cush. and 10 N. H. are not in point, for the reason that the question involved in each was whether an infant, who had represented himself to be of full age, and thus procured credit, was not estopped by such representations, from setting up his infaney in avoidance of his contract, and it was held in both cases that he was not estopped from pleading his infancy. From a careful examination of the modern decisions and text writers, we are satisfied that the fol- lowing propositions may be regarded as settled: first, that an infant’s contracts for necessaries are as valid and binding upon the infant as the contracts of an adult, and that such contracts cannot be disaffirmed, and need not be ratified before they can be enforced; second, the contract of an infant’ appointing an agent or attorney in fact is absolutely void, and incapable of rati- fication; third, any contract that is illegal, by reason of being 28 INFANCY, against a statute or public policy, is absolutely void and incapa- ble of ratification ; fourth, all other contracts made by an infant are voidable only, and may be affirmed or disaffirmed by the infant at his election, when he arrives at his legal majority. The second proposition may not be founded in solid reason, but is so held by all the authorities. Trueblood v. Trueblood, 8 Ind. 195 ;1 Pickler v. The State, 18 Ind. 266; Knox v. Flack, 22 Pa. St. 887; Waples v. Hastings, 3 Harring. Del. 403 ; Doe v. Rob- erts, 16 M. & W. 778; Story Agency, 463, 474, 477; 1 Am. Lead. Cas. (8d ed.) 248. The contract of the appellant being voidable, it cannot be en- forced unless it was affirmed by him after he arrived of age. It remains for us to inquire what acts will amount to a confirmation, and whether, under the pleadings of this cause, proof of such acts could be made. What facts and circumstances will give binding force to the voidable acts and contracts of an infant depends very much upon the nature of the act to be ratified or confirmed. Words and acts which operate as a ratification of an executed contract, may fall very far short of a confirmation of one that is wholly executory on the part of the infant. To make a voidable con- tract of an infant binding upon him, he must expressly ratify it after he attains to full age. A ratification will not be inferred from a mere acknowledgment of the debt; but a promise to pay after he has arrived at full age, with a knowledge that he is not liable, will amount to a ratification. Conaway v. Shelton, 3 Ind. 334; Conklin v. Ogborn, 7 Ind. 593. The law is stated with ‘ great clearness and force by Tyler in his work on “ Infancy and Coverture,” where he says: ‘The promises of an infant for the future payment of money, and all his executory contracts which are voidable, can be ratified only by a new promise to pay, or such express acts as will be equivalent to a new contract. The most that can be said of the original contract made during in- fancy is, that it is a valid consideration, and will afford aliment upon which to predicate a binding undertaking of the minor after he attains to full age. The original contract not being binding on the infant, the new promise must possess all the in- gredients of a cOmplete agreement. Anything short of this will fail to make the infant liable on the demand. So stringent is 1 Post, p. 86. FETROW v. WISEMAN. 29 this doctrine, that a full acknowledgment or promise to pay a part, or even actual payment of a part, will not render the infant liable to pay the whole debt. This view is sustained by all the most approved authorit'es of the present day. “As no agreement is complete until the minds of the parties meet, it follows that the new promise, to be binding on the infant, must be made to the creditor in person, or to his agent. The new promise of the infant must be voluntary, free, and with full knowledge that otherwise he would not be liable, and of course the promise must be made before the commencement of the suit to recover the demand.” Tyler Infancy and Coverture, 86, 87. Story states the rule: ‘In order to ratify an executory agreement made during infancy, there must be not only an ac- knowledgment of primary liability, but an express promise, vol- * untarily and deliberately made by the infant upon his arriving at the age of maturity, and with the knowledge that he is not legally liable.” For the convenience of future reference we cite the following authorities, which fully support the above doctrine: Goodsell v. Myers, 3 Wend. 479; Rogers v. Hurd, 4 Day, 57; Wilcox v. Roath, 12 Conn. 550; Hale v. Gerrish, 8 N. H. 314 ; Bigelow v. Grannis, 2 Hill, N. Y. 120; Millard v.. Hewlett, 19 Wend. 301; Watkins v. Stevens, 4 Barb. 168; Gay v. Ballou, 4 Wend. 403; Ford v. Phillips, 1 Pick. 202; Thompson ». Lay, 4 Pick. 48; Hubbard ». Cummings, 1 Greenl. 11;1 Thrupp ». Fielder, 2 Esp. 628; Harmer v. Killing, 5 Esp. 102; Whitney v. Dutch, 14 Mass. 457 ;2 Smith v. Mayo, 9 Mass. 60; Jackson v. Carpenter, 11 Johns. 539; Deason v. Boyd, 1 Dana, 45; Tucker v. Moreland, 10 Peters, 58;2 Hoit v. Underhill, 10 N. H. 220; Merriam v. Wilkins, 6 N. H. 482; Thornton »v. Illingworth, 2 B. & C. 824; Thing v. Libbey, 16 Maine, 55; Curtin v. Patton, 11S. & R. 805; Brooke v. Gally, 2 Atk. 34; Hinely v. Margaritz, 3 Barr (Pa.), 428; Mayer v. McLure, 86 Miss. 889; Boody v. Mc- Kenney, 23 Maine, 517. Evidence was offered tending to prove a ratification of the contract by the appellant after he had arrived at age ; and if such evidence was admissible under the issues, and was properly considered by the Court in deciding the cause, it may have been sufficient to establish a ratification of ‘the contract ; but this we do not decide. Could the Court con- sider the evidence which was admitted to prove the ratification? 1 See this case (post). 2 Post, p. 38. 3 See this case (post, p. 128). 380 INFANCY. The appellant pleaded his infancy. The plaintiff failed to reply, but the defendant consented to go to trial without a reply, and we have repeatedly held that was a waiver of the reply, and that we would regard the answer as denied. This is as far as we have gone. We have never held that a party who fails to answer a complaint or reply to an answer could prove any affirmative matter, and do not think that such should be the rule. The Court or the opposite party would have no means of knowing what affirmative matter might be pleaded. The appellant having proved that he was an infant when he executed the note, he defeated a recovery thereon unless the plaintiff established a new promise. The recovery must be on the new promise, which is supported by the original considera- tion. It was, therefore, incumbent upon the plaintiff to reply a ratification. Williams v. Moor, 11 M. & W. 256; Cohen v. Arm- strong, 1 M. & S. 724; Thornton v. Illingworth, 2 B. & C. 824; Hartley v. Wharton, 11 A. & E. 934; McKyring v. Bull, 16 N. Y. 297. Where secondary evidence bearing on the issue is admitted without objection, it should be considered, because it was perti- nent and tended to establish the issue, and it was the fault of the opposite party that he did not require better evidence. But in this case the evidence did not tend to support any issue in the cause. The question of ratification was altogether foreign to the case. Brown v. Perry, 14 Ind. 82. The infancy of the defendant having been proved, he defeated the action, and it results that the Court erred in finding for the plaintiff, for which error the judgment must be reversed. The judgment is reversed with costs ; and the cause is remanded for a new trial, with leave to the plaintiff to reply to the answer setting up infancy. F. T. Dye and A. C. Harris, for appellant. appellee. S. Adams, for As to what acts of an infant are ab- solutely void and what voidable only, it is very difficult to lay down a rule that. will meet general approval. By ‘‘void,” in this connection, is meant an act that is a mere nullity, both as to the immediate parties to the act and as to third parties; and one that is incapable of being subsequently ratified and thereby made valid and effectual. By ‘‘voidable” is meant an act that is either valid and effectual as between both the immediate and third parties till it is avoided or rendered of no effect by the party entitled to exercise this privilege of avoiding it, or one that is at least of sufficient validity to admit of subsequent ratification, though FETROW v. not capable of being enforced against the infant without such ratification.! Several rules have been laid down on the subject by different writers and tri- bunals as follows : — Perkins (§ 12) thus lays down the rule: ‘All such gifts, grants, or deeds made by infants which do not take effect by delivery of his hand are void ; but all gifts, grants, or deeds madé by infants, by matter in deed or in writ- ing, which do take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate.” This rule was approved and ex- plained by Lord Mansfield in the principal case, Zouch v. Parsons (su- pra), and is recognized in the following cases and text-books : — Allen v. Allen, 2 Dru. & War. 307; 8. Cc. 1 Con. & LL. 427; Conroe »v. Birdsall, 1 John Cas. 127 (debt on bond); Bool v. Mix, 17 Wend. 130, and Doe v. Abernathy, 7 Blackf. 442 (deeds of bargain and sale) ; Babcotk v. Doe, 8 Ind. 110; Roof v. Stafford, WISEMAN. 81 7 Cow. 179, and authorities there cited; Stafford v. Roof, 9 Cow. 626; Tucker v. Moreland, 10 Peters, 71 (post, p- 128); Dominick v. Michael, 4 Sandf. (N. Y. Sup’r Ct.) 418; State v. Plais- ted, 43 N. H. 413 (a chattel mortgage). See also Reeve’s Dom. Rel. ch. iv. p. * 250; 2 Kent's Com. * 236; Breck- enridge’s Heirs v. Ormsby, 1 J. J. Marsh. 244. ~ Previous to the case of Zouch ». Parsons, the weight of authority seems to have favored the view that Perkins, in sec. 12, above quoted, referred to the delivery of the thing granted, and not to the instrument evidencing the gift, grant, &c.; and accordingly a feoff- ment with livery of seisin by the infant in person was always conceded to be voidable and not void,? ‘* not only be- cause he is allowed to contract for his benefit, but because that there ought to be some act of notoriety to restore the possession to him equal to that which transferred it from him.” Bac. Abr. Inf. & Age, I. pl. 3, and cases cited ; Com. Dig. ‘‘ Enfant,” B. 2, C.. 3, and 1 As to the loose and interchangeable use of these words in the cases, see Tyler on Inf. & Cov. pp. 45, 46,§ 12. This inaccurate use of terms is thus referred to by Graves, J., in Minock v. Shortridge, 21 Mich. 315 : “ Much confusion has undoubtedly arisen in respect to the engagements of minors, as well as in many other cases, either from an incautious use of the words ‘ void’ and ‘ voidable,’ or in their reception or ap- plication in a loose or inappropriate sense. The executory contract of an infant, such asa promissory note, is not void in the sense of being a nullity, because it may be confirmed, but it has no binding force until it is confirmed. Being executory and not binding until confirmed, it is said to be voidable, but as thus applied this word is to be understood in a sense quite different from that which belongs to it when ap- plied to the executed contract of an infant. The general rule is, that an executed contract is binding until avoided by words or conduct which show that the party refuses longer to be bound by it. But, when it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of con- firmation or avoidance by the promisor, though it is not binding until it is ratified.” See also Mason v. Denison, 15 Wend. 72; State v. Plaisted, 43 N. H. 418; Hale v. Gerrish (post), and cases cited in notes. 2 So, as to an actual delivery by the infant of goods contracted for, a distinction being taken between an actual delivery of the thing contracted for and a bare agree- ment to deliver it, or where the donee or vendee takes it by force of the gift or sale only ; the first being voidable, but the latter absolutely void. Bac. Abr. Inf. & Age, L pl. 8, and cases cited ; Com. Dig. “ Enfant,” C. 2, C. 8, and cases cited. See also Roof v. Stafford, 7 Cow. 179; Stafford v. Roof, 9 Cow. 626; Fonda v. Van Horne, 15 Wend. 685; Chapin v. Shafer, 49 N. ¥. 412. 32 cases cited. See Tucker v. Moreland, 10 Peters, 68 (post, p. 128). The rule previous to this case (Zouch v. Parsons), as to what acts were void and what voidable, seems to have been understood to be that ‘‘ those acts are void in which there is no semblance of benefit to the minor ;” the rule in Per- kins, when understood to refer to the delivery of the thing, and the rule last above mentioned being complementary to each other. According to these authorities, ‘‘ it makes no difference whether the deed be delivered by his own hand or not; but whether it be for his benefit or not. If the former, then it is voidable ; if the latter, then it is void.” See Tucker vo. Moreland, 10 Peters, 68 (post, p. 128), and cases there cited ; also 1 Story on Cont. (4th ed.), $$ 57, 58, and notes; id. (Sth ed.), §§ 101, 102. By the opinion in Zouch v. Parsons, the rule laid down by Perkins was ex- tended, and the distinction between feoffments with livery of seisin, and any deeds or instruments which con- vey an interest in the property, abol- ished; and under the rule as stated in Zouch v. Parsons, as now understood, if the nature ‘of the instrument actually delivered by the infant be such as to pass an interest in the property, it is voidable only ; and accordingly deeds of conveyance, mortgages, &c., made upon a valuable consideration and without any special circumstances to render them void, seem universally conceded’ to be voidable only. Bool v. Mix, 17 Wend. 119; Gillett v. Stanley, 1 Hill (N. Y.), 121; Van Nostrand v. Wright, Lalor’s Sup. to Hill & Den. 260; Eagle Fire Co. v. Lent, 6 Paige, Ch. 635; Wheaton v. East. 5 Yerg. 41; Dominick v. Michael, 4 Sandf.(N. Y.Sup’r Ct.) 374; Roberts v. Wiggin, 1 N. H. 73; State v. Plais- ted, 43 N. H. 413; Kline v. Beebe, 6 Conn. 494: Johnson v. Rockwell, 12 Ind. 76; Doe v. Abernethy, 7 Blackf.. 442; Pitcher v, Laycock, 7 Ind. 398; ‘Law v. Long, 41 Ind. 595 ; Babcock v. _ Doe, 8 Ind. 110; Phillips v. Green, 8 INFANCY. A. K. Marsh. 9; s. c. 5 Monroe (Ky.), 344; Hubbard v. Cummings, 1 Greenl. (Me.) 11; Inhabitants of Worcester v. Eaton, 138 Mass.. 371; Boston Bank v. Chamberlin, 15 Mass. 220; Kendall ». Lawrence,. 22 Pick. 540; Irvine v. Irvine, 9 Wall. (U. 8.) 617; Barker v. Wilson, 4 Heisk. 268; Scott v. Buchanan, 11 Humph. 468; Stuart v. Baker, 17 Tex. 417; Youse v. Norcoms, 12 Mo. 563; Schneider o. Staihr, 20 Mo. 271; Palmer v. Miller, 25 Barb. 399; Wallace’s Lessee v. Lewis, 4 Harr. (Del.) 75; Slaughter v. Cunningham, 24 Ala. 260; Hastings v. Dollarhide, 24 Cal. 195; but if the nature of the instrument delivered be such that no interest passes, or if it be not delivered by him in person, it is void. The construction put upon the rule in Perkins (§ 12), in Zouch v. Parsons, seems to be pretty generally admitted to be correct, at least with the qualifications to be herealter referred to. See Tucker v. Moreland, 10 Peters, 71 (post, p. 128) ; 2 Kent’s Com. 236; Breckenridge’s Heirs v. Ormsby, 1 J. J. Marsh. 244; and the cases cited at the beginning of this note and to the third point, ante ; and the true line of distinction seems to be there pointed out ; viz., between acts done by the infant in person aud by an agent. See the principal case of Fetrow v. Wiseman, and 1 Am. Lead. Cases (4th ed.), note, p. 243. A third rule was thus stated by Eyre, C. J., in the principal case of Keane v. Boycott (supra): ‘* We have seen that some contracts‘of infants, even by decd, shall bind them. Some are merely void, namely, sucky as the Court can pronounce to be to their prejudice. Others, and the most numerous class, of a more uncertain nature as to the benefit or prejudice, are voidable only, and it is in the election of the infant to affirm them or not.” This rule has been substantially fol- lowed by the following authorities and writers: Pitcher v. Turin Plank Road Co., 10 Barb. (N. Y.) 489; Fisher v. FETROW v. Mowbray, 8 East, 330; Baylis v. Dine- ley, 3 M. & Selw. 481; Regina v. Lord, 12 Adol. & Ell. n. s. 757; Vent v. Os- good, 19 Pick. 573, where it is said that ‘if it (the contract) be clearly prejudi- cial to him, it is void.” ‘* And by anal- ogy ” (to what is necessary or not),‘‘ the Court must determine what is to be con- sidered so prejudicial as to render the contract void, and what circumstances ‘ show asemblance of benefit sufficient to make it voidable only.’” Lawson »v. Lovejoy, 8 Greenl. 405; West v. Penny, 16 Ala. 189; Fridge v. The State, 3 Gill & John. 115, where it was held that a release ‘‘ of and from all and every action, suit, claim, or demand,” &c., ex- ecuted by an infant, on receiving from her guardian his promissory note for the amount belonging to her in his hands, was void; Levering v. Heighe, Adm’r, 2 Md. Ch. Dec. 83 ; s. c. 3 Md. Ch. Dec. 368; Ridgeley ». Crandall, 4 Md. 441; Cronise v. Clark, 4 Md. Ch. Dec. 406; Monumental Building Asso- ciation v. Herman, 33 Md. 132; Mc- Gan v. Marshall, 7 Humph. 125; Lang- ford, Adm’r, v. Fry, 8 Humph. 446 (release of legacy by infant held void) ; Wheaton v. East, 5 Yerg. 61; Kline v. Beebe, 6 Conn. 503; Chandler v. Mc- Kinney, 6 Mich. 217; Robinson v. Weeks, 56 Me. 106. In Dunton »v. Brown, Jan. Term, 1875, Sup. Court of Mich. (80 Mich.), it is said that “it is only such agreements as are not possibly to be regarded as ben- eficial to him which are null from the beginning;” United States v. Bain- bridge, 1 Mason, 82, where Judge Story declares that “the distinctions laid down by Lord Chief Justice Eyre, seem founded in solid reason.” Again, in a later case (Tucker v. Moreland, 10 Peters, 70, post, p. 128), after reviewing the authorities, he says: ‘‘ It is appar- ent then, upon the English authori- , ties, that, however true it may be that an infant may so far bind himself by 1 Pages * 235-236. See also Tyler on 16; Metc. on Cont. p. 40. 3 WISEMAN, 83 deed in certain cases, as that in conse- quence of the solemnity of the instru- ment it is voidable only, and not void’ (as per rule in Zouch v. Parsons) ; ‘* yet that the instrument, however sol- emn, is held to be void, if upon its face it is apparent that it is to the prejudice of the infant. This distinction, if ad- mitted, would go far to reconcile all the cases, for it would decide that a deed by virtue of its solemnity should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void.” See also Reeve’s Dom. Rel. ch. iv. p. *250; 1 Story on Cont. (4th ed.) § 58; id. (5th ed.) § 102; 2 Kent's Com. 236, where it is stated that ‘‘ the point” (the rule in Keane v. Boycott) ‘is not susceptible of greater preci- sion;” also Lester v. Frazer, Riley's Ch. 76, 86; 8. c. 2 Hill’s Ch. 541, where the rule is approved as to executory contracts, and the rule in Perkins ap- proved as to executed contracts. In the same case (Tucker ». More- land) it is also stated that ‘‘the re- sult of the American decisions has been correctly stated by Mr. Chancel- lor Kent, in his learned commentaries (2 Com. Lect. 31),' to be that they are in favor of construing the acts and con- tracts of infants generally to be void- able only, and not void, and subject to their election, when they become of age, either to affirm or disallow them; and that the doctrine of Zouch v. Parsons has been recognized and adopted as law. It may be added that they seem gener- ally to hold that the deed of an infant conveying lands is voidable only, and not void, unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant ; and this upon the nature and solemnity, as well as the operation, of the instrument.” On reviewing the preceding author- ities, it must be confessed that the rules laid down by them are extremely inhar- Inf. & Cov. p. 44, § 10; Bing. on Inf. 13- 34 monious and unsatisfactory; very few cases on examination agreeing precisely as to what the true rule is. The rule laid down by Mr. Bingham,* that ‘‘ acts which are capable of being legally ratified are voidable only, and acts which are incapable of being le- gally ratified are absolutely void,” seems also entirely unsatisfactory and incapable of affording a clear and prac- tical solution of the difficulty which lies back of this, in determining what acts are so capable of ‘being legally ratified, and the converse.” It would seem that there is no escape out of this difficulty and confusion ex- cept to make all the acts and contracts of infants (with a few well-defined excep- tions to be hereafter stated) voidable and not void, and so capable of legal ratification on arriving at majority; which rule, it is believed, will afford an equal measure of protection to the infant, be more beneficial to him, and prevent unnecessary injury to third parties dealing with him; and it is be- lieved that the weight of reason, and perhaps of the more recent authorities, will be found to support this view, at least in the United States; and though many of the older cases have not been in terms overruled, it perhaps has been only because the identical points there- in determined have not arisen and been carried to the courts of last resort for adjudication. In support of this opinion may be cited the principal case of Fetrow v. Wiseman, 40 Ind. 148 (ante), where the authorities are collected and re- viewed, and the rule is stated as fol- lows: ‘‘ First, that an infant’s contracts for necessaries are as valid and binding upon the infant as the contracts of an adult; and that such contracts cannot be disafiirmed, and need not be ratified before they can be enforced; second, the contract of an infant appointing an agent or attorney in fact is absolutely void and incapable of ratification ; third, 1 Bingham on Inf. 45. INFANCY. any contract that is illegal, by reason of being against a statute or public policy, is absolutely void and incapable of rat- ification; fourth, all other contracts made by an infant are voidable only, and may be affirmed or disaflirmed by the infant at his election, wben he arrives at his legal majority.” See also 1 Parsons on Cont. (5th ed.), 294, 295 and notes; Tyler on Inf. & Cov. p. 44, § 10, p. 49, § 14; Cole v. Pennoyer, 14 Ill. 158 ; Cheshire v. Bar- rett, 4 McCord, 244; Roof v. Stafford, 7 Cow. 180; Scott v. Buchanan, 11 Humph. 471; Barker v. Wilson, 4 Heisk. 269; Strain v. Wright, 7 Ga. 568; Slocum v. Hooker, 13 Barb. 536; Cummings v. Powell, 8 Tex. 90; 17 Tex. 421; Whitney v. Dutch, 14 Mass. 462 (post, p. 38); Ferguson v. Bells, Adm’r, 17 Mo. 351; Townsend v. Cox, 45 Mo. 403; Baker v. Kennett, 54 Mo. 88; Weaver v. Jones, 24 Ala. 424; Shropshire v. Burns, Adm’r, 46 Ala. 108; Mustard v. Wohlford’s Heirs, 15 Grat. 337 (reported in full, post); Vaughan v. Parr, 20 Ark. 608; Chapin v. Shafer, 49 N. Y. 412; Duvall »v. Graves, 7 Bush (Ky.), 467; Henderson v. Fox, 5 Ind. 489; Towell v. Pence, 47 Ind. 307; 1 Amer. Lead. Cases (4th ed.), 244, The rule above stated in Fetrow v. Wiseman is perhaps too broad, it being well settled that ‘* whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it with- out suit of law.” See Zouch v. Parsons (ante, p. 3), and Elliott v. Horn, and notes (post, p. 75). So where'the principal contract is au- thorized by law, an infant may bind him- self by that which is incidental to it. See Roach v. Quick, 9 Wend. 238 (post, p. 81); Butler v. Breck, 7 Met. 164; Develin v. Riggsbee, 4 Ind. 464; Gavin v. Burton, 8 Ind. 69. What particular acts of minors are ab- solutely void is considered in the note to Saunderson v. Marr, Trueblood v. True- blood, and Whitney v. Dutch (post). 3 See 2 Kent’s Com. * 284; Tyler on Inf. & Cov. ch. iii. § 15, p. 50. SAUNDERSON ¥V. MARR, 85 SAUNDERSON v. Marr. (1 H. Black. 75. Court of Common Pleas, November 17, 1788.) Warrant of Attorney of Infant absolutely void. — A warrant of attorney given by an infant is absolutely void, and the Court will not confirm it, though the infant appear to have given it (knowing that it was not valid) for the purpose of collusion. . Tue defendant, being an infant, joined with his brother in giving a warrant of attorney to the plaintiff to confess a judgment, which was accordingly entered up, and the defendant taken in execution. In order to procure his discharge, he alone gave a second warrant of attorney, on which judgment was again entered and he again taken in execution. On this a rule was granted to show cause why the last judgment should not be set aside, and the warrant of attorney cancelled, on the ground that the defendant was an in- fant at the time of giving it. Marshall, Serjt., showed for cause a declaration of the defendant when he gave the second warrant of attorney, that he would take no advantage of his infancy, a promise to pay the debt, and some circumstances of collusion between him and his brother. This application, Marshall said, was made to the equitable jurisdiction of the Court ; and in equity the acts of an infant are often confirmed; such as an agreement to settle an estate, and the like. But the Court said: such acts of an infant as are only voidable are allowed in equity to be con- firmed, but not such as are actually void. A warrant of attorney is of the latter description,! which the Court cannot make good, though there appear circumstances of fraud on the part of the infant. i Rule absolute without costs. 1 See, to the same point,Com. Dig. “ Enfant,” c. 2; Knox v. Flack, 22 Penn. St. 337; Waples v. Hastings, 8 Harring. 403; Carnahan v. Alderdice, 4 Harring. 99; Bennett v. Davis, 6 Cow. 393. See also Pickler v. The State, 18 Ind. 266. Where a judgment has been entered upon a warrant of attorney given by two or more persons, one of them being an infant, the warrant, and with it the judgment, will be vacated as to the infant, and allowed to stand as against the other parties. Matteux v. St. Aubin, 2 W. Black. 1188; Ashlin v. Langton, 4 Moore & Scott, 719. A warrant of attorney is usually by deed; but see Kinnersley v. Mussen, 5 Taunt. 264, to the point that it need not neces- sarily be by deed. As to the invalidity of the cognovit of an infant, see Oliver v. Wood- roffe, 4 M. & W. 650. See notes to Whitney v. Dutch (post, p. 88). 36 INFANCY. TRUEBLOOD v. TRUEBLOOD. _ (8 Ind. 195. Supreme Court of Indiana, November 29, 1856.) An Infant cannot appoint an Agent. — A bond attempted to be executed for an infant through an agent is absolutely void, and incapable of ratification by him when he arrives at majority. AppzaL from the Vigo Circuit Court. Perkins, J. Bill in chancery, under the old practice, to com- pel a specific performance, and set aside a fraudulent deed. Bill dismissed. The facts of the case, so far as material to its decision, are as follows: In 1845, William Trueblood was an infant, and owner of a piece of land. At that date Richard J. Trueblood, the father of said William, executed a title-bond to one Nathan Trueblood, whereby he obligated himself to cause to be conveyed to him, said Nathan, the piece of land belonging to William, after the latter should become of age. The conveyance was to be upon a stated consideration. The bond is single, — simply the bond of Richard, — and William is nowhere mentioned as a party, but his name is signed with his father’s at the close of the condi- tion, as may be supposed, in signification of his assent to the execution of the instrument by his father. We shall so treat his signature to the bond. After William became of age, it is claimed that he ratified the bond, and afterwards sold and conveyed the land to another, Robert Lockridge, who had notice, &c. This bill was filed in order to have the deed to Lockridge set aside, and a conveyance decreed to Nathan Trueblood, pursuant to the terms of the bond. The Court below, as we have stated, refused to enter such a decree, and held, as counsel inform us, that the bond was not susceptible of ratification by William Trueblood; and whether it was or not is the important question in the case; for, if the bond was not susceptible of such ratification, we need not inquire into the alleged facts which it is claimed evidence that such an act had been done. As we have seen, the bond is not in terms the bond of William Trueblood. He could not, by virtue of its express provisions, be sued upon it. Where a father signs his name to articles of apprenticeship of his son, simply to signify his assent to them, he cannot be a party to a suit upon the articles. \ yyw TRUEBLOOD v. TRUEBLOOD. 87 5 Ind. R. 588. If the bond, then, can in any light be regarded as the contract of William Trueblood, it must be because his father may be considered his agent in executing it. Can, then, an infant, after arriving at age, ratify the act of his agent per- formed while he was an infant? This depends upon whether his appointment of an agent is a void or voidable act. If the former, it cannot be ratified (5 Ind. R. 353); if the latter, it can be. Reeve’s Dom. Rel. 240. In the first volume of American Lead- ing Cases (3d ed.), p. 248 et seq., the doctrine is laid down as the result of the American cases on the subject, that the only act an infant is incapable of performing, as to contracts, is the appoint- ment of an agent or attorney. Whetlier the doctrine is founded in solid reason, they admit may be doubted; but assert that there is no doubt but thatit islaw. See the cases there collected. The law seems to be held the same in England. In Doe». Roberts, 16 M. & W. 778, a case slightly like the present in some respects, the attorney, in argument, said: ‘‘ Here a tenancy has been created, either by the children, or by Hugh Thomas acting as their agent.” Parke, B., replied: “That is the fallacy of your argument. An agreement by an agent cannot bind an infant. If an infant appoints a person to make a lease, it does not bind the infant, neither does his ratification bind him. There is no doubt about the.law ; the lease of an infant, to be good, must be his own per- sonal act.’ So, here, had the bond been the personal act of the infant, he could have ratified it. It would have been simply voidable. But the bond of his agent, or one having assumed to act as such, is void, and not capable of being ratified. See 8 Blackf. 845. The decree below must therefore be affirmed with costs. .Gooxtys, J., having been concerned as counsel, was absent. Per Curiam. — The decree is affirmed with costs. S. B. Gook- ins, for the appellant.1 This case may perhaps be distin- executed by an agent under parol au- guished from Whitney v. Dutch (post), thority. See Story on Agency, § 49. by the fact of the instrument’s being un- See notes to Whitney v. Dutch (post). der seal, and so not capable of being 1 The counsel for the appellant cited the following authorities: On attaining his majority, the infant expressly ratified the contract, and it is very clear that the rati- fication made it binding from the first. 14 Mass. 457, 461; 10 id. 187; 18 id. 871; 15 id. 220; 1 Hayw. 148. : 388 INFANCY. Wuirtney et al. v. Durcn et al. (14 Mass. 457. Supreme Court of Massachusetts, March Term, 1817.) Parol Authority voidable only. Ratification after reaching Majority. The adult partner of a firm of which the other partner was an infant made a promissory note in the name of the firm for a debt of the copartners, which the infant partner, after the dissolution of the partnership, on arriving at his majority, on being applied to for payment, acknowledged to be due; and promised that on his return home he would endeavor to procure the money and send it to the plaintiff, saying at the same time that it was hard for him to pay it twice. Held, that the note was voidable and not void, and that this was a sufficient ratification of the original promise. ASSUMPSIT on a promissory note, made by the defendants to the plaintiffs, on the 18th of December, 1811, for eight hundred and forty-seven dollars and seventy-six cents. The defendant Dutch was defaulted. The defendant Green pleaded: 1. The general issue. 2. That he was under age at the time when the note was made. , The plaintiffs replied, that after he came of age he agreed to and confirmed the promise; to which he rejoined, that he did not so agree, on which also issue was joined. It appeared at the trial, which was had at the last November term in this county before Jackson, J., that Dutch and Green, while the latter was under age, had agreed to be partners, and as such had often dealt with the plaintiffs. The note in question was signed by Dutch, using the firm and style of the house of Dutch & Green, at a time when the latter was under age. In March, 1816, after Green arrived at full age, the plaintiffs applied to him for payment of the note ; when he acknowledged that it was due, and promised that, on his return to Eastport, where he resided, he would endeavor to procure the money and send it to the plaintiffs, saying at the same time that it was hard for him to pay it twice; he alleging, as it was understood, that the supposed partnership had been a long time before dissolved, and that Dutch had taken the whole stock, and agreed to pay all the debts of the company. The counsel for the defendant contended that the implied power of one partner to bind the other was void in this case, as Green was a minor at the time of making the note, and therefore could not empower any agent or attorney to bind him in any manner; that the note was therefore void as to him, and WHITNEY v. DUTCH. 89 not merely voidable, and so the supposed promise could not be confirmed or ratified by the subsequent promise or agreement, which was proved, as above mentioned. The judge, intending to reserve the question for the consideration of the whole Court, directed a verdict for the plaintiffs on both issues, which was re- turned accordingly. If the Court should be of opinion that the defendant Green was, under these circumstances, liable to the plaintiffs for the amount due on this note, the verdict was to stand, and judgment entered accordingly ; otherwise the verdict was to be set aside, and a verdict entered for the defendants. Leland, for the defendants, made two points: 1. That the de- fendant Green never ratified the supposed promise declared on. 2. That he never made the promise. 1. For the ratification of an infant’s promise after arriving at full age, an absolute, uncon- ditional, and unequivocal engagement is as much required by law as in the case of an original promise or undertaking by one of fullage. A payment of a part of the debt, when of age, has not the effect of a confirmation nor an acknowledgment that the debt is due.! In the case at bar, there was no promise to pay the debt ; but that, on his return to his home, he would endeavor to procure the money and send it to the plaintiffs. The whole of his declaration should be taken together, and ‘then it would amount only to an acknowledgment of the debt, and he would endeavor to obtain the money from Dutch, to whom it exclusively belonged to furnish it; and in case his endeavors should be suc- cessful, he would forward the money to the plaintiffs. 2. The defendant Green never legally made the promise declared on. The note was void from the first, as to him. Dutch signed it for himself and for Green, as having authority to bind him. But it was not in the power of Green to confer any such authority. The relation between copartners, as to this point, is the same as the relation between principal and agent. Every act of one, in the name of both, is by virtue of the power mutually given? But an infant cannot make an attorney or delegate such a power. Every act, therefore, done under such a supposed authority is merely — void, and is not capable of being made valid by any act of the in- fant after arriving at fullage.? Thurston, for the plaintiffs, argued 1 1 Comyns on Contracts, 168, 164; Martin v. Mayo et al., Ex’rs, 10 Mass. 140. 2 Watson’s Law of Partnership, 167. 3 Saunderson v. Marr, 1 H. Black. 75; Zouch v. Parsons, 3 Burr, 1804; 2 Lev. 144; 1 Salk. 279. 40 INFANCY. that the promise of Green, which was relied on as a ratification, was express and unequivocal. “TI will endeavor,” &c., is tanta- mount, in common parlance, to a promise to do the thing. In the case of Martin v. Mayo et al., the ratification was extremely like that in the case at bar, and was held sufficient. If the promise of Green was originally void, that of Dutch must have been so also, for it was joint. Copartners are joint-tenants, and there are several acts which an infant joint-tenant is bound to do by letter of attorney, notwithstanding his infancy. An infant copartner has the benefit_of all contracts made by the company. Here Green received his share of the goods for which this was given ; and he had, too, the privilege of avoiding the obligation, when of age, if he could persuade himself that it was just and right to do so. A letter of attorney by an infant is voidable, but not void.!| There is no small confusion in the books on the dis- tinction between such acts as are merely void and such as are voidable; but it seems most for the benefit of infants that their undertakings should in all cases be considered as voidable. Parker, C. J., delivered the opinion of the Court. The ques- tion presented to the Court in this case, and which has been argued, is, whether the issue on the part of the plaintiffs is main- tained by the evidence reported. The first objection taken by the defendant’s counsel is, that no express promise is proved after the coming of age of the defendant. By the authorities, a mere acknowledgment of the debt, such as would take a case out of the statute of limitations, is not a ratification of a contract made during minority. The distinction is undoubtedly well taken. The reason is, that a mere acknowledgment avoids the presump- tion of payment, which is created by the statute of limitations ; whereas the contract of an infant may always, except in certain cases sufficiently known, be voided by him by plea, whether he acknowledges the debt or not, and some positive act or declara- tion on his part is necessary to defeat his power of avoiding it. But the terms of ratification need not be such as to import a direct promise to pay. All that is necessary is, that he expressly agrees to ratify his contract; not by doubtful acts, such as pay- ment of a part of the money due, or the interest, but by words, oral or in writing, which import a recognition and a confirmation of his promise. In the present case, the defendant acknowledged ! 1 Rol. Abr. 780; 9 Vin. Abr. 884. WHITNEY ¥. DUTCH. 41 that the money was due, when called upon to pay the demand, and promised that he would endeavor to procure the money upon his return home, and send it to the plaintiff. This was sufficient to satisfy the jury that he assented to and ratified the original promise, for it would be a distortion of language to suppose that he meant only to endeavor to persuade Dutch to pay the money, and if he succeeded, that he, Green, would send it to the plaintiff: But the other point made in the defence is more difficult, and pre- sents a question new to us all. This is, that the note, being signed by Dutch for Green, was void in regard to Green, because he was not capable of communicating authority to Dutch to contract for him; and that, being void, it is not the subject of a subsequent ratification. No such question appears to have occurred in our courts, nor in those of England, or of the neighboring States. Partnerships have not been uncommon between adults and in- fants, and simple contracts, signed by one for both, undoubtedly have often been made. It is unfavorable to the principle con- tended for by the counsel for Green that no such case has been found ; for this silence of the books authorizes a presumption that _ no distinction has been recognized between acts of this kind done by the infant himself, and those done for him by another. We must, however, examine the principles by which the con- tracts of infants are governed, and see if, by any analogy to settled cases, the present defence can be maintained. It is ad- mitted, generally, that a contract made by an infant, although not for necessaries, is only voidable ; and that an express adoption of it, after he comes of age, will make it valid from its date. Nor does the law require that he shall be sued, as upon the new promise, but gives life and validity to the old one, after it is thus assented to. But it is urged that this doctrine applies only to those contracts which are made by the infant personally, and that the delegation of power by him to another of full age to act for him is utterly void, and that no contract made in virtue of such delegation can subsist, so as to be made good by subsequent agreement or ratification. If we confine ourselves to the letter of the authorities, it would seem that this doctrine is correct, for we find that, in the distinction made in the books between the void and voidable acts of an infant, a power of attorney is gen- erally selected, by way of example, as an act absolutely void, un- less it be made to enable the attorney to do some act for the 42 INFANCY. benefit of the infant, such as a power of attorney to receive seisin in order to complete his title to an estate. The books are not very clear upon this subject. All of them admit a distinction be- tween void and voidable acts, and yet disagree with respect to the acts to be classed under either of those heads. One result, however, in which they all appear to agree, is stated by Lord MANSFIELD, in the case of Zouch. Parsons, cited in the argument, viz., that, whenever the act done may be for the benefit of the infant,.it shall not be considered void; but that he shall have his election, when he comes of age, to affirm or avoid it; and this is the only clear and definite proposition which can be extracted from the authorities. The application of this principle is not, however, free from difficulty, for when a note or other simple contract is made by an infant himself, it may be made good by his assent, without any inquiry whether it was for his benefit or to his prejudice. For, if he had made a bad bargain in a pur- chase of goods, and given his promissory note for the price, and when he came of age had agreed to pay the note, he would be bound by his agreement, although he might have been ruined by the purchase. Perhaps it may be assumed, as a principle, that all simple contracts by an infant, which are not founded on an illegal consideration, are strictly not void, but only voidable, and may be made good by ratification. They remain a legal substratum for a future assent, until avoided by the infant; and if, instead of avoiding, he confirm them when he has a legal capacity to make a contract, they are in all respects like con- ‘tracts made by adults. With respect to contracts under seal, also, they are in legal force as contracts until they are avoided by plea. Whether they can in all cases, as it is clear they can in some, such as leases, be ratified, so as to prevent the operation of a plea of infancy, except by deed, need not now be decided. A deed of land, by an infant having the title, would undoubtedly convey a seisin, and the grantee would hold his title under it until the infant, or some one under him, should by entry or action avoid it. Perhaps it cannot be contended, against the current of authorities, that an act done by another for an infant, which act must necessarily be done by letter of attorney under seal; is not absolutely void, although no satisfactory reason can be assigned for such a position. But as this is a point of strict law, some- what incongruous with the general rules affecting the contracts WHITNEY v. DUTCH. 43 of infants, it is not necessary nor reasonable to draw inferences which may be repugnant to the principles of justice which ought to regulate contracts between man and man. The object of the law, in disabling infants from binding themselves, is to prevent their being imposed upon and injured by the crafty and design- ing. This object is in no degree frustrated by giving full opera- tion to their contracts, if, after having revised them at mature age, they shall voluntarily and deliberately ratify and confirm them. It is enough that they may shake off promises and other contracts made upon valuable consideration, if they see fit to do it, when called upon to perform them. To give them still another opportunity to retract, after they have been induced, by love of justice and a sense of reputation, to make valid what was before defective, will be to invite them to break their word and violate their engagements. If it be true that all simple contracts made by infants are only voidable, the inquiry in this case should be, whether the facts stated furnish an exception to this general rule ; or whether the contract now sued is in any sense different from a simple contract. The only ground for the supposed exception is, that the note declared on was not signed by the infant him- self, but by Dutch, claiming authority to sign his name as a co- partner. If the authority required a letter of attorney under seal, the exception would be supported by the authorities which have been alluded to. But it is well known that copartners may, and generally do, undertake to bind each other without any express authority whatever. Indeed, the authority to do so re- sults from the nature and legal qualities of copartnership. And without any such union of interests, one man may have author- ity to bind another by note or bill of exchange, by oral, or even by implied, authority. The case of a deed, therefore, is entirely out. of the question ; so that the defendant does not bring himself within the letter of the authorities, and certainly not within the reason on which they are founded. Then, upon prin- ciple, what difference can there be between the ratification of a contract made by the infant himself and one made by another acting under a parol authority from him? And why may not the ratification apply to the authority as well as to the contract made under it? It may be said that minors may be exposed if they may delegate power over their property or credit to another. But they will be as much exposed by the power to make such contracts themselves, and more, for the person delegated will 44 INFANCY. generally have more experience in business than the minor. And it is a sufficient security against the danger from both these sources that infants cannot be prejudiced ; for the contracts are in neither case binding, unless when arrived at legal competency they voluntarily and deliberately give effect to the contract so made. And in such case justice requires that they should be compelled to perform them. Upon these principles we are satis- fied with the verdict of the jury, and are confident that no prin- ciples of law or justice are opposed. by confirming it. As to what acts of an infant are abso- lutely void, so as to be incapable of ratification, the rule is thus stated in the learned note to Tucker v. Moreland, in 1 Am. Lead. Cases (4th ed.), p. 244: ‘*The numerous decisions which have been had in this country justify the settlement of the following definite rule, as one that is subject to no excep- tions. The only contract binding on an infant is the implied contract for neces- saries; the only act which he is under a legal incapacity to perform is the ap- pointment of an attorney; all. other acts and contracts, executed or execu- tory, are voidable or confirmable by him at his election. No reference is had at present to the acts of an infant execu- tor, or to transactions between himself and his guardian, which depend on special rules of law or policy.” See note to Zouch v. Parsons, Keane »v. Boycott, and Fetrow v. Wiseman (ante, p- 30). The reason for this rule is stated to ‘be, that ‘the constituting of an attor- ney by one whose acts are in their nature voidable is repugnant and im- possible, for it is imparting a right which the principal does not possess, that of doing valid acts. If the acts when done by the attorney remain voidable at the Judgment on the verdict. option of the infant, the power of attor- ney is not operative according to its terms; if they are binding upon the in- fant, then he has done, through the agency of another, what he could not have done directly, — binding acts. The fundamental principle of law in regard to infants requires that the in- fant should have the power of affirming such acts done by the attorney as he chooses, and avoiding others, at his op- tion; but this involves an immediate contradiction, for, to possess the right of availing himself of any of the acts, he must ratify the power of attorney, and, if he ratifies the power, all that was done under it is confirmed. If he affirms part of a transaction, he at once con- firms the power, and thereby, against his intention, affirms the whole transac- tion; ” and the conclusion is therefore drawn that ‘‘ such personal and discre- tionary legal capacity as an infant is vested with is therefore, in its nature, incapable of delegation.” 1Am. Lead. Cases (4th ed.), 247. Of this rule and the reasoning in sup- port of it, which do not seem to meet the entire approval of the learned edi- tor, it may be remarked that, while apparently logical, the fact that the rule is itself subject to exceptions ! detracts 1“ Powers of attorney are an exception to the general rule as to deeds ; anda power to receive seisin is an exception to that. The end of the privilege is ‘ to pro- tect infants.’ To that object, therefore, all the rules and their exceptions must be directed.” Lord Mansfield in Zouch v. Parsons (supra). See also Com. Dig. “Enfant,” B. 1; Bac. Abr. I. 8, Il. 6; Whittingham’s Case (infra, p. 83); 1 Story on Con- tracts, 4th ed. § 59, where the reason of the exception is stated to be “ because WHITNEY from the cogency of the reasoning in support of it, and renders the rule itself somewhat unsatisfactory; but, be that as it may, the rule subject to the exceptions mentioned in the note seems (at least as to authority granted under seal) tog well settled to be questioned, though it has not always received the unqualified approval of the courts. Thus, it has always been held that a warrant of attorney to confess judgment is absolutely void. See Saunderson v. Marr (ante), and the cases cited in the note thereto. So of a power of attor- ney to sell land. Lawrence’s Lessee v. McArter, 10 Ohio, 37; Pyle v. Cravens, 4 Litt. (Ky.) 17. But see Duvall »v. Graves, 7 Bush, 461, where a distinc- tion is taken between a mere naked power of attorney and a power coupled with an interest; and, in the case of a deed to a trustee executed by an infant in contemplation of marriage with a power to sell with her concurrence, it was held that neither the power of sale nor her consent by joining in a conveyance with the trustee after becoming of age, was void ; that such power was voidable only, and hence capable of confirmation by joining in said conveyance. So it seems that an infant cannot make delivery of a chattel sold by him, by an attorney, but must make manual delivery of it in person. Stafford v. it is for the interest of the infant, Agency, § 6, and cases cited, where it another person to do any act which is ize him to do an act which is to his prejudice.” See also Ewer v. Jones, 9 Q. B. 623. & Cov. § 18, p. 58, § 16, p. 51. and comes within the rule.” v. DUTCH. 45 Roof, 9 Cow. 626; Fonda v. Van Horne, 15 Wend. 681.2 See also Grace v. Hale, 2 Humph. 29; Hoyt v. Chapin, 6 Vt. 42; Bac. Abr. Inf. & Age, I. pl. 3; Com. Dig. ‘*Enfant,”’ C. 2, C. 3. On principle it would seem that the power of attorney of an infant stands on the same basis with any other act of the infant, and should be considered voidable, not void; ® and this opinion would seem to be warranted by the ex- ception admitted to exist (see ante, note (1), p. 44). At all events the doctrine should probably be confined to powers of attorney under seal, and not ex- tended any further. See Metc. on Cont. 42; Tyler on Inf. & Cov. § 18, p: 58; Kegan v. Cox, 116 Mass. 289;_ Whitney v. Dutch, 14 Mass. 457 (ante, p. 42), where the rule itself was criti- cised, and restricted to acts which ‘‘ must necessarily be done by letter of attor- ney under seal,” and where a note made by an adult copartner of an infant for a debt of the copartners, in the name of the firm, was held voidable and not void, and hence capable of ratification by the infant after arriving at majority ;* Hardy v. Waters, 38 Me. 450, where it was held that where an infant prom- isee of a negotiable note authorizes another minor by parol to transfer such note by indorsement for him, the trans- fer so made is voidable only and valid Story on is stated that “an infant may authorize for his benefit; but he cannot author- Mete. on Cont. 41; “Tyler on Inf. 1 See Com. Dig. “ Enfant,” C.2; Bac. Abr. I. 8; 1 Am. Lead. Cases (4th ed.), 247 ; Fetrow v. Wiseman, 40 Ind. 155; 9 Cow. 628; 7 Cow. 180; 8 Blackf. 848; 16 Wend. 635; 17 Wend. 181; 14 Ill. 159; 14 Mass. 461, 462; 16 M. & W. 780, 781; 18 Ind. 266; 6 Ind. 56. See notes to Sliver v. Shelback, and Mills v. Dennis (post). 2 See 1 Am. Lead. Cases (4th ed.), 248, where this doctrine is questioned. * 8 See Reeve’s Dom. Rel. * 250, note (1); Cheshire v. Barrett, 4 McCord, 244; Cummings v. Powell, 8 Tex. 88, 89; 1 Pars. on Cont. (5th ed.) 295; Tyler on Inf. & Cov. § 18, p. 58. , 4 In Ward v. Steamboat Little Red, 8 Mo. 358, it was held that an infant can become a party to a contract (not required to be made by deed) made without au- thority from him, by his subsequent adoption of it, as well as by his previous express consent, 46 until avoided.1_ To the same point see Hastings v. Dollarhide, 24 Cal. 195. It is also held that an assignment in trust for the benefit of creditors, where one of the assignors is an infant, is void as matter of law as against creditors, upon the ground that the infant having the right to avoid his contracts, an as- signment by him cannot as matter of law devote thé property assigned to the absolute and unconditional payment of his debts; and the general rule of law that contracts are voidable by the in- fant only does not apply to this case; nor does it make any difference that the infant afterwards, by his silence, rati- fied the assignment. Yates v. Lyon, 61 Barb. 205, INFANCY. But in Furlong v. Bartlett, 21 Pick. 401, where one of two partners made a general assignment in the name of the firm of allthe partnership property, in trust for the payment of the debts of the firm, and delivered the property to the assignee, and where the other partner, who was an infant, ratified the assign- ment, but on arriving at majority gave the assignee notice that he claimed the - entire stock and disaffirmed the assign- ment and ratification made by him while an infant, and then brought trespass for the alleged unlawful taking and aspor- tation, it was held (probably on the ground that the infant was a tenant in common with the defendant), that tres- pass would not lie. NIGHTINGALE v. WITHINGTON. (15 Mass. 272. Supreme Judicial Court of Massachusetts, October Term, 1818.) Indorsement of Infant voidable only. — A minor had received a promissory note in payment of his labors in the employment of the maker of the note, and had indorsed the same to a third person for a valuable consideration, the indorsee knowing the indorser to be under age; and afterwards the father of the minor received the amount of the maker in discharge of the note, both the father and ‘the maker knowing of the indorsement; the indorsee still recovered judgment on the note against the maker. ASSUMPSIT on a promissory note made by the defendant, pay- able to Robert Vose or order, and by him indorsed to the plain- tiff. The action was submitted to the determination of the Court, upon the following facts agreed by the parties. The defendant made the note declared on, in consideration of the labor and services of the said Robert Vose, who then was, and yet con- tinues, under the age of twenty-one years. He indorsed the 1 But in Semple v. Morrison, 7 Monroe (Ky.), 298, it was held that the immediate presence and concurrence of the infant in the act of her attorney in the assignment of a promissory note did not help the case, and that such assignment was void. NIGHTINGALE ¥. WITHINGTON. 47 same in blank for a valuable consideration, to one Jacob Bacon; and this latter, for a like consideration, transferred it by delivery to the plaintiff, who, as well as the said Bacon, then knew the said Vose to be under age. The defendant, since the said indorsement, and after notice of it, paid the account due by the note to Reuben Vose, father of the said Robert, taking from him the following receipt or dis- charge; viz., ‘‘ Received of A. M. Withington fifty-one dollars, in full payment for a note and interest given to my son Robert by him, Feb. 22, 1817. Reuben Vose. Milton, Feb. 28, 1818.” The parties agreed that judgment should be rendered upon the default of the defendant, or the nonsuit of the plaintiff, as the opinion of the Court should be upon the foregoing facts. Metcalf and Cushing, for the plaintiff. However the defence attempted in this case might avail Vose, the promisee, if the action were against him upon his indorse- ment, the present defendant has no right to such a defence.} Although a bill is drawn, indorsed, or accepted by a person incapable of binding himself, it is nevertheless valid against all other persons who are competent parties to the instrument.? The privilege of avoiding the contract being personal to the infant, the father’s interference in this case cannot affect the rights of the indorsee for a valuable consideration. The defence in this case is certainly not stronger than a want of consideration for the original promise, or fraud in obtaining the note, would be; yet these are no defence against an innocent indorsee.? T. Williams, for the defendant. The father of the infant had a right to the earnings of his son, and to prohibit the defendant from paying his wages to any one else. His receiving the wages was a disaffirmance of the authority of the son to receive them ; and the indorsement was a fraudulent attempt to charge the defendant twice for the same consideration. In fact, the disaf- firmance by the father had relation to the original promise, and made it void ab initio. Parker, C. J. That an infant may indorse a negotiable prom- issory note, or a bill of exchange made payable to him, so as to a 1 Taylor v. Crocker, 4 Esp. 187; Lawes’s Pleadings in Assumpsit, 57. , 2 Chitty on Bills, 21, cites Poth. pl. 29; 2 Atk. 181, 182. % Thurston v. McKown, 6 Mass. 428. 48 INFANCY. fcanisfen the property to an indorsee for a valuable consideration, seems to be well settled in the law merchant, and is noways repugnant to the principles of the common law. Such indorse- ment is not like one made by a feme covert; for a note payable to her becomes the property of her husband 31 and, further, her acts are absolutely void, whereas those of an infant are voidable only. It would be absurd to allow one who has made a promise to pay to one who is an infant, or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise; and it would impair the value of such contracts in the hands of infants, if they were unable to raise money on them as others may do. Whether an infant may avoid an indorsement so made and oblige the promisor to pay to him, is a question not arising in this case ; for there has been no coun- termand or revocation of the order to pay, which is implied in his indorsement. If an action should be brought against the infant, as indorser, for the default of payment by the promisor, without doubt he may avoid such action by a plea of infancy. But that is a per- sonal privilege which none but himself can set up, in avoidance of any contract made in his favor.? It is said, however, that the promise of which this note was the evidence was made in consideration of the earnings by the labor of the infant; and that those earnings accrued to his father, who, having received payment of the note after the indorsement, has intercepted the plaintiff’s right to recover. We must see what are the rights of a father over the earnings of his son, in order to determine the merits of this objection. Generally, the father, and, in case of his death, the mother, is entitled to the earnings of their minor children.? This right must be founded upon the obligation of the parents to maintain and support their children ; which obligation is compensated by a right to their services, or to the fruits of them if, by their per- mission, they are employed by other persons. But where the father has discharged himself of the obligation 1 See, however, this subject considered post. 2 Oliver et al. v. Houdlett, 18 Mass. 287; Boston Bank v. Chamberlin, 15 Mass. 220; Whitney v. Dutch, 14 Mass. 457; ante, p. 88. 3 Benson v. Remington, 2 Mass. 118. NIGHTINGALE v. WITHINGTON. 49 to support the child, or has obliged the child to support himself, there is no principle, but that of slavery, which will continue his right to receive the earnings of the child’s labor.? : Thus, if the father should refuse to support a son, should deny him a home, and force him to labor abroad for his own living, — or should give or sell him his time, as is sometimes done in the country (although this latter practice is certainly questionable as to any promise made in consideration of it), — the law will im- ply an emancipation of the son ; and, although it will not enable him to contract to his prejudice, it will give him the benefit of such contracts as are made with him for his services; and a pay- ment made to the son in such circumstances will be a good dis- charge of such contract.? In the case before us, the money sued for was due for the labor and service of Robert Vose, the minor. It does not appear that the services were contracted for by the father, or that he made any claim for the money due for them.’ But a negotiable promissory note was given to the son, who was then permitted, as far as can be discovered by the facts, to make the contract for himself, and to receive the payment. There was no prohibition by the father to make payment to the son; and it was not until after he had parted with the note for a val- uable consideration, — a fact known to the father, — that he received payment of the note; and even then it does not appear that he claimed the money as his right; but that the payment was altogether voluntary by the defendant, who had full notice of the indorsement. These circumstances warrant us in deciding that such payment shall not avail the defendant. Defendant defaulted. See next case and notes. 1 Benson v. Remington, 2 Mass. 118; Jenny v. Alden, 12 Mass. 875; Angel v. Mc- Lellan, 16 Mass. 28. 2 Benson v. Remington, 2 Mass. 118; 1 Black. Comm. 453. 3 Whiting v. Earle, 8 Pick. 201. 4 Bayley on Bills, Ed. 45, 136, 465, 5th ed.; Goodsell v. Myers, 3 Wend. 479; Dubose v. Wheddon, 4 M’Cord, 221. 50 INFANCY. Hout v. WARD CLARENCIEUX. \ (2 Strange, 937; 8. c. id. 850; 1 Barnard. K. B. 247, 277, 333; 2 id. 12, 173, 176.! Court of King’s Bench, Trinity Term, 1732.) Contract of Marriage voidable by Infant. Adult bound. — An infant may sue on a contract of marriage with a person of full age. Tue plaintiff declared that it was mutually agreed between the plaintiff and defendant, that they should marry at a future day, which is past, and that, in consideration of each other’s promises, each engaged to the other; notwithstanding which the defendant did not marry the plaintiff, but had married an- other, which she lays to her damage of 4,000/. The defendant, with leave of the Court, pleaded double; viz., non assumpsit, and that the plaintiff at the time of the promise was an infant of fifteen years of age. The plaintiff joins issue on the non assumpsit, and a verdict is found for her with 2,000/. damages. And as to the plea of infancy demurred. This cause was several times argued at the bar. 1. By Mr. Strange for the plaintiff, and Sergeant Chapple for the defendant, when the Court inclined strongly with the plaintiff, because, though the defendant would not have the same remedy against her by action for damages, yet they thought he might have some remedy, viz., by suit in the ecclesiastical Court to compel a per- formance, the plaintiff being of the age of consent;? and that would be a sufficient consideration. And therefore appointed an argument by civilians, to see what their law would determine in such a case. Upon the arguments of the civilians, no instance could be shown wherein they had compelled the performance of a minor’s contract. And they who argued for the defendant strongly in- sisted that, in the case of a contract per verba de futuro (as this was), there was no remedy, even against a person of full age, in the spiritual Court, but only an admonition. 1 See also 8 Bac. Abr. 674; 8 Tr. Atk. 306; Fitzgib. 175, 275, which see in Dig. Cas. B. R. 660. 2 This remedy is taken away by 26 Geo. II. c. 88, intituled an act for the better preventing of clandestine marriages. Sect. 18, n. to 2d ed. ; HOLT v, CLARENCIEUX. 51 And the only reason why they hold jurisdiction in the case of a contract per verba de presenti is, because that is looked upon amongst them to be ipsum matrimonium, and they only decree the formality of a solemnization in the face of the church. After their arguments, it was spoke to a fourth time by Mr. Reeve and Sergeant Lyre. And now this term the chief justice delivered the resolution of the Court. The objection in this case is, that, the plaintiff not inettiy bound equally with the defendant, this is nudum pactum, and the de- fendant cannot be charged in this action. Formerly it was made a doubt by my Lord Vaueuan, whether any action could be maintained on mutual promises to marry; but that is now a point not to be disputed.1 And as to the present case we should have had no difficulty in giving judg- ment for the plaintiff if we could have been satisfied by the arguments of the civilians, that, as the plaintiff was of the age of consent, any remedy, though not by way of action for damages, could be had against her. But, since they seem to have had no precedent in the case, we must consider it upon the foot of the common law. And upon that the single question is, whether this contract as against the plaintiff was absolutely void. And we are all of opinion that this contract is not void, but only voidable at the election of the infant, and as to the person of full age it absolutely binds. The contract of an infant is considered in law as different from the contracts of all other persons. In some cases his contract shall bind him; such is the contract of an infant for necessaries, and the law allows him to make this contract as necessary for his preservation ; and therefore in such case a single bill shall bind him, though a bond with a penalty shall not.2. 1 Lev. 87. Where the contract may be for the benefit of the infant, or to his prejudice, the law so far protects him as to give him an op- portunity to consider it when he comes of age, and it is good or voidable at. his election. Cro. Car. 502; 2 Roll. 24, 427; Hob. 69; 1 Brownl. 11; 1 Sid. 41; 1 Vent. 21; 1 Mod. 25; Sir W. Jones, 164, re 1 8 Mod. 511; Salk. 487; Carter, 236. . . 2 See, however, this subject considered (post), in notes to Peters v. Fleming. 52 INFANCY. But though the infant has this privilege, yet the party with whom he contracts has not; he is bound in all events. And as marriage is now looked upon to be an advantageous contract, and no distinction holds whether the party suing: be man or woman;! but the true distinction is whether it may be for the benefit of the infant; we think, that, though no express case upon the marriage contract can be cited, yet it falls within the general reason of the law with regard to infants’ contracts. And no dangerous consequence can follow from this determina- tion, because our opinion protects the infant, even more than if we rule the contract to be absolutely void. And as to persons of full age, it leaves: them where the law leaves them, which grants them no such protection against being drawn into incon- venient contracts. For these reasons we are all of opinion that the plaintiff ought to have her judgment upon the demurrer. When we come to consider what par- ticular acts of infants are not absolutely void, but voidable only, and hence capable of ratification on arriving at majority, the number of cases is very great, and the principal cases must serve as examples only. Bonds with a penalty are now con- sidered to be voidable only. See Mustard v. Wohlford’s Heirs, 15 Grat. 329, 337 (reported in full post), which was a case of a title-bond with a pen- alty, and in which it was, as we think, correctly stated that ‘‘the penalty of the bond is a mere matter of form, the 1 Salk. 24. substance of the contract being the con- dition on which may be maintained an action of covenant at law ora suit for specific performance in equity.”? The same point was also decided in the same way in Weaver v. Jones, 24 Ala. 420. See also Conroe v. Birdsall, 1 Johns. Cas. 127; 1 Am. Lead. Cas. (4th ed.) 253. The cases of Baylis v. Dineley, 3 Maule & Selw. 481, and Fisher v. Mow- bray, 8 East, 330, holding that the penal bond of an infant, conditioned for the payment of interest as well as principal, is void, and the older cases ? But it has been held that specific performance will not be decreed in favor of the assignee of « contract for the conveyance of land, where the vendee in such contract was an infant when the contract and the assignment of the same to complainant were executed (but who has since arrived at majority), upon a bill filed for that purpose within five months after the infant has arrived at majority, without proof of the title and equity of complainant as against the vendor, which includes ratification of both the original instrument and the assignment after reaching majority ; though, if rati- fication of the latter should be established, there would be little if any ground to dis- pute the obligation of the infant ta abide by the former; the vendor ought not to be required to convey to complainant so long as there is an outstanding option in the vendee to disaffirm the original contract or his assignment to the complainant. Car- rell v. Potter, 23 Mich. 877. The principle governing this case would seem to be somewhat at variance with the rule as to assignment of promissory notes and bills of exchange, which see stated post. HOLT v. CLARENCIEUX. holding bonds with penalties void, are now probably overruled. As to an in- fant’s liability for interest, see Bradley v. Pratt, 23 Vt. 386. So the sealed note of an infant is voidable only. Little v. Duncan, 9 Rich. Law, 55. So it is held that the recognizance of an infant is voidable and not void. Patchin v. Cromach, 13 Vt. 330. As to negotiable promissory notes executed by infants, it was formerly considered that they were void even though given for necessaries. See Swasey v. Adm’r of Vanderheyden, 10 Johns. 33; Bouchell v. Clary, 3 Bre- vard, 194; McMinn v. Richmond, 6 Yerg. 9, and cases cited. But this doctrine is now overruled, and they are uniformly held to be void- able only, and this whether negotiable or non-negotiable. Fetrow v. Wise- man, 40 Ind. 148 (reported at length, ante, p. 22); Goodsell v. Myers, 3 Wend. 479; Conn v. Coburn, 7 N. H. 368; Everson v. Carpenter, 17 Wend. 419; Wamsley v. Lindenberger, 2 Rand. (Va.) 478; Lawson v. Lovejoy, 8 Greenl. 405; Hesser v. Steiner, 5 Watts & Serg. 476; Jefford’s Adm’r v. Ringgold, 6 Ala. 544; Earle v, Reed, 10 Met. 389; Reed v. Batchelder, 1 Met. 559; Wright v. Steele, 2 N. H. 51; Orvis v. Kimball, 3 N. H. 314; Cheshire v. Barrett, 4 McCord (S. C.), 241; Bobo v. Hansell, 2 Bailey (S. C.), 114; Thompson v. Lay, 4 Pick. 48; Taft v. Sergeant, 18 Barb. N. Y. 320; Best v. Givens, 3 B. Monr. 723 Strain v. Wright, 7 Geo. 568; Boody v. Mc- Kenney, 23 Me. 523; Minock v. Short- ridge, 21 Mich. 814; Henry v. Root, 33 N.Y. 526; Aldrich v. Grimes, 10 N. H. 194. The same rule applies to bills of ex- change. Fant v. Cathcart, 8 Ala. 725; Hunt v. Massey, 5 Barn. & Adol. 902. So the assignment or indorsement of a promissory note or bill of exchange is voidable only. See, besides the prin- cipal case of Nightingale v. Withington (ante), Willis v. Twambley, 13 Mass. 58 204; Frazier v. Massey, 14 Ind, 882; Briggs v. McCabe, 27 Ind. 327; Hardy v. Waters, 38 Me. 450; Hastings v. Dollarhide, 24 Cal. 195, 208. See also Garner v. Cook, 30 Ind. 331. So of an assignment of wages. Mc- Carty v. Murray, 3 Gray, 578. And an indorsee of a promissory note, deriving title from an infant in- dorser, acquires a good and valid title to the note against every other party thereto except the infant. The infant may, at anytime before ratifying the transfer, intercept payment to the in- dorsee, or by giving notice to the maker of his avoidance, furnish him a valid defence against the indorsee. But, until the infant gives notice of his avoidance of his indorsement, the title of the indorsee is valid, and the maker cannot plead the infancy of the indorser as a defence in an action brought upon it. Hastings v. Dollarhide (supra). See also Taylor v. Croker, 4 Esp. 187; Jones v. Darch, 4 Price, 300; Grey ». Cooper, 3 Doug. 65; Drayton v. Dale, 2 B. & C. 298; Nightingale v. With- ington, Frazier v. Massey, and Hardy v. Waters (supra); 1 Pars. on Notes & Bills, p.70 m.; 2 id. p. 3, and the cases cited. So a lease by or to an infant is void- able by the infant. Zouch »v. Parsons (ante p. 3); Kelsey’s Case, Cro. Jac. 820; Holmes v. Blogg, 2 Moore, 552; s. c. 8 Taunt. 508; Griffith v. Schwen- derman, 27 Mo. 412; Baker v. Kennett, 54 Mo. 88. See also Irvine v. Irvine, 9 Wall. 617. So of an usurious contract entered into by an infant, which the infant may avoid, and recover the money lent upon such contract under the count for money had and received. Millard v. Hewlett, 19 Wend. 301. So a settlement of a disputed boun- dary between adjoining tracts, by a con- sentable line, is voidable only. Brown v. Caldwell, 10 Serg. & Rawle, 114. So a compromise of an action for slander is voidable. Ware v. Cart- ledge, 24 Ala. 622. 54 So of a compromise of an assault and battery upon the infant. Baker v. Lovett, 6 Mass. 78. So a compromise made by an infant- legatee, whereby he receives specific chattels in lieu of his legacy, does not bind him; but he is bound to account for the property so received. Tipton v. Tipton, 3 Jones’s Law, 552. So of a submission to arbitration, which is voidable by the infant even after award made. Knight v. Stone, W. Jo. 164; Jones v. Phenix Bank, 4 Seld. (8 N. Y.) 228; Barnaby v. Barn- aby, 1 Pick. 221.° But in Britton v. William’s Devi- sees, 6 Munf.’(Va.) 453, where, in an action of trespass on the case, an order of reference to arbitrators was made by consent after return of writ and before declaration, and an award was returned in favor of the plaintiffs, several of whom were minors, the Court say: ‘* Although infants are bound by judg- ments had under the superintendence and protection of the Court, yet where the case is referred to arbitrators, whereby they are deprived of that pro- tection, a submission by infants, even by rule of Court, ought not to be sanc- tioned. For, as awards are in the nature of judgments, and are to be final and conclusive, which cannot be where one party has a right to avoid them, it follows that submission by in- fants, although with adults, cannot be obligatory on either party. As there was, therefore, no valid submission in this case, there could be no award; and consequently the judgment is errone- ous, and must be reversed, with costs, as far back as the writ, and the cause sent to the rules for further proceedings.” So special contracts for labor and ser- vice entered into by minors are void- able. Clark v. Goddard, 39 Ala. 164; Harney v. Owen, 4 Blackf. 337; State v. Dimick, 12 N. H. 194 (a contract of enlistment into the United States Army); Vent v. Osgood, 19 Pick. INFANCY. 572, See Medbury v. Watrous, and Whitmarsh v. Hall, and notes (post). So a promise to marry made by an infant is a good consideration for a corresponding promise, and is voidable only as to the infant, though binding on the adult contracted with. Holt v. Ward, Clarencieux, 2 Str. 937 (ante) ; Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 7 Cow. 22; Hamilton v. Lomax, 26 Barb. 615; Pool v. Pratt, 1 Chip. (Vt.) 252; Cannon v. Alsbury, 1 A. K. Marsh. 76; Warwick v. Cooper, 5 Sneed, 659. But when the contract of marriage is actually consummated per verba in presenti, after the parties have arrived at the age of consent, it is of course binding upon both the infant and adult; itis then a status which public policy will not allow to be considered voidable. . So an account stated by an infant is not absolutely void, but voidable only ; and may therefore be ratified by him after he becomes of lawful age. Wil- liams v. Moor, 11 M. & W. 256. See also Oliver v. Woodroffe, 4 M. & W. 650. See also, as to the point that an account stated does not bind the infant, Hedgley v. Holt, 4 C. & P. 104, per Bailey; and that an action of assump- sit on an account stated does not lie against an infant, Trueman v. Hurst, 1 T. R. 40; even though the items are for necessaries, Bartlett v. Emery, 1 T. R. 42 n.; and an account stated by an infant is not evidence against him by way of admission after he arrives at majority, even to show that he had been supplied with clothes as necessa- ries to the amount and as stated in the bill. Ingledew v. Douglas, 2 Starkie, 36, per Lord Ellenborough. But in these cases the point as to whether such accounts stated were or were not capa- ble of ratification did not arise, and the defence of infancy, so far as can be determined by the reports, seems to have been interposed by plea, and the account stated thus avoided. 1 See note to Elliott v. Horn (post). BAINBRIDGE ¥. PICKERING. So an absolute gift of chattels by an infant is voidable by the infant or by his administrator. Person, Adm’r v. Chase, 37 Vt. 647. So the other contracts of an infant are in general voidable and not void; and this, whether executed or execu- tory. See Slocum v. Hooker, 18 Barb. (N. Y.) 536, which was an action to recover damages for the non-perform- ance of a special contract for carrying wheat; Thompson v. Hamilton, 12 Pick. 425, a contract of charter of a vessel by a minor; Walker v. Ellis, 12 Ill. 470, an agreement for the sale of real estate; Strain v. Wright, 7 Geo. 568, a contract for the sale of a negro; Bruce v. Warwick, 6 Taunt. 118; s. c. 2 Maule & Selw. 205, a trading con- tract of an infant; McCarty v. Murray, 3 Gray, 578, an assignment of wages; Kennedy v. Doyle, 10 Allen, 161; Flynn v. Powers, 54 Barb. 550; Dunton v. Brown, January Term, 1875, Sup. Ct. of Mich. (to appear in 30th Mich.), an agreement of co-partnership; Reeve’s Dom. Rel. 254. So the act of an infant in taking an appeal from the judgment of a justice BAINBRIDGE v. 55 of the peace is voidable. Robbins v. Cutter, 26 N. H. 173, But if an infant receives rents it is said that he cannot demand them again when of full age. Parker v. Elder, 11 Humph. 546, 2 Kent’s Com. 240. See also Overton v. Banister, 3 Hare, 506. And money belonging to an infant, and received from him by his brother, with directions to use it for the support of their parents, if necessary, and so used by the brother before any revoca- tion of the directions (the case being that of an executed agency), cannot be recovered by the infant upon his becom- ing of full age. Welch v. Welch, 103 Mass. 562. But, while an infant may in general avoid his contracts which are not for necessaries, yet the law will not allow him this privilege where the contract on the part of the adult is legally com- pulsory, as in the case of an innkeeper, who is bound to receive and entertain all applicants, whether adults or infants, who are apparently responsible and of good conduct. Watson v. Cross, 2 Duvall (Ky.), 147. PICKERING. (2 Wm. Black. 1325. Court of Common Pleas, Michaelmas Term, 1779.) Infant when not liable for Necessaries. — An infant who lives with and is prop- erly maintained by her parent cannot bind herself to a stranger for neces- saries. “Davy moved to discharge the defendant on a common appear- ance, being held to special for 307. Debt to a milliner for feath- ered caps and other ornamental apparel; and it being proved by a copy of the parish register that the defendant was now under twenty years of age, and the debt was of two years’ standing, she living all the time with her mother. 56 INFANCY. ‘ Grose showed for cause that the Court will not discharge her upon motion, but leave her to plead her infancy, as these things might be necessary for her state and situation in life, of which the jury are the proper judges. But by Goutp, Justice (absente Dr Grey, Chief Justice): If an infant lives with her parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of cloaths, or other real necessaries of life, I apprehend that the child cannot bind herself to a stranger even for what might otherwise be allowed as necessaries; for no man shall take upon him to dictate to a parent what cloathing the child shall wear, at what time they shall be purchased, or of whom. All that must be left to the discretion of the father or mother. And as there is not here any pretence but that the child was decently provided for by the mother, I think we should give no countenance to such persons as inveigle young women into extravagance under the pretext of furnishing them with necessaries, without the previous consent of the parent. BLAcKstonE and Nares, Justices, of the same opinion. Rule absolute. See next case and notes. PrETers v. FLEMING. (6 Meeson & Welsby, 42. Court of Exchequer, Hilary Term, 1840.) Rule as to what constitute Necessaries. — To a declaration for goods sold, &c., the defendant pleaded his infancy, to which the plaintiff replied that the goods were necessaries suitable to the degree, estate, and condition of the defend- ant: Held, that the term necessaries included such things as were useful and suitable to the state and condition in life of the party, and not merely such as are required for bare subsistence. It is a question for the jury, whether the articles are such as a reasonable person, of the age and station of the infant, would require for real use. THIs was an action of debt for goods sold and delivered, work and labor done, and materials found and provided, and for money found to be due upon an account stated. The defendant pleaded : 1. Nunquam indebitatus. 2. Infancy. The plaintiff took issue on the first plea, and to the second replied, ‘that the goods, &c., PETERS v. FLEMING. 57 at the time of the sale and delivery thereof, were necessaries suit- able to the then degree, estate, and condition of the defendant.” The rejoinder traversed that allegation, and thereupon issue was joined. The cause was tried before Vaucan, J., at the last summer assizes for the county of Cambridge, when it appeared that the action was brought to recover the amount of the follow- ing articles : — Loos a. Afine goldring . . . . 1 8 0 A ring, engraved crest, &c. 0 18 +O A short gold watch-chain 2 2 0 A pair of pins . 0 18 0 A ring 1 6 0 A ring St vie yor 1 5 0 A ring repaired, new stone . 0 38 6 ¢ 8 0 6 The defendant was the eldest son of a gentleman of fortune, and a member of parliament, and, at the time when the goods were supplied and the work was done, was an undergraduate of the university of Cambridge, and resided in the university. The learned judge left it to the jury to say whether, in their opinion, the articles in question were necessaries or not, and they found that they were, upon which the learned judge directed them to find a verdict forthe plaintiff for the full amount claimed, but gave the defendant leave to move to enter a non- suit. Biggs Andrews having, in last term, obtained a rule ac- cordingly, or for a new trial, Kelly and Byles now showed cause. The case was properly left to the jury, and they have come to a correct conclusion in finding that the articles in question were necessaries for a person in the defendant’s station in life. If things of such a nature are necessaries in any case, they certainly must be so .for the son and heir of a gentleman of fortune and a member of parliament. The jury are the proper judges whether the quality or nature of the ornaments supplied are suitable to the defendant’s rank in life. Hands v. Slaney, 8 T. R. 578,-is an authority to show that the term “ necessaries” is not limited to the bare necessaries of life, but extends to such things as are necessary according to the station and degree of the party; and it was there held, that a minor, a captain in the army, was liable 58 INFANCY. for a livery ordered for his servant, because the defendant was placed in a situation of life which required such an attendant. Lord Kenyon there says: ‘* The general rule is clear, that in- fants are liable for necessaries according to their degree and station in life.” In the present case the defendant was a person receiving a university education, and for whose position in society a watch-chain and a seal would be proper and useful articles ; the one to enable him to pull out his watch, the other to seal his letters to his father or his friends. The other articles were also proper for a person in his station of life. But it was a question for the jury whether these articles, or any of them, were proper and necessary for the defendant, and if any of them was necessary, there cannot be a nonsuit; and the amount is too trifling for the Court to grant a new trial, on the ground of the verdict being against the weight of evidence. Sir William Follett, Biggs Andrews, and Gunning, contra. In this case no question ought to have been left to the jury at all, as the defendant was not competent to enter into a con- tract for articles of this nature, which was mere ornamental articles of jewelry. An infant is incapable of contracting for that which is not requisite for him as a matter of necessity, such as ‘‘ meat, drink, apparel, necessary physic, and such other neces- saries, and likewise for his necessary teaching.” Co. Litt. 172 a. In Manby v. Scott, 2 Sid. 113, it is said: ‘* Our law allows many persons to make contracts in cases of necessity who otherwise would be disabled from doing’ so; and, although generally the contracts of infants are void, yet, in cases of necessity, their con- tract shall bind them.” So, in Brooke v. Gally, 2 Atk. 34, Lord HArpWICKE says: ‘‘ The law lays infants under a disability of con- tracting debts, except for bare necessaries, and even this exemp- tion is merely to prevent them from perishing.” According to those cases, an infant cannot bind himself but for such things as are strictly necessary for him. [Parke,B. A watch may, in some cases, be a thing necessary. In Burghart v. Hall, 4 M. & W. 727, it was decided that you must lay out of the question the allowance of a suitable maintenance to the infant. The only question is, whether the things themselves are necessaries suit- able to his station and degree or not. It will be very difficult to maintain that the judge can withdraw the question from the jury, whether such an article as a watch is not necessary, and if PETERS v, FLEMING. 59 a watch be necessary, a chain must be so also, to draw it out of his pocket, for 4 boy of any age.] If articles of this description are to be considered as necessaries, where is the line to be drawn ? [ALDERSoN, B. The term “necessaries,” as applied to dress, may mean those things without which the party would lose caste in society. The quantity of the things furnished may be import- ant; as, for instance, if twenty breastpins had been supplied, they could scarcely be necessary.] What came within the term “necessaries ’’ was, according to the old cases, a question for the judges ; and in Mackerell v..Bachelor, Goldsborough, 168, Cro. Eliz. 583, cited by Lord ELLENBoRouGH in Maddox ». Miller, 1 M. & Sel. 738, the judges decided that some of the articles were not necessaries for the defendant, and that the action would not lie for them ; although certainly in Maddox v. Miller it was held to be not so purely and exclusively a question of law as that some question should not be left to the jury ; but there the supply was of ordinary clothes. Here none of these articles are strictly necessaries, and there could be no difficulty in laying down a rule that an infant cannot bind himself for such things as these. If an infant wants articles of such a nature, he should be made to pay for them at the time of the purchase. The rule to be col- lected from the books is, that an infant can bind himself only for such things as are “ necessaries,” which, according to the old law, were such things as a person could not do without. [Parxg, B. No; it always had been the law from the first that an infant might bind himself for what was suitable to his state and degree. That was shown in the argument in Burghart v. Hall. The law has always been the same in this respect.] But these articles were not even useful ; they were mere ornaments, and could not be necessary, in the proper sense of the word, for any one. Parke, B. It seems to me that in this case the learned judge could not have been properly called upon by the defendant to nonsuit the plaintiff, and that there was some evidence to go to the jury in support of the allegation in the replication, that the goods were, at the time of the sale and delivery thereof, “* neces- saries suitable to the then degree, estate, and condition of the defendant.” The decision of this question does not depend in any degree upon any allowance the defendant may have had from his father, and which he may have misapplied ; that must be con- sidered as settled by the case of Burghart v. Hall; but the ques- 60 INFANCY. tion is, whether the articles furnished are properly such articles as are necessary and suitable to the station, degree, and condition of the defendant. It is perfectly clear that, from the earliest time down to the present, the word “necessaries” was not confined, in its strict sense, to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, station, and degree in life in which he is; and there- fore we must not take the word “ necessaries,” in its unqualified sense, but with the qualification above pointed out. Then the question in this case is, whether there was any evidence to go to the jury that any of these articles were of that description. I think there are two that might fall under that description; viz., the breastpins and the watch-chain. The former might be a matter either of necessity or of ornament; the usefulness of the other might depend on this, whether the watch was necessary. If it was, then the chain might become necessary itself. Now it is impossible for us to say that a judge could withdraw it from the consideration of the jury, whether a watch was not a necessary thing for a young man at college, and of the age of eighteen or nineteen, to have. That being so, it is equally, as far as the chain is concerned, a question for the jury ; there was, therefore, evidence to go to the jury. The true rule I take to be this, — that all such articles as are purely ornamental are not necessary, and are to be rejected because they cannot be requisite for any one ; and for such matters, therefore, an infant cannot be made respon- sible. But, if they are not strictly of this description, then the ~ question arises, whether they were bought for the necessary use of the party, in order to support himself properly in the degree, state, and station of life in which he moved; if they were, for such articles the infant may be responsible. That must be a question for the jury, and it is for them to decide, upon due con- sideration, whether the articles were of such a description or not ; and here the jury have found that they were. It is impossible to say that there was not some evidence to go to the jury in the present case ; that being so, it becomes unnecessary for us to inquire as to the other matters charged for. Auperson, B. If it were laid down strictly that an infant can make no contract except for articles that would be necessary to keep him from famishing, that would be a rule which would press very hardly indeed in many cases. But that is not the rule; PETERS v. FLEMING. 61 for a party may make contracts for necessary clothes, and for necessary education. It has been ruled that an infant may be liable for schooling, and if it become a question how much school- ing is necessary, then you must inquire what situation in life he is required to fill. A knowledge of the learned languages may be necessary for one, a mere knowledge of reading and writing may be sufficient for another. The real question would be, whether or not what he has contracted for be such as a person in his station and rank in life would require. The articles must be for real use, and such as would be necessary and suitable to the degree and station in life of the infant: The question in these cases is this, — Were the articles bought for mere ornament? if so, they cannot be necessaries for any one. If, however, they are bought for real use, then they may be necessaries, provided they are suitable to the infant’s age, state, and degree. The jury then must say, whether they are such as reasonable persons of the age and station of the infant would require for real use. If so, they will be necessaries, for which an infant will be liable. Guryey, B. I think my brother Parxe has laid down the prin- ciple most correctly. If the articles are merely ornamental, the party cannot recover. What may be ornamental, and what nec- essary, is a question for the jury. In this case the jury have found that these articles were necessary; as to two of them it appears to us the jury were right; and it is admitted that it is not worth while to discuss the precise amount. Routre, B. The difficulty in this case arises from the vague and uncertain nature of the word necessary. I think the expla- nation given by my brother ALDERSON is the best that can be given, viz., that that is necessary which is bond fide purchased for use, and not merely for ornament, and which consorts with the condition and rank in life in which the party moves. One of these articles, at all events, and I think two, clearly might come under that description, and therefore the matter was properly left to the jury. Rule discharged No express promise is necessary in his implied contract for necessaries, yet order to render an infant liable for it seems well settled that he is not necessaries. Gay v. Ballou, 4 Wend. bound by his contract to pay a sum 403. And though an infant is liable on certain therefor, as by an account 1 The rule laid down in this case was approved in Wharton v. Mackenzie, 5 Q. B. 611; Ryder v. Wombwell, L. R. 4 Exch. 38, 41; Jordan v. Coffield, 70 N. C. 114. 62 stated, a promissory note, bond, &e., given for necessaries (unless ratified after becoming of age), but only for what they are reasonably worth. 1 Am. Lead. Cas. (4th ed.) 244; Bing. on Inf. (Bennett’s ed.) 86, note, (1); 1 Story on Conts. (4th ed.) §§ 80, 81; Tyler on Inf. p. 57 ; Beeler v. Young, 1 Bibb, 519; Oliver ». Woodroffe, 4 M. & W. 650; M’Crillis v. How, 3 N. H. 348; Bouchell v. Clary, 3 Brev. 194; Rainwater v. Durham, 2 Nott & McCord, 524; Hussey v. Jewett, 9 Mass. 100 ; Swasey v. Adm'r of Van- derheyden, 10 John. 33; Fenton v. White, 1 South. 100; Bartlett v. Em- ery, 1 Term, 42, note. But it has been held in some cases that where the instrument is of such a character that the consideration can be inquired into, it is valid. See Reeve’s Dom. Rel. * 230 e¢ seg.; Dubose v. Whedden, 4 McCord, 221; Aaron v. Harley, 6 Rich. (S. C.) 26; Haine v. Tarrant, 2 Hill (8. C.), 400; Stone v. Dennison, 13 Pick. 6 ; Bradley v. Pratt, 23 Vt. 385. And that in such case a recovery may be had to the extent of the reasonable worth of the necessaries constituting the consideration, but no further. See Earle v. Reed, 10 Met. 387; Guthrie v. Morris, 22 Ark, 411, and the cases next above cited. See also Parish v. Stone, 14 Pick. 198; Harrington v. Stratton, 22 Pick. 516. But see 1 Am. Lead. Cas. (4th ed.) 244, where this rule is condemned as ‘against good precedents and princi- ple.” The articles for which an infant is sought to be rendered liable as neces- saries, must not only come within the general class of necessaries in law, but must also be in fact necessary to the infant under the particular cireum- stances in which he is placed. Reeve’s Dom. Rel. * 227. Thus an over-supply of the infant’s wants, though the articles might in other respects be ranked as necessaries, gives a demand against him only for so much as was actually needed. Johnson v. Lines, 6 W. & S.80. And INFANCY. itis the tradesman’s duty to acquaint himself with the infant’s circumstances and necessities, as well as to take notice of supplies by other tradesmen ; he credits him at his peril. Ford v. Foth- ergill, 1 Esp. 211 ; Peake, 229; Johnson v. Lines, 6 W. & S. 80; Kline v. L’Amou- reux, 2 Paige, Ch. 419; Cook v. Dea- ton, 3C. & P.114; Perrin v. Wilson, 10 Mo. 451; Davis v. Caldwell, 12 Cush..513; Wharton v. Mackenzie, 5 Q. B. 606; Mortara v. Hall, 6 Sim. 466 ; Steedman v. Rose, 1 Car. & M. 422; Rivers v. Gregg, 5 Rich. Eq. 274. But the necessity for inquiry by a tradesman before giving credit to an infant for necessaries, may be dispensed with by the conduct of the parties. Dalton v. Gib, 7 Scott, 117; 5 Bing. N. C. 198; 1 Arn. 463; 3 Jur. 48. Thus where an infant living in a style of some pretension, purchased of a tradesman, in the course of four months, silks to the amount of 35/., some of which were delivered in presence of her mother, and some sent to a fash- ionable botel, where the infant and her mother lived, it was held, that the case was taken out of the ordinary rule, and that the infant was liable for the amount, notwithstanding the tradesman omitted to make any inquries of the mother whether or not the articles were neces- sary for the infant. ‘‘ The presence of the mother when the daughter purchased the articles, and her omission to reject those which were delivered at the hotel, rendered inquiry superfluous.” Dalton v. Gib (supra); and in Brayshaw v. Eaton, 5 Bing. N. C. 231; 8s. c. 7 Scott, 183 ; 1 Arn. 466 ; 3 Jur. 222, which was an action on a tailor’s bill, to the plea of infancy in which, the plaintiff replied necessaries, and where the point was directly passed upon, it was held that inquiry by the plaintiff as to defendant’s circumstances is not a condition prece- dent to the right to recover. ‘TINDAL, C.J. ‘*The issue for the jury in this case was whether the articles supplied were necessary for the defendant or not. ... That it is prudent in a tradesman PETERS v. to make such inquiry is clear; but he is not bound to make it by any inflexible rule of law. The question in these cases is whether the articles furnished were necessary for the defendant; and that question is independent of any in- quiry the plaintiff could make. After every inquiry that could be made, it might still turn out that the goods were necessary. The proposition, therefore, in the books as to the necessity of in- quiry, must be understood with refer- ence to the prudence of such a step, and as of a duty of imperfect obliga- tion.” Bosanquet, J. ‘It is said, indeed, in several of the cases, that the plaintiff ought to make inquiries; but the consequence is not that he should be nonsuited if he fails todo so, but that he trusts the defendant at his peril.” See also Eames v. Sweetser, 101 Mass. 80. If the wants of the infant be supplied by his parent, guardian, or by any other person, he cannot render himself liable for articles which would otherwise be necessaries. See Gay v. Ballou, 4 Wend. 403; Rivers v. Gregg, 5 Rich. Eq. 274; Kraker v. Byrom, 13 Rich. L. 163; Kline v. L’Amoureux, 2 Paige, Ch. 419; Wailing v. Toll, 9 John. 141; Guthrie v. Murphy, 4 Watts, 80; An- gel v. McClellan, 16 Mass. 31; Pool v. Pratt, 1 Chip. 253; Beeler v. Young, 1 Bibb, 521; Conolly ». Hull, 3 Me- Cord, 6; Cook v. Deaton, 3 C. & P. 114; Bainbridge v. Pickering, 2 W. Black. 1325 (ante); McKanna v. Merry, 61 Ill. 180; Nicholson v. Wilborn, 13 Geo. 475; Elrod v. Myers, 2 Head, 33; Perrin v. Wilson, 10 Mo. 451; Davis v. Cald- well, 12 Cush. 513 ; Brooker v. Scott, 11M. & W. 67; Burghart v. Angerstein, 6 C. & P. 690; Story v. Perry, 4 C. & P. 526; Steedman v. Rose, 1 Car. & M. 422; Bing on Inf. (Bennett’s ed.) 86, note (1) and cases there cited. See also Locke v. Smith, 41 N. H. 352; Atchison v. Bruff, 50 Barb. 381; Fos- ter v. Redgrave, L. R. 4 Exch. 35, note. And, where the minor resides with his parents, it will, in the absence of proof FLEMING. 63 to the contrary, be presumed that he is properly supplied with necessaries. Con- olly v. Hull, 8 McCord, 6; Jones »v. Colvin, 1 McMull. 14; Perrin v. Wil- son, 10 Mo. 451; Freeman ». Bridger, 4 Jones’s Law, 4. See also Brooker v. Scott, 11 M. & W. 67. Infaney being shown, the burden of proof is with the plaintiff to show that the articles sued for werenecessary for the infant. Thrall v. Wright, 3&8 Vt. 494; Nicholson v. Wilborn, 13 Geo. 475; and so whether in the class of necessaries or not. Thrall v. Wright (supra). But where necessary clothing, in every way suitable to her condition in life and social posi- tion, are furnished to an infant at her request, with the consent of her mother, with whom she resides, and with the expectation and understanding on her part and on the part of her mother, that they were to be paid for out of her funds, or her portion of her deceased father’s estate, the law binds the infant to pay for such necessaries. Atchison v. Bruff, 50 Barb. 381. See also Run- del v. Keeler, 7 Watts, 237; Watson v. Hensel, id. 3844. But it is said that the decision of this question (as to what are ‘‘ necessaries suitable to the then degree, state, or condition of the defendant”) ‘* does not depend in any degree upon any al- lowance the defendant may have had from his father, and which he may have misapplied.” And a charge that, if the infant had an income sufficient to pro- vide him with necessaries suitable to his condition for ready money, he could not contract even for necessaries upon credit, is erroneous. Burghart v. Hall, 4M. & W. 727, approved in Peters v. Fleming, 6 M. & W. 46 (ante). But see Kline v. L'Amoureux, 2 Paige, Ch. 419. See also Ryder v. Wombwell, L. R. 38 Exch. 90 (s. c. L. RB. 4 Exch. 42), where evi- dence to prove that, when the articles (*‘solitaires”) were furnished, the in- fant was already sufficiently provided with articles of a similar description, was rejected, as it was not proposed to show that the plaintiff had knowledge of 64 the fact; Bramwell, B., dissenting. But see Foster v. Redgrave, Q. B. Feb. 9, 1867; L. R. 4 Exch. 35 note; Bainbridge v. Pickering, 2 W. Black. 1325 (ante); Brayshaw v. Eaton, 7 Scott, 183. The rule, however, seems to be more cor- rectly stated in Rivers v. Gregg, 5 Rich. Eq. 274, to be that ‘‘ when it is shown that an infant is supplied with necessa- ries by his parent or guardian, or with funds amply sufficient to procure them, the presumption of law and of reason must be that he does not stand in need of credit to obtain what is necessary for him. And, after this prima facie showing, he who alleges that, notwith- standing this, the infant was in a state of destitution, must take upon himself the burden of proving the allegation. If he does this in a satisfactory manner, his claim should be allowed.” ‘« The conclusion is, that an infant who is furnished with necessaries, or the means in cash of procuring them, by his parent or guardian, or from any other source, is primd facie not liable for necessaries supplied by a stranger or tradesman on credit; and that the par- ty who seeks to evade the operation of the rule, and bring bis claim under an exception, must prove the des- titution and necessities of the infant.” See also Nicholson v. Wilborn, 13 Geo. 475; also State v. Cook, 12 Ired. 67; Hussey v. Rountree, Busb. 110: ‘* Whether the articles are of those classes for which an infant shall be bound to pay is matter of law, to be judged of by the Court ;” and this ques- tion is first to be settled. Beeler v. Young, 1 Bibb, 521; Glover ». Ott, 1 McCord, 572; Bent v. Manning, 10 Vt. 230; Tupper v. Cadwell, 12 Met. 563; Grace v. Hale, 2 Humph. 29; Stan- ton v. Willson, 3 Day, 57; Maddox »v. Miller, 1 M. & S. 788; McKanna v. Merry, 61 Tl. 178; Jordan v, Coffield, 70 N.C. 116; Merriam v, Cunningham, 11 Cush. 40; Bing. on Inf. 86, note (1); Story on Sales, § 35. See also 19 Pick, 572. But this preliminary question being INFANCY. determined, ‘‘if they fall under those general descriptions, then whether they were actually necessary and suitable to the condition and estate of the infant, and of reasonable prices, must regular- ly be left to the jury as matter of fact.” Bing. on Inf. 86 note (1), 87; Story on Sales, § 35; Beeler v. Young, 1 Bibb, 521; Bent v. Manning, 10 Vt. 230; Grace v. Hall, 2 Humph. 29; Me- Kanna v. Merry, 61 Ill. 178; Jordan v. Coffield, 70 N. C. 110; Merriam v. Cun- ningham, 11 Cush. 40; Harrison v. Fane, 1 Man. & G. 550; Stanton ». Willson, 3 Day, 57; Maddox ». Miller, 1M. & S. 738; Ryder v. Wombwell, L. R. 3 Exch. 90 and cases there cited; s.c.L. R. 4 Exch. 32. See also Glov- er v. Ott,1 McCord, 572; Davis v. Cald- well, 12 Cush. 513; Swift v. Bennett, 10 Cush. 436; Mohney v. Evans, 51 Penn. St. 80; Eames v. Sweetser, 101 Mass. 80; Hall v. Weir, 1 Allen, 261; Bonney v. Reardin, 6 Bush, 34; Rundel v. Keeler, 7 Watts, 237; Hare and Wal- lace’s note to Peters v. Fleming, 6 M. & W.*49; Benj. on Sales (1st Am. ed.), § 24 note (g). This proposition is of course subject to the qualification that the question whether or not there is any evidence fairly tending to show that they were actually necessary is for the Court, and, if there is no such evidence, the case may be withdrawn from the jury ; but the weight of the evidence, if any there is, is for the jury. The verdict is also subject to be set aside, as being contrary to the weight of ‘the evidence. See Ryder v. Wombwell, L. R. 4 Exch. 32 and cases cited, where it is stated to be settled ‘‘that the question for the judge (subject of course to review) is as stated by Maule, J., in Jewell v. Parr, 13 C. B. 916, not whether there is liter- ally no evidence, but whether there is none that ought reasonably to satisty the jury that the fact sought to be proved, is established. ‘It is not enough to say that there was some evidence. . . . A scintilla of evidence clearly would not justify the judge in leaving the case to the jury. There must be evidence on PETERS v, FLEMING. which they might reasonably and prop- erly conclude that there was negligence,’ the fact in that case to be established.” See 1 Chitty on Cont. (11 Am. ed.) p. 195. In Johnson v. Lines, 6 W. & S. 80, it is said that ‘‘ what are necessa- ries is a question mixed of fact and law.” ‘*To them (the jury) doubtless belongs the question of extravagance ; but where the supply has been so gross- ly profuse as to shock the sense, it is the business of the judge to say so as matter of law, and charge that there can be no recovery for more than was absolutely necessary.” See also Brook- er v. Scott, 11 M. & W. 67; Wharton v. McKenzie, 5 Q. B. 606; Ryder »v. Wombwell, L. R. 3 Exch. 90 (s.c. L. R. 4 Exch. 32). In Ryder ». Wombwell, which was an action for the price of a pair of jewelled solitaires, worth 251., and a silver goblet worth 151. 15s., which the plaintiff knew when he sup- plied it, was intended by the defendant as a present, the question as to what are not necessaries in law, was some- what extensively considered, the Court being divided as to what was the proper rule. Bramwe tt, B., said: ‘‘ But I may fairly be asked, What is the rule ? It seems to me to be this: There are some things which cannot be necessa- ries. — The ear-rings” (for a male), ‘‘ the spectacles” (for a blind person), ‘‘ in the cases put, the wild animal, and all things which are useless except for amusement, or where the utility is the subordi- nate consideration, and the ornament or amusement the principal. On the other hand, there are some things certainly necessaries; bread, meat, vegetables, 65 water. There are also things which may or may not be, and which give rise to questions for a jury. For instance, an infant orders an expensive coat; but it appears his trade or calling is of that nature that such a coat is necessary for his health; or it is shown that a coat at half the price would not last half the time. Or if he has ordered a broad- cloth coat, and it is said he should have contented himself with fustian, evidence may be given as to his position, and as to how such people dress in that class, in that neighborhood, and then the ques- tion is for a jury. I am far from say- ing that the above is at once accurate and exhaustive, but I forbear from the further attempt to make it so. Not to be more tedious, I think, therefore, that, in this case, the jury should have been told to find for the defendant.” Ketty, C. B. ‘‘ This case involves the very important question, whether, under any circumstances, it is compe- tent to the judge to determine as mat- ter of law, whether particular articles are or are not to be deemed necessaries suitable to the estate and condition of the infant ; and whether, if, in any case, the judge may so determine, his juris- diction is not limited to those cases in which it is clear and obvious that the articles in question not merely are not, but cannot be, necessaries to any one of any rank or fortune or condition what- ever?! We cannot separate the term ‘necessaries’ from its legal adjunct ‘suitable to the estate and condition of the infant; and as the effect of these lat- ter words involves a number of consid- erations, such as the age of the infant, his income, and his rank, his profession 1 In Hare & Wallace’s note to Peters v. Fleming, 6 M. & W. 49, it is said that “the rule appears to be that if the articles are of such a nature that they cannot be neces- saries to any one, or cannot be necessaries to any one in the infant’s degree and position, they are to be rejected by the Court; but if the articles are of a kind to be suitable under certain circumstances to one in the infant’s situation, the question of necessaries is for the jury.” Citing Brooker v. Scott, 11 M. & W. 67 and note; Wharton v. Mackenzie, 5 Q. B. 606; Harrison v. Fane, 1 M. & Gr. 550; Glover v. Ott, 1 McCord, 572; Bouchell v. Clary, 3 Brev. 194; Rainwater v. Durham, 2N. & McC. 524; Chapple v. Cooper, 18 M. & W. 252. 66 or calling, if he belongs to any profes- sion, or has any duties or occupations in life, it seems contrary to all legal principles to hold that these are all matters of law, and not within the prov- ince of a jury to decide. .. . It should seem, therefore, that, as in all cases these several considerations arise upon the question what are or are not neces- saries, it is impossible to determine such a question upon any fixed and defin- ite legal principle, but that each case should be left to a jury with the obser- vations, and, if necessary, such admo- nitions and cautions on the part of the judge, as the particular circumstances proved may render just and appropriate. It is true that in ancient times the judges have taken upon themselves to decide this question as matter of law, and even upon demurrer; but in the altered state and condition of society, which has now existed for many generations, we find but two cases in which it has been judicially held that this question should be withdrawn from ajury. In Brooker v. Scott, 11 M. & W. 67, in an action for 71. Os. 5d. for dinners and desserts furnished to an undergraduate at Cam- bridge, whose meals were supplied by the college in which it was his duty to dine, the Court of Exchequer directed a nonsuit to be entered; and in Bryant v. Richardson (ante), note p. 93 (L.R. 3 Exch.), the same Court determined as matter of law that cigars were not nec- essaries, and an opinion was expressed by more than one judge, that my brother BRAMWELL, who tried the cause, ought to have nonsuited the plaintiff. It will be observed, however, that in both these cases it was obvious that the articles supplied could not be necessa- ries.’? The learned Chief Baron then enters upon a review of the cases hold- ing the question of necessaries to be for a jury, and, while expressing his in- dividual opinion ‘‘ that a judge is in no case entitled to withdraw the question of necessaries from a jury,” says that he does not feel at liberty to overrule the cases of Brooker v. Scott and Bry- INFANCY. ant v. Richardson, and concurs with the opinion of the majority of the Court, that the verdict should be reduced by the sum of fifteen guineas, the price of the goblet. CuanneL and Picort, Barons, were also of the opinion that it was not competent to withdraw the ques- tion in the case from the jury, but that there should be a new trial because the verdict for the plaintiff was against the weight of the evidence. PrcotrtT, Baron, said: ‘I agree in thinking that the Lord Chief Baron was right in leaving the question to the jury. At the same time, as TrnpaL, Chief Justice, observed in Harrison v. Fane, 1M. & G. 550, 558, although it is for the jury to say, as a question of fact, whether particular articles are necessaries, their finding is to be ‘subject to the control of the Court, as to the manner in which they have exercised their discretion.’ It seems an anomaly to say that a judge may not withdraw the matter entirely from the jury, and yet that the Court may review their finding; still, on the authorities, such seems to be the law.’’ On appeal to the Exchequer Cham- ber (L. R. 4 Exch. 32), where the judgment of the Court below was re- versed, and a nonsuit entered, the ques- tion was again extensively considered, Wires, J., delivering the opinion of the Court, and it was held unanimously in accordance with the rule stated (ante, p. 64) ‘‘ that there was not in this case evidence on which the jury could rea- sonably find that it was necessary for maintaining the defendant in the station of life in which he moved, either that he should give goblets to his friends, or wear shirt buttons composed of dia- monds and rubies, costing 122. 10s. apiece. We must first observe that the question, in such cases, is not whether the expenditure is one which an infant in the defendant's position could not properly incur. There is no doubt that an infant may buy jewelry or plate, if he has the money to pay, and pays for it. But the question is, whether it is so i PETERS v. necessary for the purpose of maintaining himself in his station that he should have these articles, as to bring them within the exception under which an infant may pledge his credit for them as necessaries, The Lord Chief Baron, in his judgment, questions whether, under any circumstances, it is compe- tent to the judge to determine as a matter of law, whether particular ar- ticles are or are not to be deemed nec- essaries suitable to the estate and con- dition of an infant, and whether, if in any case the judge may so determine, his jurisdiction is not limited to those cases in which it is clear and obvious that the articles in question not merely are not, but cannot be, necessaries to any one, of any rank, or fortune, or condition whatever? This is an impor- tant principle, which, if correct, fully supports the judgment below; but we cannot assent to it. We quite agree that the judges are not to determine facts; and, therefore, where evidence is given as to any facts, the jury must determine whether they believe itor not. But the judges do know, as much as juries, what is the usual and normal state of things, and, conse- quently, whether any particular article is of such a description as that it may be necessary under such usual state of things. If a state of things exists (as it well may), so new, or so excep- tional, that the judges do not know of it, that may be proved as a fact, and then it will be for the jury, under a proper direction, to decide the case. Butit seems to us, that if we were to say, that in every case the jury are to be at liberty to find any thing to bea necessary, on the ground that there may be some usage of society, not proved in evi- dence and not known to the Court, but which, it is suggested, that the jury may know, we should, in effect, say that the question for the jury was whether it was shabby in the defendant to plead infancy. We think the judges must determine whether the case is such as to cast on the plaintiff the onus of prov- FLEMING. 67 ing that the articles are within the ex- ception, and then whether there is any sufficient evidence to satisfy the onus. In the judgment of Bramwe zt, B., in the Court below, many instances are put, well illustrating the necessity of such a rule. It is enough for the decision of this case, if we hold that such articles as are here described are not prima facie necessary for maintain- ing a young man in any station of life, and that the burden lay on the plaintiff to give evidence of something peculiar, making them necessaries in this special case, and that he has given no evidence at all to that effect.’ The learned judge then reviews and cites approv- ingly, as sustaining his position, the cases of Peters v. Fleming (ante), Wharton v. Mackenzie, 5 Q. B. 606; and Brooker v. Scott, 11 M. & W. 67, which see. See also Benj. on Sales (1 Am. ed.) § 24; Davis v. Caldwell, 12 Cush. 512, where Chief Justice SHaw, in commenting on Peters v. Fleming and Wharton v. Mackenzie, said: ‘*In these cases it is held, and we think this is the true view of the law on this ‘subject, that whether the articles sued for were necessaries or not is a question of fact to be submitted to a jury, unless in a very clear case, when a judge would be warranted in directing a jury au- thoritatively that some articles, as, for instance, diamonds, or race-horses, cannot be necessaries for any minor.’’ See Benj. on Sales (1 Am. ed.), § 24, note (g). Upon the whole, the cor- rect rule is deemed to be that the ques- tion, whether or not the article comes within the legal class of necessaries, is (by the great weight of American au- thority, at least), one addressed to the Court; and whether actually necessary and suitable to the condition and estate of the infant, &c., or not, is a question for the jury, as above stated; but, in applying this rule, the Court, it would seem, ought not to withdraw the case from the consideration of the jury, ex- cépt in a very clear ease, but to leave it with the jury, under proper instructions 68 as to the nature of necessaries. The rule as to what constitutes necessaries is deemed to be correctly stated in Pe- ters v. Fleming, though doubtless in this country many would differ from the learned Court in its application to the facts of that case. See also 1 Pars. on Conts. (5th ed.) 296. Articles coming clearly within the legal class of necessaries, are food, drink, washing, clothing, physic, and instruction; and ‘‘ an infant may bind himself to pay for his necessary meat, drinke, apparell, necessary physicke, and such other necessaries, and likewise for his good teaching, or instuction, where- by he may profit himselfe afterwards.” Co. Litt. 172 a; Reeve’s Dom. Rel. * 227; Bing. on Inf. 87. But these are not the only articles that may be con- sidered necessaries. It is well observed in the learned note to Bing. on Inf. (p. 86, note (1) ), that ‘the term ‘necessaries’ is relative, and governed by the infant’s real, and not ostensible rank, situation, and degree. It is not confined to bare support and subsistence, but has received a some- what liberal construction, according to the infant’s fortune, estate, and occu- pation. The articles must be bond fide purchased for use, and not for mere or- nament’’ (or luxury); ‘‘ they need not he such as a person cannot do without, but should be suitable to the infant’s condition and circumstances.” Story on Sales, §§ 34, 35; Benj. on Sales (1st Am. ed.), § 23, and cases cited; Pe- ters v. Fleming, 6 M. & W. 46; Chap- ple v. Cooper, 13 M. & W. 257. See also Wharton v. Mackenzie, 5 Q. B. 606; Ryder v. Wombwell, L. R. 3 Exch. 90, where the subject is extensively dis- cussed. In McKanna v. Merry, 61 Ill. 179, the rule is stated to be that ‘ the articles furnished or money advanced must be actually necessary in the par- ticular case, for use, not mere orna- ment; for substantial good, not mere pleasure; and must belong to the class which the law generally pronounces necessary for infants.” INFANCY. As to what particular articles are or are not necessaries, the cases are too numerous to be here enumerated, and only a few instances will be given; those wishing to pursue the subject far- ther are referred to the authorities cited at the end of this note, and in the cases hereinbefore and therein referred to. Dinners, confectionery, or fruit, sup- plied to an infant undergraduate in the university, are prima facie not neces- saries. Brooker v. Scott, 11M. & W. 67; Wharton v. Mackenzie, 5 Q. B. 606; and as to the articles furnished for the entertainments given by de- fendant to his acquaintances, referred to in the case last named, DENMaN, C. J., said that they could not possi- bly be necessaries. Articles of mere luxury cannot be necessaries suitable to the condition of any infant; but ar- ticles of utility, though luxurious and expensive, may be. Ryder v. Womb- well, L. R. 3 Exch. 90; Chapple v. Cooper, 13 M. & W. 258. See also Brooker v. Scott, Wharton v. Macken- zie (supra). Nor are balls and sere- nades necessaries. Carter, 216. Rent of a building, for carrying on a trade or manual occupation, seems not to be a necessary, Lowe v. Griffith, 1 Scott, 458; s. c. 1 Hodges, 30: nor goods to carry on his trade with, Mason »v. Wright, 13 Met. 306; Stone v. Withi- pool, Latch, 21; Whittingham v. Hill, Cro. Jac. 494; Whyhall v. Champion, 2 Stra. 1083; Turberville v. Whitehouse, 1C. & P. 94: but he is liable for so much of such goods as were consumed as necessaries in his own family, Turber- ville v. Whitehouse (supra) :.nor are suits of satin and velvet with gold lace, Mackerell v. Bachelor, Cro. Eliz. 583: nor racing jackets, Burghart v. Anger- stein, 6 C. & P. 690: nora silver gob- let for presentation to a friend, Ryder v. Wombwell, L. R. 3 Exch. 90: nor cockades for the soldiers of an infant offi- cer, Hands v. Slaney, 8 Term, 578: nor a chronometer for a lieutenant under twenty-one, in the royal navy, Berolles v. Ramsay, Holt, 77: neither, in gen- PETERS v. FLEMING. eral, are horses, Smithpeters v. Griffin, 10 B. Mon. 259; Beeler ». Young, 1 Bibb, 515; Harrison v. Fane, 1 Man. & G. 550: even though the infant is a farmer, Rainwater v. Durham, 2 Nott & McCord, 524; Grace v. Hale, 2 Humph. 27. But see Aaron v. Harley, 6 Rich. 26. But, perhaps, this may be considered a question for a jury. See Mohney v. Evans, 51 Penn. St. 80. Nor is the board of horses, the principal use of which was in the infant’s business of hackman, though occasionally used to carry his family out to ride. Merriam v. Cunningham, 11 Cush. 40. Though where horseback exercise is prescribed by a physician, itis a necessary. Hart v. Prater, 1 Jur. 623. Nor is a far- rier’s bill for work looking after the in- fant’s horses a necessary. Clowes »v. Brooke, 2 Stra. 1100; s.c. Andrew, 277: nor are saddles, bridles, whips, liquors, fiddles, fiddle-strings, powder, and pistols, &c., Beeler v. Young, 1 Bibb, 519; Glover v. Ott, 1 McCord 572; McKanna v. Merry, 61 Ill. 179: nor are cigars and tobacco, under or- dinary circumstances and in the absence of evidence of special circumstances rendering them necessary, medicinally or otherwise, Bryant v. Richardson, 12 Jur. n. 5. 300; 14 W. R. 401; 14 L. T. n. s. 24 Exch.; L. R. 3 Exch. 93, note: nor a stanhope, Charters v. Boyntun, 7 C. & P. 52: nor coach hire, Hedgely v. Holt, 4C. & P. 104: nor, in general, is money lent to the minor a necessary :? Earle v. Peale, 1 Salk. 387; Beeler v. Young, 1 Bibb, 519; Smith v. Gibson, Peake, Add. Cas, 52; Darby v. Boucher, 2 Salk. 279; Probart v. Knouth, 2 Esp. 472, note; McKanna v. Merry, 61 Ill. 177: even though raised by mortgage to pay off a prior mortgage on property inherited by the infant, Magee v. Welsh, 18 Cal. 155; see also West v. Gregg, 1 Grant's Cas. 53; Bicknell v. Bicknell, 111 Mass. 265: nor though paid at 69 the request of the infant to relieve him from a draft for military duty, Dor- rell v. Hastings, 28 Ind. 478. Though if lent to procure a release from ar- rest for necessaries, or if the infant is charged in execution, it is held to be recoverable; but to entitle the plaintiff so to recover, he must show that the money was advanced under such cir- cumstances. Clarke v. Leslie, 5 Esp. 28. So an infant is liable for money paid at his request, to satisfy a debt which he had contracted for necessaries. Randall v. Sweet, 1 Denio, 460. And though money lent to purchase neces- saries is, in general, not recoverable, yet, if in fact laid out by the lender for the necessaries, the infant is liable. See Earle v. Peale, 1 Salk. 387; Smith v. Oliphant, 2 Sandf. (N. Y. Sup’r Ct.) 806; Swift v. Bennett, 10 Cush. 436; Randall v. Sweet, 1 Denio, 460; Pro- bart v. Knouth, 2 Esp. 472, note; Brad- ley v. Pratt, 23 Vt. 386; Darby v. Boucher, 1 Salk. 279; Ellis v. Ellis, 1 Ld. Raym. 344. But ‘if one lends money to an infant to pay a debt for necessaries, and, in consequence thereof, the infant does pay the debt, here, although he may not be liable at law, he must nevertheless be so in equity, because in this case the lender of the money stands in the place of the person paid; viz., the creditor for necessaries, and shall recover in equity, as the other should have done at law.”? Marlow v. Pitfield, 1 P. Wms. 558; Harris v. Lee, id. 482; Watson v. Cross, 2 Du- vall (Ky.), 149; Beeler v. Young, 1 Bibb, 521; Hickman v. Hall, 5 Litt. 342; Walker v. Simpson, 7 W. &S. 88: and the claim of such lender is within the trust of land devised for the pay- ment of debts, Marlow v. Pitfield, and Harris v. Lee (supra). And if the infant give his note for necessaries, and a surety signs with him and subse- quently pays the note for the infant, he may recover the money so paid from 1 But in Bent v. Manning, 10 Vt. 230, quere, per RupriExp, J., whether money might not under some circumstances be a necessary to a minor. 70 the infant. Haine v. Tarrant, 2 Hill (S. C.), 400; Conn v. Coburn, 7 N. H. 868. Nor is labor on articles for the customers of the infant, who carries on a trade, a necessary, Dilk v. Keighley, 2 Esp. 480: nor timber furnished the in- fant to enable him to build a dwelling on his land, Freeman v. Bridges, 4 Jones’s Law, 1: nor the expense of repairs on his dwelling-house, though necessary to prevent immediate and serious injury to the house, Tupper v. Cadwell, 12 Met. 559. See also West v. Gregg, 1 Grant’s Cas. 53; Hassard v. Rowe, 11 Barb. 22: nor, in general, counsel fees and expenditures in a lawsuit, Phelps v. Worcester, 11 N. H. 51. See also Thrall v. Wright, 38 Vt. 494, where it is said that though a lawsuit might be a necessary, yet primé facie it is not; the circumstances of each case must govern. But in Munson v. Wash- band, 31 Conn. 303, where a female in- fant was seduced and got with child, under promise of marriage, the seducer afterwards refusing to marry her, and she was left in a state of destitution and suffering, and, in these circumstances, a suit was brought for her which was afterwards settled by the marriage of the parties, and, after the marriage, the attorney sued the husband and wife for his fees, and the Court charged the jury that, though.as a general rule such ser- vices were not necessaries, yet if the services were absolutely requisite for her personal relief, protection, and sup- port, she could contract therefor, and INFANCY. defendants were liable; it was held, that the charge was correct. The case of an infant abandoned by its parents was put by the Court on the same foot- ing, as to necessaries, as a married woman abandoned by her husband, the standing and situation of the parties themselves being substantially the same. As between the infant and his guardian, acting in good faith upon competent ad- vice, counsel fees, &c., may be allowed in the settlement of his account. Smith v. Bean, 8 N. H. 15. Neither is the contract for the insurance of the infant’s property against loss or damage by fire a necessary. N.H.M. F. Ins. Co. v. Noyes, 32 N. H. 350, where the true test is said to be, that necessaries con- cern the person and not the estate. But a settlement which affords a pro- vision to an infant, who, on her mar- riage, has no other certain provision, is a necessary, and she, sued jointly with her husband, is liable for the solicitor fees, as for a, debt contracted by her for necessaries before marriage. Helps v. Clayton, 17 C. B. n. s. 553; 10 Jur. N. 8. 1184; 34 L. J. C. P. 1; 13 W. R. 161; 11 L. F. Nn. s. 476. The following have been held to be necessaries: Necessaries for the infant’s wife and children are necessaries for him. See Turner v. Trisby, 1 Stra. 168; Turberville v. Whitehouse, 1C. & P. 94; s. c. 12 Price, 692; Abel ». Warren, 4 Vt. 152; Beeler v. Young, 1 Bibb, 520; Bing. on Inf. * 87; Chap- ple v. Cooper, 13 M. & W. 252:! 1 This case is of considerable interest, on account of its discussion of the question of what are necessaries, and is accordingly given in full: — Debt for the work and labor of the plaintiff as an undertaker, bestowed by him in and about the funeral of a certain person then lately deceased, upon the retainer and at the request of the defendant; with counts for goods sold, money paid, and on an account stated. Pleas first, never indebted; second, infancy. Replication to the latter plea, that the work, labor, and materials, and other necessary things, were be- stowed and used by the plaintiff in and about the funeral of the defendant’s husband, and were necessaries suitable to the degree and condition of the defendant. Re- joinder, that the work, labor, &c., were not necessaries suited to the degree and con- dition of the defendant. Issue thereon. At the trial before Gurnuy, B., at the Middlesex Sittings after last Easter Term, it appeared that the action was brought by the plaintiff, who is an undertaker, PETERS v. FLEMING. 71 board, lodging, clothing, food, medi- Cain, 8 Jones’s L. 111; Bradley v. cine, and education. See Hyman v. Pratt, 23 Vt. 378; Glover v. Ott, 1 Mc- to recover from the defendant, a widow under the age of twenty-one years, the sum of 29/. 1s. 6d., the expenses of the funeral of her late husband, which was ordered by her. The defendant and her husband lived in lodgings, at 10s. a week, and the latter, who had failed in business, died without leaving any property. It was con- tended for the defendant, that the funeral expenses of her husband could not be considered necessaries for her. The learned judge reserved the point, and directed a verdict for the plaintiff, leaving to the jury only the amount of damages. The. jury found a verdict for 10/., and the defendant had leave to move to enter a verdict for her on the second issue. Crowder having obtained a rule nisi accordingly, Byles, Serjt., and Gray showed cause in Trinity Term (June 10). The burial of a de- ceased husband, who has left no executor and no property, is a necessary, so as to render his infant widow liable for the expenses of it. The word “necessaries ” is not confined to necessaries for the person of the infant himself, but may extend to necessary things provided for other members of his family. And as a widow must, in point of moral decency and propriety, remain with the dead body of her husband until its interment, the disposition of it is « necessary for her, more even than food or clothing. In Turner v. Trisby, 1 Stra. 168, it was ruled by Prarr, C. J., that “necessaries for an infant’s wife are necessaries for him.” So, in Hand v. Slaney, 8 T. R. 578, necessaries for the livery servant of an officer in the army were held to be necessaries for him. In Bacon’s Maxims, p. 67 (ed. 1639), the noble author, illustrating the maxim, “Persona conjuncta equiparatur interesse proprio,” says: “So, if aman under the years of twenty-one contract for the nursing of his lawful child, this contract is good, and shall not be avoided by infancy, no more than if he had con- tracted for his own aliments or erudition.” [AtpERson, B. Is the dead body of the husband a persona conjuncta with the wife? During his lifetime she was liable for nothing, therefore no part of her liability can arise until death has separated her from the persona conjuncta]. The widow may be under a physical incapacity, from illness, of leaving the house or the room in which he died; he may have died of a contagious fever, rendering his dead body highly pestilential; under such circum- stances, the removal of that which, if it remain unburied, may be the certain cause of. disease and death, is surely necessary for her, as much as meat or drink. In the present case, the widow had, from poverty, no other place to go to; she was, besides, according to the laws of decency and morality, under an obligation to remain until the funeral: may she not, under such circumstances, pledge her credit for the funeral expenses? Surely she could not be justified in leaving the dead body with nobody to attend it, or in removing it into the highway and leaving it there. It is true that in Co. Litt. 172 a, itis said that ‘an infant may bind himself to pay for his neces- sary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching, and instruction whereby he may profit himself afterwards.” But the matters there mentioned are only stated as instances. The passage on which Lord Coxe is commenting is Littleton’s 259th section, the words of which are that “if before such age (twenty-one years) any deed or feoff- ment, grant, release, confirmation, obligation, or other writing, be made by any of them,” &c., “all serve for nothing, and may be avoided.” On which Lord Coxe says: “Here by this, &c., is implied some exceptions out of the generality, as an in- fant may bind himself,” &c. Heis not professing to include all the exceptions. In Coates v. Wilson, 5 Esp. 152, regimentals furnished to an infant who was a member of a volunteer corps were held by Lord ExtensorovueH to be necessaries for him. 72 INFANCY. Cord, 572; Peters v. Fleming, 6 M. & Squier ». Hydliff, 9 Mich. 274; Wil- W. 48; Stone v. Dennison, 13 Pick.6; helm v. Hardman, 13 Md. 144, And it In Peters v. Fleming, 6 M. & W. 42, Rotrz, B., says: “The difficulty arises from the vague and uncertain nature of the word ‘necessary.’ I think the explanation given by my brother ALpERsON is the best that can be given; viz., that that is necessary which is bond fide purchased for use and not for ornament, and which consorts with the condition and rank in life in which the party moves.” And ALpERsON, B., in the course of the argument in the same case says: “ The term ‘necessaries,’ as applied to dress, may mean those things without which the party would lose caste in society ;”? and he lays down the true test as being, whether the articles were obtained for real use, being also suitable to the condition and degree of the infant. [Atpgrson, B. Those observations begin with the hypothesis that some clothes, some food, or some teaching is necessary. You begin by assuming that the class of things are necessaries. That is the difficulty here.] The term * necessaries,’ really means things which the infant bond fide has need of or occa- sion for. [AtpERson, B. Would not that include a contract for trading?] No, because the infant may obtain his livelihood by serving another. But an infant widow may properly contract for the funeral of her husband according to his degree ; if there be assets, she will recover the expenses back from the representative when appointed; if there be none, she is equally bound to see the body decently buried. The parish cannot be applied to unless the husband was in the work-house: Reg. v. Stewart, 12 Ad. & E. 773; 4 P. & D. 864. There Lord Denman, C. J., says: ‘It should seem that the individual under whose roof a poor person dies, is bound to carry the body, decently covered, to the place of burial. He cannot keep the body unburied, nor do any thing which prevents Christian burial.” Crowper and Barstow, contra. To hold this claim to be necessaries for the defendant would be carrying the liability of an infant far beyond any of the authori- ties, and would establish a new principle altogether. The cases referred to, on the other side, of the supply of necessaries for a man’s wife or children or servant, are not disputed. But the rule applies only to cases of a personal necessity or benefit; it being in each case a question only of degree. Where a man is bound by law to pro- vide for his wife or child, that which is furnished to them is considered in law as furnished to himself. In those cases there is both the contracting capacity and the liability ; but here there was no contracting capacity in the wife during her husband’s lifetime. But, though she could not be liable for necessaries during his life, it is said some sort of responsibility — which is not defined — arises on his death. The incon- venience of the body’s remaining unburied would obviously be the same to a mere stranger occupying the room; is he therefore to be liable? Then special circum- stances are suggested, which, it is enough to say, do not exist in this case. The. case, however, appears to be mainly rested on the supposed moral obligation of the wife to remain with the body and see it decently buried. Thatis not an argu- ment which can be applied to such a question as this. It would be equally moral and proper in the case of an infant son. So the obligation of a son to pay his father’s debts is a strong moral obligation, yet no legal responsibility attaches to him. But how can such an obligation be thrown upon an insolvent widow to bind herself to pay for sucha matter? A thing is not a necessary for an infant merely because it is neces- sary that it should be done. The dictum in Reg. v. Stewart, even if it can be sup- ported in law, cannot apply, unless it can be shown that the interest in the apartment would pass to the widow on the husband’s death; but the term would vest in the representatives if there were any, or if not in the ordinary. In all the cases on this PETERS v. FLEMING. 73 is held that entertainment furnished by not knowing that the latter is acting an innkeeper to an infant as a guest, contrary to the wishes of his guardian, subject the matter of the contract concerned the personal benefit of the. infant, and there is no case in which it appears that there was any primary liability in any other person. Cur. adv. vult. The judgment of the Court was now delivered by Auperson, B. We took time to consider this case, which, in the course of the last term was argued before my brothers Gurney and Roxre and myself. The declaration was in the ordinary form for work and labor and materials found. To this the defendant pleaded infancy, and the replication stated that the goods were necessaries. At the trial it appeared that the plaintiff, being an undertaker, had, by the defendant’s order, conducted the funeral of her husband. The jury, under my brother Gurney’s direction, found a verdict for the plaintiff, damages 101., being the reasonable amount of such expenses. On the motion to enter a verdict for the defend- ant, the various authorities have been brought before us. My brother Byxzs, in his argument, ingeniously suggested a variety of cases in which such expenses as these might become necessaries from the peculiar situation of the infant, as if she were sick and had only one apartment in which the body lay, and so the removal of the offence therefrom arising might be as much a necessary to her as medicine for her sickness. But it is manifest that such cases would be determined on their special circumstances, and it is a sufficient answer to this argument to say that no such special circumstances exist here. This question, therefore, must depend on the gen- eral principles by which the validity of an infant’s contracts are to be governed. Now it seems clear that an infant can contract so as to bind himself in those cases where it is necessary for him to have the things for which he contracts ; or where the contract is, at the time he makes it, plainly and unequivocally for his benefit. It is with the former class that we are concerned. Things necessary are those without which an individual cannot reasonably exist; in the first place, food, raiment, lodg- ing, and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body, instructions in art or trade, or intellectual, moral, and religious information, may be a necessary also. Again, as man lives in society, the assistance and attendance of others may be a necessary to his well-being. Hence attendance may be the subject of an infant’s contract. Then the classes being established, the subject-matter and extent of the contract may vary according to the state and condition of the infant himself. His clothes may be fine or coarse according to his rank ; his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted, and the extent of his probable means when of age. So, again, the nature and extent of the attendance will depend on his position in society ; and 2 servant in livery may be allowed to a rich infant, because such attendance is commonly appropriated to per- sons in his’ rank of life. But, in all these cases, it must first be made out that the class itself is one in which the things furnished are essential to the existence and rea- sonable advantage and comfort of the infant contractor. Thus, articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. So contracts for charitable assistance to others, though highly to be praised, cannot be allowed to be binding, because they do not relate to his own personal ad- vantage. In all cases there must be personal advantage from the contract derived to the infant himself. It is manifest, we think, that this principle alone would not be sufficient to decide the present case. For it would be difficult to say that there is any personal advantage necessarily derived to an infant from the mere burial of a deceased person. But there is another consideration which arises out of the circumstances of 74 is necessary, and the price recoverable on that ground. Watson v. Cross, 2 Duvall (Ky.), 147. A good common- school education is a necessary, Mid- dlebury Collegev. Chandler, 16 Vt. 683: though a regular collegiate education for one in ordinary circumstances is not, Middlebury College v. Chandler (su- pra); see also Peters v. Fleming (supra): neither is instruétion in singing and dancing, 1 Sid. 446: nor religious instruction, St. John’s Parish v. Bronson, 4 !Conn. 75 (where a hus- INFANCY. band was held not liable for the rent of a church pew, hired and occupied by his wife without his assent). So suitable clothing is a necessary, Mackerell »v. Bachelor, Cro. Eliz. 583: so regimen- tals for a volunteer, and livery for an infant captain’s servant, Hands v. Slaney, 8 Term, 578; Coates v. Wilson, 5 Esp. 152: so a bridal outfit and a chamber set, furnished to a female in- fant just before her marriage, Jordan v. Coffield, 70 N. C. 110. See also Sams v. Stockton, 14 B. Mon. 232. this case, which may, we think, materially affect the defendant’s liability. This is the case of an infant widow, and the burial that of her husband, who has left no property to be administered. Now the law permits an infant to make a valid con- tract of marriage, and all necessaries furnished to those with whom he becomes one person, by or through the contract of marriage, are, in point of law, necessaries to the infant himself. Thus, a contract for necessaries to an infant’s wife and lawful chil- dren is used by Lord Bacon as one of the illustrations of the maxim, “ persona con- juncta equiparatur interesse proprio,” Bacon’s Law Maxims, p. 86. “ Ifa man,” says Lord Bacon, “ under the years of twenty-one, contract for the nursing of his lawful child, this contract is good, and shall not be avoided by infancy, no more than if he had contracted for his own aliments or education.” Now there are many authorities which lay it down that decent Christian burial is a part of man’s own rights ; and we think it is no great extension of the rule to say that it may be classed as a personal advantage and reasonably necessary to him. His property, if he leaves any, is liable to be appropriated by his administrator to the performance of this proper ceremonial. If, then, this be so, the decent Christian burial of his wife and lawful children, who are-the persone: conjuncte with him, is also a personal advantage aud reasonably neces- sary to him ; and then the rule of the law applies, that he may make a binding con- tract for it. This seems to us to be a proper and legitimate consequence from the proposition that the law allows an infant to make a valid contract of marriage. If this be correct, then an infant husband or parent may contract for the burial of his wife or lawful children; and then the question arises whether an infant widow is in a similar situation. It may be said that she is not, because during the coverture she is incapable of contracting, and after the death of the husband the relation of marriage has ceased. But we think this is notso. In the case of the husband, the contract will be made after the death of the wife or child, and so after the relation which gives validity to the contract is at an end to some purpose. But if the husband can con- tract for this, it is because a contract for the burial of those who are persone conjuncte with him, by reason of the marriage, is as « contract for his own personal benefit ; and, if that be so, we do not see why the contract for the burial of the husband should not be the same as a contract by the widow for her own personal benefit. Her covert- ure is at an end, and so she may contract, and her infancy is, for the above reasons, on defence, if the contract be for her personal benefit. It may be observed that, as the ground of our decision arises out of the infant’s previous contract of marriage, it will not follow from it that an infant child, or more distant relation, would be respon- sible upon a contract for the burial of his parent relative. For these reasons we think this rule must be discharged. ‘ Rule discharged. ELLIOTT v. HORN. As there is no inflexible, absolute rule as to what constitutes necessaries (what is necessary for one, though prima facie coming within the class necessaries, being unnecessary for another, or for the same one under different circum- stances, and what is prima facie un- necessary being, under some different circumstances, necessary), the above cases must serve only as examples to be consulted and applied to elucidate the varying cases as they arise, but not to be considered as precedents binding under all circumstances; the question whether necessary or not, being mainly, within the limits hereinbefore laid down, 75 one of fact for the jury, and the burden of proof with the plaintiff, to prove the articles in question necessary. See 1 Chitty on Conts. (11th Am. ed.) p. 195, and cases cited; also (ante). See fur- ther on the subject of necessaries, Benj. on Sales (1st Am. ed.), §§ 22, 23, 24, and notes; Story on Sales, § 34 e¢ seq.; Bing. on Inf. (Bennett's ed.) * 86, note (1); Story on Conts. (4th ed.) § 77 et seg.; 1 Pars. on Conts. (5th ed.) p. 296 et seg.; 1 Chitty on Conts. (11th Am. ed.) 195 et seg.; Ty- ler on Inf. ch. vii., and the cases therein cited. ELLioTr v. Horn. (10 Ala. 348. Supreme Court of Alabama, June Term, 1846.) Acts binding upon Infants. Conveyance by Infant Trustee. — A purchase of land by a father, in the name of his son, for the purpose of defrauding his creditors, is void as against creditors or subsequent purchasers from the father, though they have notice of the conveyance to the son. A father entered land in the name of the son for the purpose of defrauding his creditors; afterwards sold the land, and, by his direction, the son conveyed during infancy to the purchaser. same land to another, who brought suit. On his becoming of age, he conveyed the Held, that as his conveyance during infancy was such as the law would have compelled him to make, he could not disaffirm it on attaining his majority. Error to the Circuit Court of Greene. Trespass to try title, by the defendants against the plain- tiffs in error, to eighty acres of land in Greene County. From a bill of exceptions it appears, that the plaintiffs, to prove title to the land sued for, produced and read a patent from the United States to one John Cobb, bearing date the 20th of August 1826, and a deed for the said land, executed by John Cobb to Edwin Cook, dated 23d December, 1838, and then proved that Edwin Cook died intestate, and that the plaintiffs are his children and heirs at law, and that the defendants, as the heirs 76 INFANCY. at law of one T. R. Elliott, were in the possession of the land at the commencement of this suit. The defendants, to show title, produced and read a deed for the land, from John Cobb, executed to one J. E. Herndon on the 2d February, 1831, and a deed from Herndon to T. R. Elliott on the 7th August, 1833; that Elliott, under and by virtue of his deed from Herndon, went into possession, and continued in possession until his death; and that the defendants, as his heirs, have had possession. It was admitted that John Cobb was an infant when he exe- cuted the deed to Herndon, and was of full age when he executed the deed to Cook; and it was proved that Elliott knew when he purchased from Herndon that Cobb was an infant when he con- veyed to Herndon. The defendant, to prove that the deed to Herndon was binding on Cobb though an infant, offered evidence to prove that the land was in fact entered by one James Cobb, and paid for by him with his own money; that James Cobb was the father of John, who was at the time an infant of tender years, having no sepa- rate estate; the father having a wife, and three other infant chil- dren; that he was in indigent circumstances when he entered the land, and entered it in the name of his son to defraud his creditors; that Herndon was a creditor of the father, at the time he took the deed, but not at the time the land was entered ; that the father sold the land to Herndon, in payment of the debt, and by his direction, John Cobb, the son, executed the deed. To this evidence the plaintiff objected as irrelevant and immate- rial, and the Court sustained the objection, holding that the facts, if proved, would not validate the deed from him to Hern- don, to which the defendant excepted. The defendants also insisted that the deed from John Cobb to Edwin Cook was void by reason of the adverse possession of Elliott, at the time of such conveyance. But the Court charged the jury that, though a deed for land in the adverse possession of another was void, the facts of this case created an exception to the rule, and that an infant who had made a deed for lands during his minority might at majority disaffirm and annul it, by the execution of a deed to another; and such deed would pass a valid title to the grantee, notwithstanding the land was then in ELLIOTT v. HORN. 17 the adverse possession of the first grantee, and might recover the land in this form of action. To all which they excepted, and which they now assign as error. W. G. Jones, for plaintiff in error [cited 2 Kent’s Com/ 238, 244; Zouch v. Parsons, 8 Burr. 1794 (ante, p. 3); Dearman v. Dearman, 4 Ala. 521; 2 Story’s Eq. 443, 447; Jeremy’s Eq. 90; 1 Lomax, Dig. 207; Lewin on Trusts, 169; 2 Sug. Ven. 152, 169; Prankard v. Prankard, 1 Sim. & S. 1; Guthrie v. Gardner, 19 Wend. 414; Doe ex. dem. Davis v. McKinney, 5 Ala. 719; Dexter & Allen ». Nelson, 6 Ala. 68; Pryor & Fisher v. Butler, Jan- uary Term, 1846; 4 Kent’s Com. 446, 449.] A. Graham and Erwin, contra [cited 2 Story’s Eq. (2d ed.) § 1202, 1208, and notes; Jeremy’s Eq. J. 89-92; Grey v. Grey, 2 Swan. 518, 598; Prankard v. Prankard, 1 Sim. & Stew. 1; 9 Viner’s Ab., Title “Enfant,” 375, § 6; Vent v. Osgood, 19 Pick. - 573; 2 Kent’s Com. (4th ed.) 235 et seg.; Freeman v. Bradford 5 Porter, 278; Keane v. Boycott, 2 H. Black. 515 (ante, p. 17); U. 8. v. Bainbridge, 1 Mason, 71; Hoyle v. Stowe, 2 Dev. & Bat. (N. C.) 820; Tucker et al. v. Moreland, 10 Peters, 71 _ (post, p. 128).] Ormond, J. The land in controversy was purchased of the United States by James Cobb, with his own money, but entered at the land office in the name of his son, John, then an infant of tender years, for the purpose of defrauding his creditors, he being then greatly embarrassed. This transaction is declared by the second section of the statute of frauds of this State to be utterly void, not only as to creditors, but as against subsequent pur- chasers, embracing the substance of the provisions of both the 18 & 27 Eliz. In respect to the 27 Eliz., the English decisions are uniform, that a voluntary conveyance, although without fraud, will be set aside in favor of a subsequent purchaser for a valuable considera- tion, though he had full notice of the previous voluntary convey- ance. Townsend v. Windam, 2 Ves. 10; Doe v. Rutledge, Cowp. 711; Fonblanque’s Eq., Book I. c. 4, § 18; Roberts v. Anderson, 3 Johns. C. 376. In this case, however, the purchase by the father, in the name of the son, was fraudulent as well as volun- tary; and, according to the established current of decisions, would be void as against subsequent as well as existing creditors. See 78 INFANCY. this question discussed by Ch. Kent, in Reade v. Livingston, 3 Johns. C. 500. So that whether the purchaser from the father, who was also a subsequent creditor, be considered as a creditor, or as a purchaser with notice of the previous voluntary convey- ance to the son, the result under our statute of frauds is the same. We may therefore dismiss from the consideration of this question, all the arguments founded upon the relative situation of these parties, father and son. Ordinarily, this does raise the presumption that the purchase was intended as advancement to the child, and it devolves on one asserting a resulting trust in the father, to establish it. But here, as the intention was to defraud creditors, as against them and subsequent purchasers from the father, the purchase in the name of the son is a void act, and the effect as to them is pre- cisely the same as if the land had been entered in the name of -the father instead of the son. The only difficulty presented by the case arises from the fact, that as the fraudulent entry was made in the name of the son, the patent of the government, the highest evidence of the legal title, issued to the son, and this brings up the question of law, arising upon the two deeds executed by John Cobb, one whilst he was an infant, made at the instance of his father, under which the plaintiffs in error deduce their title, and the other after he came of full age, under which the defendant in error claims. It may be conceded, that generally the deed of an infant, whether it be a deed of bargain and sale, operating by virtue of the statute of uses, or any other conveyance recognized by our law as a valid transfer of lands, would be disaffirmed, and rendered inefficacious by a subsequent conveyance made on his attaining majority. But this must certainly be confined to those cases where the infant has a valid title to the land so conveyed. That was the case of Hoyle v. Stowe, 2 Dev. & B. 322, so earnestly pressed in argument. There an infant had, by deed of bargain and sale, conveyed his land during his minority, and subsequently, on his coming of age, by a similar deed conveyed it to another. The Court held the first deed to be voidable by the infant, on his attaining his majority, and that the making of the subsequent deed avoided the first. It is perfectly obvious the case just cited has but little, if any, resemblance to this. Here the infant, though the legal title was ELLIOTT v. HORN. 79 east upon him by the fraudulent conduct of his father, had no right to the land against a creditor or purchaser; when, therefore, he conveyed to the purchaser from his father, he merely parted with the naked title, and only did that which a Court of equity would have compelled him to do; and we are unable to perceive any reason for permitting him, by a disaffirmance of this act, to reinvest himself with the title, to be again deprived of it. We do not understand the law to be that every act of an infant, though it be by deed, is voidable at his election, on his attaining his majority. It is an ancient maxim of the common law, that “generally, * whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it without suit of law.” Co. Litt. 172a; 1 Thos. Coke Litt. 205. This point was so determined in the great case of Zouch v. Par- sons, 8 Burr. 1801 (ante, p. 3). That was the case of an infant mortgagee, in whom the title was vested, who, upon the payment of the mortgage debt to the persons entitled to receive it, made a reconveyance of the land, and the Court held, that as this was an act which by law he could be compelled to perform, his voluntary performance of it, though during minority, should bind him, and he could not afterwards disaffirm it. We are aware that this cele- brated judgment has been the subject of some critical animadver- sion, on account of some of the general positions advanced by Lord MansFIELD. The true point of the case has never been seriously questioned, but is admitted to be law by the highest authority at the present day. In Tucker v. Moreland, 10 Peters, 67 (post, p. 128), the decision is approved. The Court say: “It was precisely such an act as the infant was bound to do, and would have been compelled to do by a Court of equity, as a trustee of the mortgagors, and cer- tainly it was to his interest to do it.” So in the case of Hoyle v. Stowe, previously cited from 2 D. & B. 322, whilst condemning some of the general propositions of Lord MANSFIELD as too sweep- ing, it isadmitted by the Court, that the case was correctly decided. So, also, Chancellor Kent, in summing up the doctrine upon this difficult and vexed question, says, “‘ The doctrine of the case of Zouch v. Parsons has been recognized as law in this country, and is not now to be shaken.” See also 1 Mason, 82; Whitney v. Dutch, 14 Mass. 467 (ante, p. 88); Bingham on Infancy, ch. II. INFANCY. Upon this difficult question, what acts of an infant are abso- lutely void, voidable at his election, or binding on him, though made during infancy, we desire to be understood, as confining ourselves to the precise case before us, which is that of an infant doing an act which it would have been his duty on arriving at full age to do, and which by law he could have been compelled to do. Such an act, though performed during infancy, is binding on him, and cannot be afterwards disaffirmed. Upon the other point of the case, we incline to the opinion that there is no difference between an infant and an adult as to the right to convey a title to land held adversely to the grantor. That a conveyance by an infant, accompanied by a possession held adversely to him, though it may be avoided when he attains his majority, yet he cannot by his deed convey this title to another, so as to invest him with the right to sue in his own name for its recovery. But we waive the decision of this point, as the other 80 is decisive of the case. Let the judgment be reversed and the cause remanded. As to the correctness of the rule declared in this case and in Zouch ». Parsons (ante, p. 3), that ‘“ generally, whatsoever an infant is bound to do by law, the same shall bind him albeit he doth it without suit of law,” there seems to be no controversy ; the rule is proba- bly founded upon the principle of avoid- ing circuity of action, as it would be idle to hold that to be void or voidable which he could be at once compelled to do over again, if avoided. See also the following authorities: Co. Litt. 172 a; Com. Dig. ‘‘ Enfant,” B. 6; 4 Greenl. Cruise on Real Prop. Title, 32, ch. 2, sec. 13; Tucker e¢ al. v. Moreland, 10 Peters, 67 (post, p. 128); Prouty v. Edgar, 6 Clarke (Iowa), 373; Jones». Brewer, 1 Pick. 314; Commonwealth v. Hantz, 2 Penn. (Penrose & Watts) 338; Bavington v. Clarke, id. 115; vw. Handcock, 17 Ves. 383; 1 Fonbl. Eq. B. 1, ch. 2, § 5 and notes; 6 Mass. 80; Reeve’s Dom. Rel. ch. ii. p. * 2353 1 Story on Cont. (4th ed.) §73a. Metc. on Cont. p. 67; 1 Am. Lead. Cas. (4th ed.) 246. So also, where an infant holds the legal title to real estate in trust for another who, having previously heen paid therefor, has executed a bond with security for the conveyance of the same by the infant on arriving at majority to the third party purchas- ing the same, and, where such trustee conveys the land to the purchaser du- ring his minority, he cannot set aside the deed on the ground of infancy, nor for the reason that the bond was ob- tained from the party holding the beneficial interest by fraud or duress. Prouty v. Edgar (supra). So infants are bound by equal parti- tion of lands. See Bavington v. Clarke (supra). See, however, Kilcrease v. Shelby, 23 Miss. 166; and by just admeasurement of dower, Jones v. Brewer (supra). = But partition made by infants, when unequal, is subject to the same rule as other acts of infants, and is voidable. See Rainsford v. Rainsford, 1 Speer’s Eq. 385. And where agreement and partition has been made between adults ROACH ¥. QUICK. e on the one side and persons some of whom were minors on the other, which has been entirely executed on the part of the adults of the first part, but in consequence of the infancy of the said minors no releases were executed by them, but their guardian, with the ap- probation of the minors and of their mother, agreed to the settlement and promised releases on their attaining majority, the same was held to be void- able by the infants on arriving at ma- jority; but they must elect either to confirm the agreement or to relinquish all rights and pretensions resulting from it. Overbach v. Heermance, Hopk. Ch. 337. 81 But an infant cannot bind himself by the execution of a power coupled with an interest. Thompson v. Lyon, 20 Mo. 155; Bingham on Inf. 81, 82. So where an enlistment of minors is authorized (or according to other authorities not forbidden) by statute, the contract of enlistment of a minor is binding. U.S. v. Bainbridge, 1 Mason, 71; Commonwealth v. Murray, 4 Binn. 487; Commonwealth v. Gamble, 11 S. & R. 93; U. S. v. Blackenay, 3 Grat. 405;-U. S. v. Lipscomb, 4 Grat. 41. Otherwise where forbidden by statute. See Commonwealth v. Harrison, 11 Mass. 63; Commonwealth v. Cushing, 11 Mass. 67; U. S. v. Anderson, Cooke, 143. See also 10 Johns. 453; 12 id. 68; Brayt. 119; 7 Penn. St. 336; Crabbe, 265. An infant may bind himself by the execution of a naked power, either by absolute deed or otherwise, as fully and effectually as an adult. Sheldon v. Newton, 3 Ohio St. 507. RoacH v. QUICK et ux. (9 Wend. 238. Supreme Court of New York, October, 1832.) Infant Husband liable for ante-nuptial Debts of Wife.—In an action against husband and wife for the debt of the wife, contracted by her while sole, a plea that the husband is an infant is no bar to a recovery.' Demurrer to plea. To a declaration for goods sold and deliv- ered to the wife whilst sole, the defendants jointly pleaded that, at the time of the commencement of the suit, the husband was an infant within the age of twenty-one years, to wit, &c.; to which plea the plaintiffs demurred. M. T. Reynolds, for the plaintiffs. An infant is competent to enter into the marriage contract. By the intermarriage in this case, the husband became entitled to the personal property of the wife, and might reduce it to possession. Such being the neces- sary consequence of the marriage which he has capacity to con- tract, the law will not permit him to allege his infancy in fraud. of others whom he has deprived of their legal rights. His liabil- 1 See Laws of 1853, ch. 576, p. 1057. 6 82 INFANCY. a ity for the debts of his wife is an incident of the principal con- tract, and, being such, he cannot avoid answering for the debts of his wife. Atherly on Marriage Settlements, 21, 41; 1 Eden, 60, 75; 2 Brown’s C. C. 545; 4 id. 506; 1 P. Wms. 469; 3 id. 409; Cas. Temp. Talb. 173; 1 Campb. 189; Esp. N. P. 161; Barnes, 95; Reeve’s Domestic Relat. 234; Drury v. Drury, App. to Mc- Carty v. Teller, 8 Wendell, 321, &c. If the plea of infancy be interposed, it should be pleaded as a personal privilege belonging to the husband alone, and not in bar of a recovery against the wife as well as the husband; for, on the death of the husband, there can be ‘no question of the wife’s liability for a debt con- tracted by her previous to her marriage. J. A. Spencer, for the defendants. Allowing that an infant, whose estate was benefited by his marriage, would be liable for the debts of his wife contracted by her while sole, it does not follow that a suit at law can be maintained against him. A bill in equity would probably be sustained in such a case, but not a suit at law, especially where there is no averment of the estate of the infant having been benefited. An infant is not liable even for necessaries provided the wife for the marriage, though for necessaries for the wife subsequently furnished, he is chargeable. Strange, 168; Comyn’s Dig. tit. “ Enfant,” B. 5. The plaintiffs in this case should have sued the wife alone; and, if coverture had been pleaded, they might have replied the infancy of the husband. The answer to the suggestion that the husband alone ought to have pleaded infancy is, that, when husband and wife are sued jointly, they cannot plead separately. Comyn’s Dig. tit. ‘ Pleader,” 2, A. 3. By the Court. Nexson, J. As an incident to the marriage contract which an infant is competent to enter into, he is liable to pay the debts of his wife contracted by her before marriage. Prior to her marriage the wife was responsible for such debts; - and, unless the liability to pay them attached to the husband, her creditors would be remediless, as she cannot be sued alone, sep- arate from her husband; and, if she could, a judgment against her would be fruitless, as all her estate is absolutely or qualifiedly vested in her husband. Reeve’s Dom. Rel. 234; Barnes, 95. The plea in this case, therefore, is bad, and the plaintiffs are enti- tled to judgment; the defendants have leave to amend, on pay- ment of costs. WHITTINGHAM’S CASE. The principle of this case seems clear enough, and the case was fol- lowed by Butler v. Breck, 7 Met. 164. See also Chapple v. Cooper, in notes to Peters v. Fleming (ante, p. 70). So where the law authorizes the in- fant father of a bastard child to settle with the mother and secure to her com- pensation for keeping such child, it impliedly authorizes him to bind him- self by the execution of the instru- 83 ments necessary in making such settle- ment. Gavin v. Burton, 8 Ind. 69. See also People v. Moores, 4 Denio, 518. And where the law permits an infant over the age of cighteen to make a “‘marriage contract,” as incident to such power, he can release a party from a contract to marry him. Deve- lin ». Riggsbee, 4 Ind. 464. WuHitTtTIncHam’s Casn. ” (8 Coke, 42. Star Chamber, Hil. 45 Eliz. 1603.) Infancy. Who may take the Benefit of. — Privies in blood shall take benefit of infancy. Privies in estate and law shall not take benefit of infancy. Tue case in the Star Chamber, Hil. 45 Eliz. was, that Richard Whittingham was seised of three messuages, &c., in Crayford; in the County of Kent, held of the Queen in socage, as of the manor of Newbury, in Crayford, in fee; and by his will in writing de- vised them to Prudence, his bastard daughter, and her heirs, and died. Prudence, being within age of twenty-one years, by deed, as was pretended, did enfeoff Stephens and others of the said ten- ements in fee, and died within age without issue, and whether this feoffment should prevent the Queen of her escheat was the question; and, on consideration had with the two chief justices, it was resolved, that if there be lord and! infant tenants, and the infant makes a feoffment in fee, and executes it by livery of seisin by his own hands, and afterwards dies without heir, that. the lord should not take benefit of any escheat in that case. And as to that, it is to be known that there are three manner of? privities: seil. privity in blood; privity in estate; and privity in law. Privies in blood are meant of privies in blood inheritable, and that is in three manners: scil. inheritable as general heir ; inher- 1 Dyer, 10 pl. 88; 4 Co. 125a; 7 Co. 76, post, 45 a; 2 Inst. 483; 49 EH. IIL. 13a; 89 H. VI. 426; 7H. V. 98; 8 Bulstr. 272. 2 Co. Lit. 271 a; 1 Jones, 82; 8 Co. 23a; 4 Co. 123 b, 124.4; 2 Inst, 516, 517. 84 INFANCY. itable as special heir; and inheritable as general and special heir. Privies in estate are, as joint-tenants, husband and wife, donor and donee, lessor and lessee, &c. Privies in law are, when the law, without blood or privity of estate, casts the land upon one, or makes his entry lawful; as the lord by escheat, the lord who” enters for mortmain, the lord of a villain, &c. And first, privies? inheritable, as general heir, shall take benefit of infancy; and, therefore, if an infant tenant in fee-simple makes a feoffment and dies, his heir shall enter. The same law of him who is heir general and special. As if a man gives land to one and the heirs male of his body, and the donee, within age, makes a feoffment in fee, his son, who is heir general and special, shall enter. The,same law of him, who is special heir, and not general, as if in the same case the donee had issue two sons, and the elder had issue a daughter, and the donee died, and the elder son, within age, made a feoffment, and died without issue male, the younger is special heir, per for- mam dont, and shall avoid his brother’s feoffment, although he be not general heir, because he is privy in blood, and has the land by descent; soif lands be given to one and the heirs? females of his body, and the donee having issue a son and daughter, makes a feoffment within age, and dies, the daughter, being heir special (to whom the right of entry descends), shall enter, and not the son, who has nothing by descent; so of the heir in® borough English ; for in all cases when any claims by descent, as special heir, he shall take benefit of a right of entry, which descends to him, for the infancy of his ancestor; the same law if his ances- tor were non compos mentis at the.time when he made the feoff- ment, because, in these and the like cases, the heir.general cannot enter, because no right or title descends to him, but the right descends to the special heir. So if tenant in tail, within age, makes a feoffment in fee, and is‘ attainted of felony, in that case the issue shall enter for the infancy, yet he is not general heir, for the blood is corrupted. Also privies in® estate (unless it be in some special cases) shall not take advantage of the infancy of the other. And, therefore, if donee in tail, within age, makes a 1 3 Bulst. 272; 2 Inst. 483; 1 Roll. Rep. 401; Palm, 284, 254; 6 Mod. 122. 2 Co. Lit. 887 b. 3 Co. Lit. 887 8. 4 Co. Lit. 887 a; Palm. 254. 5 4 Co, 124; 1 Roll. Rep. 401, 442 ; 8 Bulst. 272; 2 Inst. 483 ; contra, 6 H. IV. 8 6. WHITTINGHAM’S CASE. 85 feoffment in fee, and dies without issue, the donor shall not enter, because there was privity betwixt them only in estate, and no right accrued to the donor by the death of the donee.’ So if? two joint tenants be in fee, within age, and one makes a feoffment in fee of his moiety, and dies, the survivor cannot enter by reason of the infancy of his companion, for by his feoffment the jointure was severed so long as the feoffment remains in force; and, therefore, in such case the heir of the feoffor shall have dum fuit infra etatem, or shall enter into the moiety ; but if? two joint tenants be within age, and they join in a feoffment, in such case a joint right remains in them; and, therefore, if one dies, the right shall survive, and the survivor shall have the right of the land as from the first feoffor ; and thereof I conceive with Litt. cap.4 Discont. 44, that the survivor may enter in respect of the right accrued to him, otherwise this mischief will follow, that the heir of that feoffor who died cannot enter, because the right doth survive ; nor shall the survivor enter, because he shall not take benefit of the infancy of his companion ; but that the survivor shall be driven to his writ of right, which, without doubt, he may have, because, after the feoffment, the joint tenants might have joined init. And if the husband, within age, makes a feoffment in fee and dies, the heir of the husband cannot enter to avoid this feoffment, because nothing descended to him from the husband ; for the law doth not respect what estate the ancestor gives, but what estate he had before the gift, and what right and title the ancestor leaves to descend to his heir; and, therefore, if an infant be tenant in ‘ail, and makes a feoffment in fee, and dies without issue, his® collat- eral heir cannot enter to avoid this feoffment; for, although by his feoffment he gave fee-simple, yet when he died without issue, nothing descended to the heir, in respect of which he could enter ; so if lands be given to one and the heirs females of his body, and he has issue a son, and makes a feoffment in fee, and dies within age, without issue female, the son shall not enter, in this case, for the said infancy, because no right descended to him. So if an infant be tenant pur ® auter vie, and makes a feoffment in fee, and 1 But see Palm. 254, cited in Bac. Abr. Inf. & Age, I. 6. 2 Co. Lit. 887 5; 89 H. VI. 426; 1 Roll. Rep. 401. 3 1 Roll. Rep. 401 ; Lit. sect. 638, 684; Co. Lit. 887 a; Palm. 254; 21 E. II. 50 a, b. 4 Lit. sect. 8, sect. 64; Lit. fol. 142 a,b; Co. Lit. 837 b; Co. Lit. 857 d ; Co. Lit. 634. 5 1 Roll. 676, 677. 6 Co. Lit. 336 b. s , 86 INFANCY. cestuy que vie dies, the infant or his heir shall never enter upon the feoffee, but he in reversion or remainder ; but, for as much as the infant himself, during his life, might have entered upon the feoffee in the right of his wife only, and not in respect of any right which he himself had, it seems reasonable with Littleton, fol. 48, that the wife in the said case, when the husband, within age, makes a feoffment in fee, may enter in her own right, in which right her husband might have entered; and eo potius, because the husband’s heir cannot enter; but if the husband, within age, takes a wife tenant in general tail, and makes a gift in tail to- another, by which he gains a new reversion in fee, there the entry is given to the wife for the cause aforesaid, i.e. that the husband might have entered in her? right; also the heir of the husband who has the new reversion defeats the estate tail given by the infant ; presently the new reversion, by act in law, vanishes from the one, and vests in the other,’ and the wife, by operation in law, shall be presently seised of her ancient estate ; for, when the estate tail is defeated, which was the cause of gaining the new reversion, the heir cannot have the estate which his ancestor had before the gift; for his ancestor, before the gift, had nothing, but in the right of his wife, which determined by his death, as it is held in* 4 H. VI. 2, where the case was, that a man seised of cer- tain lands in the® right of his wife, made a feoffment thereof by deed indented to certain persons, upon condition that they should lease the lands again to the husband and wife for their lives, with divers remainders over in tail, the remainder to the right heirs of the husband, and afterwards the husband died, the feoffees leased the land to the wife for life, with remainders over in tail, the remainder to the right heirs of the wife, where it should be to the right heirs of the husband; and, in that case, it is resolved, that for the condition broken, the® husband’s heir might enter; for although no right descended to him from the husband, whose estate determined by his death, yet the title of condition, which he himself created on his feoffment, and reserved to him and his heirs, should descend after his death to his heir; and go a differ- 1 Lit. sect. 688; Co, Lit, 336 b, 887 a; Lit. 142 a; Palm. 254. 2 Co. Lit. 336 b, 337 a. 3 Co. Lit. 384 b, 202 a. 44H. VI. 2a, 0b; Fitz. Entre congeable, 1; Br. Entre congeable, 38; Br. Condit. 71; Br. Discontinuance, 8. 5 Co. Lit. 282 a. 8 Co. Lit. 386 6, 202 a; Fitz. Entre congeable,1; Br. Entre congeable, 88; Br. Condit. ~ - - 71; Br. Discontinuance, 8. WHITTINGHAM’S CASE. 87 ence between a title of entry by reason of a condition and a right of entry by reason of infancy ; for none shall take benefit of the infancy of his ancestor but he who has a right descended to him from the same ancestor; but the heir may take benefit of a con- dition, although no right descends to him from the same ancestor. Three other points are in a manner resolved in the said case of! 4H. VI. 1, that, when the husband’s heir enters for the condition broken, thereby the feoffment which made the? discontinuance is defeated, and, by consequence, the discontinuance itself is defeated. 2. That, after the heir of the husband hath entered for the condi- tion broken, the estate of the heir vanishes, and the estate is immediately revested in the wife, without entry or claim made by her; for the heir enters by force of the condition, and not in respect of any right, and there two cases are put to prove it. 1. If tenant for life makes a feoffment in fee upon condition, who enters for the condition broken, now the feoffment is avoided, and, by consequence, the reversion presently by the entry revested. 2. If the husband himself had entered for the condition broken, it had revested the estate in the wife. The third point observ- able in the said case of! 4 H. VI. is, that, although the wife had accepted an estate for life, and so concluded herself by acceptance to have any cui in vita, yet wher. the estate which she had taken is defeated by the condition, the conclusion by the acceptance is alsoavoided. Vide Littleton, cap. “‘ Discontinuance,” 43. Privies ® in law, as lord by escheat, &c., shall never take benefit of the privity of infancy because he is a stranger to him; and, when the infant dies without heir, the feoffment is unavoidable ; the same law of ® coverture, and non sana memoria, and so you will better understand your books in 14 E. III., dum fuit infra etatem,6; F. N. B. 192; 22 E. III. 50; dum fut infra etatem, 2; 18 E. II.;7 Brev. 831; 89 E. III. 29; 45 E. III.; 49 E. III. 13; 39H. VI.42; 34 H. VI.81; 6H. IV. 3;9 H. VI.6; 7H.IV.5; 2H. IV. 13; 32H. VI.27. The Abridgment of the Book of Assises, 87 6,7 H. V. 9. It was also resolved, that if the estate of the §infant had been upon condition to be performed by the infant, and the condition had 14H. VI 26, 8a, 6. 2 Br. Discontinuance, 8. 3 Co. Lit. 202 a, 336; Lit, sect. 632. 44H. VI. 26, 34,6. 5 Palm. 254; 7 Co. 70; 4 Co. 124; 1 Roll. Rep. 401, 442; 22 H. VI: 27a; Br. Entre congeable, 129; Palm. 234; 8 Bulstr. 272; 2 Inst. 483. 6 1 Roll. Rep. 401; 3 Bulstr. 272. 7 Palm. 264. 8 8 Bulstr. 59. 88 INFANCY. been broken during his minority, that the land had been lost for ever. Note, reader, as to that, it is to be known, that there are! two manner of conditions, sczl. a condition in fact, that is, ex- pressed ; as to pay money, or to do or not to do some other act, &c., and condition in law, that is implied ; also conditions in law are of two natures, scil:2 by the common law and by the statute; and conditions in law by the common law are in two sorts, one of which is founded upon a confidence and skill, and the other with- out confidence or skill; conditions in law by statute law are also of two qualities, scil. when the statute for execution of the con- dition in law gives recovery, and when the statute gives an entry and no recovery ; as to the condition in law which is founded upon? skill and confidence, as the offices of partnership, stewardship, &e., in fee, which descend to an infant, or a feme covert, if the condi- tion in law aunexed to the said offices be broken, it shall bar the infant and feme covert for ever; the same law of liberties and fran- chises; but if the infant or feme covert be lessee * for life, or ten- ant by the curtesy, or tenant in dower, and the infant or the husband of the wife, makes a feoffment in fee, and the lessor enters for the forfeiture, as he may; yet it shall not bar the infant or Feme covert, but that the infant or feme covert, after the death of the husband, may enter: for that is by force of a mere condition in law, without any skill and confidence annexed to the estate. If an infant or a feme covert lessee for life commits waste, and the lessor recovers in an action of ® waste, it shall bind the infant and JSeme covert ; for the statute gives the action to recover the land. The same law of © cessavit, and of other like cases; asif an infant be gaoler, and suffers an escape, there an action lies. But if the condition in law be by force of a stat. law, which gives an entry, and no action, as”.if an infant, or the husband seised in the right of his wife, aliens in mortmain, there although the lord of whom the land is held enters, yet the right of the infant, or feme covert, ‘is not barred,’ no more than in the case of a condition in law by the common law, which is grounded upon the alienation of the infant tenant for life, or of the husband, &c., where entry to the 1 Hard. 11; 1 Roll. Rep. 198. 2 Hard. 11; Co. Lit. 283d. § Co. Lit. 233 b; Hard. 11, 82; Cr. Car. 550; Co. Lit. 3 8. 41 Roll. 151; Co. Lit. 283 6; Godb. 845, 865, 5 Plow. 864 6; Co. Lit. 233 b; Co. Lit. 54a; F. N.B. 591. 6 Plow. 864 b; 2 Inst. 401. 1 2 Inst. 882; Co. Lit. 288 a. 8 See Cro. Car. 7, Savern v. Smith. i WHITTINGHAM’S CASE. 89 lessor is given by common law. And so you will better under- stand your books in 31 Ass. pl. 17; Br. Covert, 71; Plow. Com. Stowell’s Case, 355; Doctor and Student, lib. 2, fol. 118; Vide 18 (81) E. III. Age, 54; 14 E. III. 88; 28 E. III. 99; 2 E. II. Age, 132; 9 E. III. Note, reader, that a condition in law, by force! of a statute which gives a recovery, is stronger than a con- dition in law without a recovery; for? if lessee for life makes a lease for years, and afterwards enters into the land and commits waste, and the lessor recovers in an action of waste against the lessee for life, he shall avoid the lease for years, made before the waste committed ;* but if lessee for life makes a lease for years, and afterwards enters and makes a feoffment in fee, the lessor shall not avoid the lease for years. So if the tenant makes a lease for years, and afterward is attainted of felony, or dies without heir, the lord by escheat, although he recovers by writ of escheat, shall not avoid the term. But afterwards it appeared in the principal case, that the said supposed feoffment of the said Pru- dence, was executed by letter! of attorney made by the said Prudence ; wherefore it was resolved that it was void, and that the land did escheat to the Queen. See 1 Salk. 386; Post, 99; Carthew, 43. As to who may avoid the voidable acts of an infant, the rule is laid down by Perkins, § 12 (in relation to gifts, grants, or deeds), that they “are void- able by himself, by his heirs, and by those who have his estate.” See Zouch v. Parsons, 3 Burr, 1794 (ante, p. 3). It is very clear that while the infant is alive this privilege of disaffirming his voidable acts is entirely personal; and can be exercised by no third person, stranger, or wrong-doer for him. See Keane, v. Boycott, 2 H. Black. 511 (ante, p. 17); Alsworth v. Cordtz, 31 Miss. 32; Oliver v. Houdlet, 13 Mass. 237; Jackson v. Todd, 6 Johns. 257; Van Bramer v. Cooper, 2 Johns. 279; Slocum v. Hooker, 13 Barb. 536; Ward v. Steamboat ‘ Little Red,” 8 Mo. 358 ; Douglas v. Watson, 8 J. Scott (17 C. B.), 691; Nightingale v. Whittington, 15 Mass. 272 (ante, p. 46); Zouch v. Parsons, 3 Burr. 1794 (ante, p. 3); Hartness v. Thompson, 5 Johns. 160; Rose v. Daniel, 8 Brev. (S. C.) 438; Murrell v. The State, 44 Ala. 372; McCarty v. Murray, 3 Gray, 578; Grey v. Cooper, 3 Doug. 65; Jack- son v. Todd, 6 Johns. 267; Roberts v. Wiggin, 1 N. H. 78; nor by his heirs, or personal representatives, be- cause he has none: ‘‘ nemo est heres viventis.” The cases which use the language (as very many of them do) that the privi- lege is personal, and can be exercised only by the infant himself, are, as to this point, mere dicta, or those where 1 Co. Lit. 2386; 12 B. IV. 21, per Lit. 2 Co. Lit. 238 b. 3 Co. Lit. 333 b. 4 Antea, 42 b; 2 Inst. 483; 9 Co. 76 b. 90 the privilege is sought to be invoked in favor of some third person, or during the life of the infant; and being con- strued with reference to the subject- matter are not authorities against the exercise of it by his heirs, or personal representatives in proper cases. See the preceding cases. And it may be considered well set- tled that the voidable acts of an infant may, after his death, be avoided by his executors or administrators in cases where they succeed to his interest or legally represent the infant. See Jef- ford’s Adm’r v. Ringgold, 6 Ala. 547; Counts v. Bates, Harper, 464; Shrop- shire v. Burns, 46 Ala. 115; Person, Adm’r v. Chase, 37 Vt. 650; Parsons v. Hill, 8 Mo. 135; Breckenridge’s Heirs v. Ormsby, 1 J. J. Marsh. 248 ; Smith v. Mayo, 9 Mass. 62; Hussey v. Jewitt, 9 Mass. 100; Martin v. Mayo, 10 Mass. 137; Jackson v. Mayo, 11 Mass. 147; Hastings v. Dollarhide, 24 Cal. 207; Ferguson v. Bell’s Adm’r, 17 Mo. 851; Wilson v. Porter, 13 La. Ann, 407; Vaughan, Adm’r v. Parr, 20 Ark. 600; 2 Kent’s Com. 236; Bac. Abr. Inf. & Age, I. 6; 1 Am. Lead. Cas. (4th ed.) 250. Or by his heirs or privies in blood in cases where they succeed to his estate, the policy of the law being to tolerate no interference by strangers, wrong- doers, or by those who have no legal interest in the subject-matter. See Ferguson v. Bell’s Adm'r (supra); Austin v, Charlestown Female Semi- nary, 8 Met. 203; Breckenridge’s Heirs v. Ormsby, 1 J. J. Marsh. 248; Levering v. Heighe, 2 Md. Ch. Dee. INFANCY. 88; Bac. Abr. Inf. & Age, I. 6; Com. Dig. ‘‘ Enfant,” C. 8; 1 Am. Lead. Cas. 250. And it seems to be settled that this privilege of avoidance is not assignable, and cannot be exercised by his as- signees, privies in law, or by privies in estate only, though there are some cases and dicta tothe contrary.) Fer- guson v. Bell’s Adm’r (supra); Austin v. Charlestown Female Seminary (supra); Levering v. Heighe (supra). See also Breckenridge’s Heirs v. Orms-. by, 1 J. J. Marsh. 248; Bac. Abr. Inf. & Age, I. 6;, Com. Dig. * Enfant,” C. 8; Tyler on Inf. & Cov. ch. iv. p. 59, § 19; 1 Am. Lead. Cas. 250. The cases, however, are all agreed in hold- ing that the adult is bound, though the promise on the part of the infant is voidable. See Bac. Abr. Inf. & Age, I. 4; 2 Kent’s Com. * 236; Reeve’s Dom. Rel. ch. iii. p. * 243; Tyler on Inf. & Cov. ch. iv. p. 59 et seq., and cases cited. These cases and dicta (in none of which is the subject extensively consid-~ ered) seem (at least in part) to have arisen from a mistaken opinion as to the meaning of the words ‘and by those who have his estate,’’ in sec. 12 of Per- kins, above quoted; and they do not seem to be the deliberate opinion of the Court after full discussion and having their attention drawn to the particular , point mentioned, and so would seem entitled to no great weight. In Breck- enridge’s Heirs v. Ormsby (supra), the subject is considerably discussed, and the case of Jackson v. Burchin (supra), so far as it applies to a purchaser from the infant, is attempted to be reconciled 1 Nelson v. Eaton, 1 Redf. (N. Y. Sur.), 498; Beeler’s Heirs v. Bullitt’s Heirs, 3 A. K. Marsh. 280; Jackson v. Burchin, 14 Johns. 127; Dominick v. Michael, 4 Sandf. (N. Y. Sup’r Ct.), 419; 2 Hill, Real Prop. 481. See also Roach v. Williams, 2 Mill’s Const. 202, where, though the point is not passed upon, the opinion is ex- pressed that where a female parcener had during minority joined in conveying land, and married during infancy, her right of disaffirmance devolved on her husband. Also Shaw v. Boyd, 5 Serg. & Rawle, 812, where it was admitted that the confirma- tion by the husband would bind both himself and his wife during coverture. It is settled, however, that the disability of infancy is not removed by coverture. Bool v. Mix, 17 Wend. 119; Harrod v, Myers, 21 Ark. 592; Walsh v. Young, 110 Mass. 399. WHITTINGHAM’S CASE. with the opposing authorities. In de- livering their opinion, the Court say: “The decision in Johnson, so far as it applies to a purchaser, may be recon- ciled with these apparently opposing au- thorities, and Perkins may mean pur- chasers, in the language quoted. We think he does. The case cited from Johnson (Jackson v. Burchin) was one in which an infant who had made a deed to A., after he came to the age of twenty-one, conveyed the same land ‘to B., and the question was, whether B. could take advantage of the infancy. It was decided that. he could, because in the language of the Court, Perkins, in the twelfth section, laid it down that privies in estate had that right. Al- though the Court may have erred in this construction of Perkins, and thus gave a reason for its opinion, which was too comprehensive; yet we concur in the opinion that the last purchaser might avoid, not because a privy in estate may avoid, but because a privy by con- tract or representation may, and such is a purchaser. None of the cases in which it has been held that privies in law and in estate cannot avoid the void- able deeds of infants and lunatics have mentioned, or by their terms include, a subsequent purchaser from the person laboring under the disability. And we are of the opinion that when they speak of privies who are not allowed to avoid, they do not mean such purchasers, but such persons as hold by privity of estate alone. Privies in estate strictly mean those only between whom there are cer- tain rights and relations resulting from the estate held, and not from contract between them. Such a privity in estate or in law exists between a lessor and sub-lessee, a vendor by deed of war- ranty, and a remote vendee or assignee, the lord by escheat, and the terre-tenant, &e. In such cases there is no right or obligation between these parties, grow- ing out of any contract between them. All their rights, as between themselves, are created by the privity of estate. But it is not so between the lessor and 91 his lessee, the vendor and his immediate vendee. The rights and obligations which subsist between these are pro- duced by their contract principally. There is no privity of estate between a lessee and assignee. 1 Salkeld, 317. It is only where an interest in the same estate, without any contract between the parties (called privies in estate), con- stitutes them privies, that they can, with strict propriety and precision, be denom- inated privies in estate. And, although there can be a privity of estate and of contract between the same parties, the authorities which maintain that ‘ privies in estate’ cannot avoid the deeds of in- fants, &c., must mean those only whose privity is exclusively that of estate.” . “Tf a lessor grants his reversion, the grantee and lessee are privies in es- tate; privies in contract extend only to the persons of the lessor and lessee; and where the lessee assigns all his in- terest, here the lessor and lessee remain privy in contract, but not in estate, which is removed by assignment.’ Jacob, title ‘ Privies,’ and 8 Co. 23.” . ** There is no reason why a pur- chaser from a person who had conveyed the same estate previously, and when an infant, shall not have as much right to avail himself of the disability as the heir or executor of the infant has. In- deed, there is plainly much reason for his having a stronger right. He has paid the value of the estate; they have given nothing. If he had not bought it, they might have reclaimed it from the purchaser from the infant, or the in- fant might have obtained a restitution himself. By his purchase, after the re- moval of the disability, he has given the value of the estate to his vendor, and which accrues to the benefit of his heirs and personal representatives, as they might have recovered the estate if he had not bought it, and have virtually — done so by receiving from him its value, why should he not hold it? He cer- tainly has as good a right to it as if the heir or his ancestor had expressly avoided the deed made during infancy, 92 and afterwards sold it to him. Besides, the deed to him conveys all the right which the vendor had. As the vendor had a right to avoid the former deed, certainly the vendee has acquired the same right. Why should not such a purchaser have equal rights with a sec- ond mortgagee, an assignee, or a credi- INFANCY. The opinions thus expressed in the last-named case, and also in Jackson »v. Burchin, would seem to have been un- necessary to the determination of the respective cases, as the execution of the second deed by the infant after ar- riving at majority was clearly an act of avoidance of his prior deed, and was so tor? Moreover the last deed, made held in the cases referred to. after the infant was twenty-one, avoids that made during infancy,” &c. \ Kor STAFFORD ,v. Roor.” (9 Cowen, 626. Court of Errors of New York, December, 1827.) When Trover lies for Chattels sold, but not actually delivered by the Infant. — An infant, having a general guardian, sold a horse belonging to him, the infant; but there was no proof that he delivered the horse with his own hand. The vendee afterwards offered to sell the horse. Held, that trover lay by the infant, even before arriving at majority, without any demand of the horse from the vendee. And per Jonss, Chancellor, the sale is void, no actual manual deliv- ery being shown. Sales by Infants when voidable.— The sale and actual delivery of a personal chattel by an infant is voidable before he arrives at legal majority. Otherwise of land. On error from the Supreme Court (7 Cowen, 179, S. C.) John Stafford brought trover for a horse against Roof, in the C. P. of the city of Albany, called the Mayor’s Court; and the cause was tried there in October, 1824. On the trial, the plain- tiff below proved that in July, 1824, he owned the horse, and on the 23d of that month sold it to the defendant below; and took his note in these words: “ For value received, I promise to pay John Stafford fifty dollars in liquor at my bar.” On this note the following payments were indorsed by the plaintiff below. July 26th, 1824, $4; same day, $1.25. July 30th, cash, $5.50. August 4th, cash $18.00. August 7th, $12.34. The defendant below also proved, that, at the time of the purchase of the horse, the plaintiff below owed the defendant below between $30 and $40 for board, lodging, carriage hire, and liquor. The plain- STAFFORD v. ROOF, 93 tiff below proved that, some time after the sale of the horse, the defendant below offered the horse for sale as his own property, to one John Griffith, who declined to purchase; and farther, that the plaintiff below was but nineteen years of age at the time of the sale of the horse; that Spencer Stafford was his general guardian. The defendant below moved for a nonsuit, on the ground that no conversion had been proved; and also on the ground that it was not competent for the plaintiff below to avoid his contract while yet under age. The motion was overruled ; and the defend- ant below excepted. The defendant below then proved a receipt given by the plaintiff below, dated August 27th, 1824, during the pendency of the suit, in full of the note; and that the plaintiff below had disavowed the suit. The Court below charged that the plaintiff below had a right to bring his action while yet an infant; that the contract was void; that the defendant below was not entitled to have any of the payments made by him allowed, except such as were necessaries; and that the plain- tiff was entitled to recover. The defendant below excepted. Verdict for the plaintiff below of $55, upon which the Mayor’s Court gave judgment. The defendant below, brought error to the Supreme Court, who reversed the judgment, on the sole ground that an infant cannot avoid his executed contract during his minority. Upon which the defendant below brought error to this Court. The reasons for the judgment of the Supreme Court were now assigned as in 7 Cowen, 180-185, S. C. Jones, Chancellor, said, it is true in general that the deed of an infant is voidable merely, when delivered with his own hand ; and is of equal validity, whether it be of lands or chattels. Some of the old writers seem to make a distinction between deeds and other contracts of infants accompanied by manual delivery; but the distinction is now discarded, and the same effect is given to both. They are not void, but voidable, where any act of delivery is done by the infant calculated to carry an estate; and this whether the contract be beneficial to the infant or not. But a manual delivery seems in such case to be essential. None was shown in this case. The fact of possession by the vendee would be evidence of delivery inthe case of an adult; but in case of an infant vendor, there should be strict proof of a personal delivery. “An infant cannot make an attorney. The appointment would be void; and,.there being no proof of \ 94 INFANCY. actual manual delivery, the contract would seem to be void. The agreement to sell conferred no right upon the vendee to take. The mere agreement of the infant to sell would not protect the vendee against an action of trespass for taking the horse. The taking would be tortious, and in itself a conversion. But, suppose the sale to be merely voidable ; could the infant or his guardian avoid it before he arrived at twenty-one years of age? The general rule is, that an infant cannot avoid his contract executed by himself, and which is, therefore, voidable only, while he is within age.! He lacks legal discretion to do the act of avoid- ance. But this rule must be taken with the distinction that the delay shall not work unavoidable prejudice to the infant ; or the object of his privilege, which is intended for his protection, would not be answered. When applied to a sale of his property, it must be his land, — a case in which he may enter and receive the profits until the power of finally avoiding shall arrive ; and such was the doctrine of Zouch v. Parsons (3 Burr. 1794). Should the law extend the same doctrine to sales of his personal estate, it would evidently expose him to great loss in many cases; and we shall act up to the principle of protection much more effectu- ally by allowing him to rescind while under age, though he may sometimes misjudge, and avoid a contract which is for his own benefit. The true rule, then, appears to me to be this: that where the infant can enter and hold the subject of the sale till his legal age, he shall be incapable of avoiding till that time; but where the possession is changed, and there is no legal means to regain and hold it in the mean time, the infant, or his guardian for him, has the right to exercise the power of rescission immediately. Now the éommon law gives no action or other means by which the mere possession of personal property can be reclaimed, and held subject to the right avoidance. Besides, in this case, the infant had a general guardian. It may well be doubted whether he could make any contract of sale which should bind him, for any purpose, during his wardship. STEBBINS, Senator. Whatever may be the correct opinion (and Iam not prepared to express any) upon the question discussed by the Supreme Court in this cause, and in the opinion of his honor the chancellor, as to the right of an infant to avoid, during his minority, a sale of property made by him, there is another 1 Bool v. Mix, 17 Wend. 119; Slocum v. Hooker, 18 Barb. 536. STAFFORD v. ROOF. 95 point upon which I must place my vote. The plaintiff brought his action of trover against the defendant in the Mayor’s Court for the horse which he had sold him during his infancy, and recovered. The defendant took a bill of exceptions upon the ground, among others, that no conversion was proved. The cause coming before the Supreme Court upon this bill of excep- tions, the judgment is reversed, for the reason that the plain- tiff, being an infant, could: not legally avoid his contract of sale until he should become of age. This Court is possessed of the cause upon a writ of error brought to reverse the judgment of the Supreme Court, and to restore to the plaintiff his judgment obtained in the Mayor’s Court. It.is obvious, therefore, that if no conversion of the horse was proved in the Mayor’s Court, the judg- ment of that Court ought to have been reversed by the Supreme Court for that reason, as well as for the reason assigned by them ; and if the exception was well taken by the defendant, the judg- ment of the Supreme Court ought now to be affirmed. The only evidence of conversion is, that the defendant, upon one occasion, offered to sell the horse; and this, in my judgment, does not _amount to a conversion. There is no evidence of any tortious taking, or demand and refusal. The defendant came into pos- session as a purchaser. The sale was not void, but voidable by the infant; and conceding, therefore, that he may avoid it be- fore coming of age, it is certainly good until avoided, and the possession of the defendant must have been rightful until such avoidance. His offer to sell, then, can be no conversion. The first evidence, or notice of his election to avoid the contract which the plaintiff seems to have given, was the commencement of this suit. I think he should first have given notice of his election to avoid the contract, and demanded the horse, and waited for a refusal to deliver, as evidence of conversion, before he commenced his prosecution ; and for this reason I am in favor of affirming the judgment of the Supreme Court. Jonzs, Chancellor, said his attention had been mainly employed upon the question discussed by the Supreme Court. He had attended but slightly to that branch of the case examined by the honorable senator; nor did he feel prepared to express himself strongly upon the question whether an offer to sell a chattel by one who comes lawfully into the possession of it, shall be holden aconversion. He inclined to think that it was an act of such 96 INFANCY. control, inconsistent with, and in defiance of, the rights of the true owner, as to be, primd facie, evidence of a conversion. - But here isa sale set up as having been made by an infant under the care of a general guardian, and accompanied with no evidence whatever of a manual delivery by the ward. He had remarked that such a delivery cannot be intended, though it would be otherwise in the case of an adult. Jt then stands before us, at best, as the case of an infant contracting to sell; and the vendee taking possession in virtue of the contract, without its being fol- lowed up by any act of delivery. Such a taking would be tortious, and a conversion in itself. He was of opinion, on the whole case, that the judgment of the Supreme Court should be reversed. For reversal, — Tur CHANCELLOR, ALLEN, Crary, ELsworta, Enos, Garpiner, Haicut, Hart, Jorpon, Lake, McMartin, WATERMAN, and WILKESON, Senators. For afirmance, — Burrows, Dayan, McCatu, Newson, OLIVER, SMITH, and STEBBINS, Senators. So where an infant executed a chat- tel mortgage to defendants upon a horse to secure a prior indebtedness, but did not deliver possession to the mortgagees, and upon the same day sold and delivered the horse to plain- tiff, and refused to deliver it upon defendants’ mortgage; and after the mortgage matured defendants took the horse from the possession of the plain- tiff, who brought an action to recover possession thereof; and shortly after the infant became of age, and then ratified his bill of sale to plaintiff by indorsement thereon; held that (no possession having been delivered) the defendants’ were trespassers in taking the horse, and plaintiff was entitled to recover. Chapin v. Shafer, 49 N. Y. 411. But where the infant delivers Judgment reversed. property in satisfaction of an antece- dent: debt, and does no act either to disaffirm the original contract or the agreement under which he delivered the property in payment thereof, he cannot treat such agreement and de- livery as void, and maintain trover for the property so delivered. Farr v. Sumner, 12 Vt. 28. The rule, as to the time when certain acts of infants may be avoided by them, is, with certain qualifications stated below, well stated by Judge REEVE, (Reeve’s Dom. Rel. p. * 254) as fol- lows: ‘* It is a universal rule, that all executory contracts which are voidable. on the ground of infancy, may be avoided during infancy by the infant as well as afterwards ; ' as where a minor promises to pay, &c. So, too, in all contracts 1 But in Dunton v. Brown, January Term, 1875, Sup. Ct. of Mich. (80 Mich.), which was an action to recover for money put into the firm business and services rendered by an infant partner to the adult partner, it was held that a voidable con- tract of partnership was not avoidable by the infant till he became of age. CampseELt, J., in delivering the opinion of the Court, says: “An infant’s part- nership agreement is not void. Itis at best only voidable; and we have found no STAFFORD v. ROOF, respecting property which are executed by delivery of some article, on payment of money, may be rescinded by the minor both before and after the time of his coming of age.' But convey- ances of real property by feoffinent, on delivery of the deed which comes in lieu of payment, or by any other conveyance of such property, in fee, for life, or years, cannot be avoided before the infant attain to full age.” * 97 See also Tyler on Inf. & Cov. ch. iv. p. 69, § 30, where substantially the same rule is laid down. The in- fant may enter during minority, and take the profits till he has a legal capac- ity to affirm or avoid his deed; but the entry does not render the deed utterly void, and he may still confirm it on arriving at majority? The infant may probably by his nex friend file a bill and get a receiver of the rents and authority which enables the infant or his guardian to determine whether a voidable contract shall be affirmed or annulled, while the infancy continues. It appears to be a matter for his own decision when he arrives at mature age. It is only such agreements as are not possibly to be regarded as beneficial to him, which are null from the beginning. If the agreement was not void, then it precludes the right to repudiate it, and substitute in its place a contract by implication entirely repugnant, and which no one ever contemplated.” See, however, Corey v. Burton, Sup. Ct. of Mich. April Term, 1875. ! See this rule approved in Riley v. Mallory, 83 Conn. 207. This includes, of course, sales of personal chattels, as in the principal case; also mortgages of chattels. Chapin v. Shafer, 49 N. Y. 407; Cogley «. Cushman, 16 Minn. 401. See also Ship- man v. Horton, 17 Conn. 483; Bartholomew v. Finnemore, 17 Barb. 429; Price v. Furman, 27 Vt. 268; Carr v. Clough, 26 N. H. 291; Willes v. Twambly, 13 Mass. 204; Carpenter v. Carpenter, 45 Ind. 142; Bailey v. Barnberger, 11 B. Monr. 114; Biggs v. McCabe, 27 Ind. 880; Heath v. West, 26 N. H.199; Grace v. Hale, 2Humph. 27; 1 Wash. on Real Prop. 305; 2 Kent. Com. *237. See dictum contra in Boody v. McKenney, 23 Me. 525, citing Roof v. Stafford, 7 Cow. 179, reversed in 9 Cow. 626. See also 12 Vt. 28-81. But when he has exercised his privilege and rescinded his contract, it is held that his privilege extends no farther, and that he cannot rescind his rescission ; thus, in Edgerton v. Wolf, 6 Gray, 453, it was held that an infant who receives property under a contract of sale to him, and then surrenders it to the seller, intending to give up all interest in it, cannot afterwards legally avoid such sur- render, and retake the property from the possession of the seller, and if he doves retake the property he is liable for the conversion. See Zouch v. Parsons, 8 Burr. 1794 (reported in full ante, p. 8); Bool v. Mix, 17 Wend. 182; Baker v. Kennett, 54 Mo. 88; Hartman v. Kendall, 4 Ind. 403; Pitcher v. Laycock, 7 id. 898; Chapman v. Chapman, 18 id. 896 ; Emmons v. Murray, 16 N. H. 890; MeCormic ». Leggett, 8 Jones’ Law (N. C.), 426; Slator v. Trimble, 14 Ir. C. L. R. 342, Q. B.; Hastings v. Dollarhide, 24 Cal. 211; 1 Wash. on Real Prop. 305. In Schneider v. Staihr, 20 Mo. 269, however, a distinction was taken between cases of sales and conveyances of land by infants, which it was admitted could not be conelu- sively avoided till they became of age, and a case of a mortgage of real estate by an infant; and it was held that, where a minor feme covert joined with her husband in a mortgage of her real estate, she might plead infancy during minority in a suit to fore- close the mortgage; but that the husband’s estate during coverture might be sub- jected to sale. 3 Zouch v. Parsons (supra); Bool v. Mix (supra); Metcalf on Contracts, 48. The old books which say that an infant may avuid his deed by entry during minority are, as to this point, probably no longer the law. See the old authorities collected in Com. Dig. “ Enfant,” C. 9; Co. Lit 8805; Bac. Abr. Inf. & Age, I. 6. 7 98 INFANCY. profits. See Matthewson v. Johnson, Some cases hold that they may be 1 Hoff. Ch. 565. avoided at any time after reaching As to how soon after attaining majority till barred by: the statute of majority the infant must exercise his limitations,! and that silent acquiescence privilege of disaffirming his vuidable alone for any period less than the period deeds of land, &e., the authorities are of limitation is not a bar. See Lessee not so harmonious. of Drake v. Ramsay, 5 Ohio, 151.2 1 As to the note and mortgage of real estate executed by an infant it seems that no act of disaffirmance is necessary until demand of payment is made or enforcement sought. Magee v, Welsh, 18 Cal. 155. See also N. H. M. F. Ins. Co. v. Noyes, 82 N. H. 349. 2? This case is herewith given in full: “ This was a motion for a new trial, made by the plaintiffs, in an action of ejectment. The cause was adjourned from the county of Hamilton. ‘The facts are stated in the opinion of the Court. Caswell and Starr for plaintiff; Storer for defendant. Opinion of the Court by Judge Lanz. In 1795, Francis Kennedy contracted to purchase lot No. 406, in Cincinnati, into the pos- session of which he entered, and died. After his death, Symmes leased the lot to the widow for life, and conveyed the reversion to the children. Mrs. Drake is one of these children, born in 1791, married in 1811, and attained majority in 1812. In 1807, the widow and children united in a conveyance of the lot to the defendants and those whose estate they hold, but Mrs. Drake, if she then executed the deed, did not acknowledge it until 1809, when, having attained the age of eighteen, she acknowl- edged the instrument, probably under the mistaken belief that she possessed the requisite power to convey. The lot was sold at its full value, and the whole was the subject of a family arrangement between the mother, the heirs, and the guardians of such as were minors. By this arrangement the evidence showed the mother was to have the use or interest of one-third the money during her life; that this sum was comprised in a note given to her by Anderson, one of the purchasers, the interest of which was paid to her until her deathin 1816. After Mrs. Kennedy’s death, the heirs, including Drake and his wife, met and divided her property and appointed one of their number a trustee to collect the note from Anderson. In 1818 and 1827, the trustee paid to Mr. Drake his share of the note, and took receipts which are severally stated to be in part and in full of Mrs. Drake’s share of Mrs. Kennedy’s estate. It was shown in proof that Mr. and Mrs. Drake, at all times since their marriage, have Tesided within eight or ten miles of Cincinnati. They have not been heard to com- plain of any unfairness in the sale, or even to speak of the transaction, except that, in 1827, Mr. D., being applied to fora release, declined, saying “he would look into the business.” Upon this state of facts the jury were instructed by the Court to return a verdict for the defendants; to set aside which and obtain a new trial is the object of this motion. It is conceded by counsel in this case that the deed of Mrs. Drake, having been executed during her minority, is voidable, and that, when she attained full age, she possessed the power of resuming the estate. The questions which the parties intend to present depend upon the effect and operation of deeds by infants, and the mode in which the law permits them to be rendered void. What is necessary to avoid an infant’s deed? Chancellor Kenr, 2 Com. 195 [285, 288], notices it as “remarkable” that so much uncertainty rests upon this question at this day. That so late as 1818, the present Lord Lynpuursz, and the present Chief Justice of the Common Pleas, while sergeants conducting the case in 8 Taunt. 36 [Holmes v. Blogg, 508], should treat the matter as so unsettled ; one affirming that every such contract binds the adult until avoided ; the other insisting that no such contract pos- sesses any validity until after confirmation. The chief justice who tried the case STAFFORD v. ROOF. 99 Cresinger v. Lessee of Welch, 15 Ohio, Irvine v. Irvine, 9 Wall. (U. S.) 627; 193; Prout ». Wiley, 28 Mich. 164; Voorhies v. Voorhies, 24 Barb. 158; treats the contract as valid until some act of disaffirmance is shown; but other cases seem to be decided on the supposition that until affirmance the contract is void. Co. Lit. 51; Hubbard v. Cummings, 1 Greenleaf, 11; Jackson v. Carpenter, 11 Johns. 639; Jackson v. Burchin, 14 Johns. 124; Curtin. Patton, 11 Sergeant & Rawle, 305, cited by Kent uf supra. But tous it appears that the word “ voidable,” ex vi termini, shows that such a deed transmits the title, and that after vesting it con- tinues in the grantee until divested by some act of the maker of the deed. Some of the books apparently suppose that the act of avoidance must be of equal solem- nity with the act of grant. Rogers v. Hurd, 4 Day, 51 [57]; Jackson v. Burchin, 14 Johns. 124. But I cannot find it to be expressly decided, except in case of feoff- ments, where a peculiar feudal principle renders it necessary; we believe that an entry, suit, or action, a subsequent conveyance, an effort to restore parties to their original condition, or any act unequivocally manifesting the intention, would render the avoidance effectual, and that the institution of this suit is an act fully possessing this character. But it is strenuously urged that the power of disaffirmance must be executed “in a reasonable time,” in some short period after the infant becomes of age. The cases cited do not appear to us to establish this proposition, nor do we believe it supported by any sound reasons. The power to rescind contracts at law and chancery, from the omission of one of the parties, strikes us as not analogous to this; there the contract is already void, if the party elect so consider it; here it is not void until made so by the act of the party. The right to abandon in cases of insurance is regulated by mercantile securities, and governed by rules peculiar to itself. The case of Cecil v. Salsbury, 2 Vern. 224, related to a power to retract an offer, which must have been exercised during the pendency of a suit, and was accom- _panied with acts recognizing the offer after the infant attained age. The case Mad- don v. White, 2 T. R. [159], differs from the present in this, that it is the example of a privilege not created by law, but originating in contract, to be exercised on, not after, he attained full age. And in the case, 6 Conn. 498 (Kline v. Beebe), so strongly relied upon by the defendants, we find, if we may trust to a digest (for the original is not now accessible to us), that thirty-five years had elapsed from the mak- ing of the deed to the attempted avoidance; a period longer than the statute of limi- tations, and of itself sufficient evidence of confirmation, without adverting to other circumstances connected with the possession of the note for the purchase-money. In our opinion, lapse of time may frequently furnish evidence of acquiescence, and thus confirm the title; but of itself does not take away the right to avoid, until the stat- ute of limitations take effect. In this position we are countenanced by decisions of the most respectable Courts: in Jackson v. Carpenter, 11 Johns. 589, twelve years ; in Jackson v. Burchin, 14 Johns. 124, eleven years had elapsed from the time of the sale; in Rogers v. Hurd, 4 Day, 57, fifteen years had expired; and in a case reported, 3 Marshall, , the term of twenty-eight years intervened before the deed was avoided. We are, therefore, led to the conclusion that, since the statute of limi- tations does not yet operate, the plaintiffs possess the right to disaffirm the deed of Mrs. Drake, unless they have extinguished this privilege by something amounting to a confirmation. I am prepared to admit this effect may follow either an express recognition of the validity of the deed, or from any act done under a knowledge of their rights, which demonstrates a willingness to be bound by the contract, or by continuing, after acquiring such knowledge, to enjoy any benefit, profit, or privilege under the contract after the infant has attained full age. But I look in vain through this transaction for evidence of any such assent. ‘here is no satisfactory proof 100 INFANCY. Huth v. Carondelet Marine Rail. & Grimes, 2 Grant’s Cas. 96; Tucker v. Dock Co., 56 Mo. 206; Urban v. Moreland, 10 Peters, 76; Boody »v. that Mrs. Drake was apprised of her rights ; that she knew she possessed the power to disaffirm; but the testimony raises the suspicion that she believed she was bound to convey, because it was said the land was sold by order of Court. Besides, she has at all times been under such disabilities that no binding ratification could be made except by deed. It does not appear that Drake knew his wife was ever a pro- prietor in the lot; the receipt of his share of the purchase-money happened long after ithe sale, when the debt was embodied in the note from Anderson to Mrs. Kennedy, to which his wife was entitled as heir; and neither his receipts nor any other act in proof lead to the belief that he knew from whence it arose, or that he claimed it in ‘any other character. [Hughes v. Watson, 10 Ohio, 134.] New trial granted.” So much of the case of Kline ». Beebe (supra) as relates to the question is here given -as follows: “8. Has the deed in question been affirmed? Patty Bolles arrived at full age more than a year before her intermarriage with the plaintiff, and about three years after this event, the plaintiff suffered ten years to elapse before he brought his action. During all this period there was neither expression nor act tending to disaf- firmance of the deed in question. ‘The defendant was in possession of the land; the promissory note, given in consideration of the deed, was retained by the plaintiff; and the service of the plaintiff's writ was the first act or attempt to annul the conveyance. All avoidable acts may -be affirmed by an infant when he arrives at maturity, or he may disaffirm them. There are three modes of affirmance. The first and most obvi- .ous is by an express ratification. 4 Leon. 4. The second is by the performance of an .act or acts, from which an affirmance may reasonably be implied. 1 Pow. on Cont. 55. A ratification of the contract has often been inferred from the silence of the infant atter his arrival at full age, coupled with his retaining possession of the consideration, or availing himself in any manner of his conveyance ; such as his reception of rent under a voidable lease, Lit. sect. 258; Morgan v. Morgan, 1 Atk. 489: the remaining in possession of lands leased or conveyed to him, Evelyn v. Chichester, 3 Burr, 1717; Ketsey’s Case, Cro. Jac. 820;Com. Dig. tit. “Enfant,” C.; receiving interest on a contract, Franklin v. Thornebury, 1 Vern. 1382; the occupancy of land taken in exchange for other land, Cecil et al. v. Salisbury, 2 Vern. 225; Co. Lit. 51); and any other act indicating an intention to affirm. And in the same manner a disaf- firmance will be implied by the performance of an act evincing an election to dis- affirm, Jackson d. Wallace et al. v. Carpenter, 11 Johns. 539; Jackson d. Brayton et al. v. Burchin, 14 Jolins. 124. The omission to disaffirm a contract within a rea- sonable time has been held sufficient evidence of a ratification. In Holmes v. Blogg, 8 Taunt. 86, 39, 40, it was observed by Datuas, J. (afterwards Chief Justice) : “The infant is bound to give notice of the disaffirmance of a voidable contract in reasonable time; and, if the case before the Court were that simple case, I should be disposed to hold that, as the infant had not given express notice of disaffirmance within four months, be had not given notice of a disaffirmance in reasonable time. This principle is recommended by its justice and general convenience It is unjust ithat the infant, after his arrival at maturity and the lapse of a reasonable time, should hold the scales in his hands and decide as future circumstances should incline. In the mean time, the purchaser under him is ata stand and incapable of making any necessary and permanent improvement on his estate. Of this opinion is the author .of ‘Commentaries on American Law.’ ‘ His confirmation,’ says that learned jurist, ‘of the act or deed of his infancy may be justly inferred against him after he has _been of age for a reasonable time, either by his positive acts in favor of the contract, or from his tacit assent under circumstances not to excuse his silence.’ 2 Kent’s STAFFORD v. ROOF, McKenney, 28 Me. 528; Jackson v. Carpenter, 11 Johns. 539; Peterson ». Laik, 24 Mo. 544; Youse v. Nor- coms, 12 Mo. 564; Baker v. Kennett, 54 Mo. 90; Noreum v. Gaty, 19 Mo. 69; 1 Pars. on Cont. (5th ed.) 325, 326 and notes; 25 Ill. 135. But it seems to be admitted that the lapse of a less period of time, taken in connection with other circumstances, may amount to a confirmation; see Lessee of Drake v. Ramsay, and Cresinger v. Lessee of Welch (supra), e.g., by way of estop- pel, as where the infant vendor after attaining majority saw extensive im- provements made on the premises by his vendee, and said he had sold the lot, had been paid for it, and was satis- fied. Wheaton v. East, 5 Yerg. 41. See also Hartman v. Kendall, 4 Ind. 403: Wallace’s Lessee v. Lewis, 4 Harr. (Del.) 80; Morris v. Stewart, 4 Ind. 334. But see De Mill v. Lock- wood, 3 Blatchf. C. C. R. 56. The subject of confirmation, however, is to be considered hereafter. Another class of cases lays down the rule that he must avoid his deed, if at all, within a reasonable time after attaining his majority.' See Hartman v. Kendall, 4 Ind. 403; Kline v. Beebe, Comm. 195. an intent not to rescind the contract. been ratified by every implied mode of affirmance. 101 6 Conn. 506 (see ante, p. 100) ; Bige- low v. Kinney, 3 Vt. 859; Richardson v. Boright, 9 Vt. 368; Scott v. Bu- chanan, 11 Humph. 476; Hastings v. Dollarhide, 24 Cal. 216; Wallace's Lessee v. Lewis, 4 Harr. (Del.) 80; Harris v. Cannon, 6 Geo. 388; 36 IIL. 380. See also Chapin v, Shafer, 49 N. Y. 412 (a mortgage of chattels) ; Rob- inson v. Weeks, 56 Me. 106 (an action to recover back money paid for stock) ; Little v. Duncan, 9 Rich. Law, 59; Summers v. Wilson, 2 Cold. 469; 30 Barb. 642. Of this second class of cases it may be observed that nearly all cite the case of Holmes v. Blogg, 8 Taunt. 35; 8. c. 1 Moore, 466; or subsequent cases de- cided on its authority, as authority in support of their positions; the rest seem to bave been somewhat influenced by equitable or other circumstances, as where the infant has stood by after ma- jority and seen valuable improvements made on the premises without dissent therefrom (see also Bostwick v. Allen, 3 Comst. 60); has retained and dis- posed of the consideration after major- ity, &. The English cases, however, seem to lay down the rule that the infant is Acquiescence merely, for an unreasonable time, is an act that denotes 1 Swift’s Dig. 58. The deed in question has The consideration note was held by Patty Bolles a year after her arrival at full age, and before her marriage; and by the plaintiff has been held ever since. During all this period, until the commence- ment of the plaintiff’s action, a profound silence was cbserved relative to the disaffirm- ance of the contract, and the defendant was permitted to remain in the unquestioned occupation of the land. These acts imply an affirmance of the deed, not unlike the holding possession of land leased or exchanged, and authorized the same inference. Besides, the omission to disaffirm alone, for eleven years, a period almost sufficient to give a title by possession, is an acquiescence in the conveyance amounting to a tacit affirmance.” Brarnarp, Lanman, arid Doccert, JJ., were of the same opinion. 1 This rule is established by statute in Iowa as to all contracts of infants. Rev. of 1860, § 2540, Wright v. Germain, 21 Iowa, 585; Stucker v. Yoder, 83 Iowa, 177; and what will be considered a reasonable time, both under this statute and at com- mon law, must be determined in each case by its peculiar circumstances. Jenkins v. Jenkins, 12 Iowa, 195; Stout v. Merrill, 85 Iowa, 56; Scott v. Buchanan, 11 Humph. 476 ; Hastings v. Dollarhide, 24 Cal. 195; Wallace’s Lessee v. Lewis, 4 Harr. (Del.) 80; State v. Plaisted, 438 N. H. 414, and cases there cited. 102 bonnd expressly to repudiate his con- tracts within a reasonable time after arriving at majority, and that if he neglect so to do his silence will amount to an affirmance. See Dublin & Wicklow Railway Co. v. Black, 16 Eng. Law & Eq. R. 556 and note; + 22 Law J. R. (v. 8.) Exch. 94; 8 Exch. 181; Holmes v. Blogg, (supra) ; North Western Railway. v. McMichael, 5 Exch. 114; Leeds & Thirsk Railway v. Fearnley, 4 Exch. 26; Cork, &e. Railway Co. v. Cazenove, 10 Q. B. 935 ; 1 Story on Contracts (4th ed.) p. 119, § 72a. None of these cases, however, are cases of deeds executed by infants; but all (except Holmes v. Blogg, which as to this point is a mere dictum) are actions for calls upon railway shares, and seem to have been decided upon the point that the infant cannot remain a shareholder, cannot keep the interest and prevent the company from having it and dealing with it as their own, with- out being liable to bear the burden at- tached to it; N. W. Rail. Co. v. Mc- v a? INFANCY. Michael (supra); See also Robinson v. Weeks, 56 Me. 106 (an action to recover back money paid for stock) ; In re Constantinople & Alexandria Hotel Co., Ebbett’s Case, L. R. 5 Ch. 302; and hence are to be distinguished from the cases of deeds executed by infants. The more reasonable opinion, and that supported by the weight of author- ity, seems to be that, in cases of deeds executed by infants, mere acquiescence, short of the period of limitation and not accompanied by circumstances ren- dering it inequitable to adopt the rule in question and manifesting a clear in- tention to be bound by the conveyance, will not operate as an affirmance of such deed. See the rule well stated by Curistiancy, J., in Proutv. Wiley, 28 Mich. 167. See the subject of con- firmation discussed (post) in note to Hale v. Gerrish. As to the avoidance of judgments against infants, see Sliver v. Shelback, and notes to Mills ». Dennis (post). MeEpsBurY v. WATROUS. (7 Hill, 110. Supreme Court of New York, January, 1845.) Rights and Remedies of Infants upon Avoidance of their Contracts. — Where an infant enters into a contract for the purchase of property, and performs work in part payment of the price, but avoids the contract on arriving-at full age, without having received any thing under it, he may recover for the work on the quantum merutt. The case of McCoy v. Huffman, 8 Cowen, 84, reconsidered and overruled. On error from the Oneida Common Pleas. Watrous sued Med- bury before a justice of the peace, and declared for work, labor, and services. On the trial it appeared that the plaintiff had worked for the, defendant, and that the value of the work was seventy dollars and twenty cents. The defendant proved that the work was done in part perform- 1 The authorities are very fully collected in this note, which see (post), in notes to Hale v, Gerrish. MEDBURY v. WATROUS. 103 ance of a covenant, by which he agreed to sell and convey to the plaintiff a certain house and lot for six hundred dollars, one hundred and fifty dollars of which was to be paid in work. The covenant was entered into and the work performed in 1842, while the plaintiff was ay infant, and this suit was commenced in 1848, after he became of age. The justice rendered judgment against the plaintiff, which was reversed by the common pleas on certiorari, and the defendant brought error. T. H. Flandrau, for the plaintiff in error, cited McCoy »v. Huffman, 8 Cowen, 84. G. F. Fowler, for the defendant in error. By the Court. Burarpstey, J. The plaintiff (Watrous), while a minor, performed work and labor for the defendant to the amount of more than seventy dollars. The work was done in part performance of a contract, by which the defendant agreed to sell and convey to the plaintiff a certain house and lot for six hundred dollars, to be paid in labor and money. Upon this contract the plaintiff did work to the amount stated, but it does not appear that he took possession of the house or lot, or in any manner occupied or used either. On arriving at mature age he abandoned the contract, and brought this action to recover compensation for the work and labor. It must be admitted that the case of McCoy v. Huffman, 8 Cowen, 84, is directly in point to show that the plaintiff cannot recover. In that case the infant made a contract for the purchase of land, upon which he paid money and performed labor; but he disaffirmed the contract when he became of age, without having taken possession of the land, and brought his action to recover the money he had paid, and a compensation for his services. The Court held, however, that he could not recover; that “although the executory con- tracts of an infant are voidable by him at his election, yet, if he pay money on a contract made by him, though he avoid the con- tract on arriving at mature age, he cannot recover the money back.” If the principle of McCoy v. Huffman is law, it must control the present case. That case was professedly decided on the authority of Holmes v. Blogg, 8 Taunt. 508, and a dictum of Lord MansFIELD, which, in-its terms, is: quite too general, in my estimation, to be relied upon as a satisfactory authority for any purpose. Chief Justice 104 INFANCY. SAVAGE seems to have regarded the principle of McCoy v. Huff- man as “ expressly adjudged” in Holmes »v. Blogg; but he cer- tainly overlooked an important fact in which these cases differ. The case of Holmes v. Blogg was this: Holmes, an infant, was a partner with one Taylor; and, in order to carry on their busi- ness, they took a lease of certain premises from the defendant Blogg. On the execution of the lease, Holmes paid down one hundred and fifty-seven pounds, and the copartners took pos- session of the premises demised, which they continued to occupy until Holmes became of age, when he dissolved the copartner- ship, quit the premises, and brought his action to recover the sum he had paid to his landlord for the lease. And this fact, viz., that the infant had occupied and used the premises for which the money was paid, distinguishes that case from McCoy v. Huff- man. Chief Justice Grsss, in delivering the opinion of the Court, said: ‘What is the point here? That an infant having paid money on a valuable consideration, and having partially enjoyed the consideration, seeks to recover it back.” This was, indeed, the turning point in the cause, and so it was understood by the same Court in Corpe v. Overton (10 Bing. 252). In that case, Corpe, the plaintiff, while a minor, agreed to enter into partner- ship with the defendant, and to execute a partnership deed when he became of age, with the usual covenants. By way of securing the due fulfilment of this agreement, one hundred pounds were paid down by the plaintiff, to be forfeited if he failed to perform. The. arrangement was not completed ; and the infant rescinded the contract, and brought his action to recover the money paid. On the trial, the jury found that the plaintiff had paid the one hundred pounds on a fraudulent representation, and gave their verdict in his favor for that sum. A motion for a new trial was made on the ground that the find- ing of fraud was contrary to the evidence ; and that, if the trans- action was bond fide, the plaintiff could not recover, for which Holmes v. Blogg was cited. Trinpau, C. J., said: “I think we may arrive at a right determination of this case with- out impeaching the decision in Holmes v. Blogg, because the facts of the two cases are manifestly distinguishable. In Holmes v. Blogg, the infant had paid 157/. as his share of the consider- ation for a lease of premises, in which he and his partner carried on the business of shoemaking. They occupied the premises MEDBURY v. WATROUS. 105 from March till June, when the infant coming of age, dissolved the partnership, relinquished the business, and sought to recover back the money he had paid the lessor for his lease.” ‘The ground, therefore, of the judgment in Holmes v. Blogg was, that the infant had received something of value for the money he had paid, and that he could not put the defendant in the same posi- tion as before. In the present case, the plaintiff has paid to Overton 100/., for which he has not received the slightest con- sideration.” ‘As it is plain, therefore, that the infant had a right to rescind the contract, the only point we have to look to with reference to Holmes v. Blogg is, whether he had derived any intermediate advantage from it. Now the partnership was not to be entered into till January, 1833; and in the mean while, the infant had derived no advantage whatever from the contract. The case of Holmes v. Blogg fails on that ground as an authority in point.”” The other judges concurred, and expressed themselves to the like effect as to the case of Holmes v. Blogg. - I think I am, therefore, fully justified in the conclusion that the decision in McCoy v. Huffman is not sustained by the case of Holmes v. Blogg, and that it is in direct conflict with Corpe v. Overton. The latter, it seems to me, is sound in principle, and in harmony with the general rules of law relating to the rights of infants. Where an infant executes a conveyance of his real estate, he may avoid it on coming of age, and recover by action what he has thus conveyed. Bool v. Mix, 17 Wend..129 to 133; Tucker v. Morelands 10 Peters, 58. So where an infant sells his per- sonal property and delivers it to the purchaser, he may, notwith- standing, avoid the sale, and bring an action for the thing sold. Roof v. Stafford, 7 Cowen, 179; s. c. 9 id. 626; Fonda v. Van Horne, 15 Wend. 635. ; And where work and labor have been done on a contract, which the infant afterward avoids, as he has a right to do, why should he not recover a reasonable compensation for his services ? Bosanguet, J., in Corpe v. Overton, said: “It is a general rule, that, upon an entire failure of consideration, a party is entitled to recover back money paid, and it cannot be said that in this respect an infant is in a worse situation than others. Here the infant has derived no benefit whatever from the con- tract, the consideration of which has wholly failed. It has been 106 INFANCY. urged, indeed, that it failed by the act of the plaintiff himself; but, if the law allows him to rescind a contract from which he has derived no benefit, he must be allowed to rescind it to all intents and purposes, and, if so, for the purpose of recovering money paid without consideration.” These views are strictly applicable to the present case, and in my opinion are correct in principle. ‘If an infant,” says Chancellor Kent, ‘‘ pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid.” ? ' 2 Kent’s Comm. 240, 5th ed.; see also Chitty on Cont. 149, 579, and note (1) (5th Am. ed.); Austen v. Gervas, Hob. 77; Vent v. Osgood, 19 Pick. 572; Moses v. Stevens, 2 id. 332; Thomas v. Dike, 11 Verm. 273; Baker v. Lovett, 6 Mass. 78; Willis v. Twambly, 13 id. 204; Roof v. Stafford, T Cowen, 179; s. c. 9 id. 626; Fonda v. Van Horne, 15 Wend. 631; Millard v. Hew- lett, 19 id. 301; Macpherson on Inf. 488. But the rule is other- wise where the infant has not derived any benefit from his contract; for then he may avoid it, and recover back what he has paid. There is one English case, and I know of but one, in conform- ity with McCoy v. Huffman, and that is Wilson v. Kearse, Peake’s Add. Cas. 196. It is thus stated and commented on by Mr. Macpherson in his valuable treatise on the law relating to infants. ‘ The plaintiff, being an infant, contracted with the defendant to purchase the good-will and stock of a public-house, and made a deposit. Be- ing afterward called upon to complete his contract; he refused, and brought an action to recover his deposit. Lord Kenyon is stated to have been of opinion, that, though an infant was not compellable to complete a contract, yet, when he had paid money under it, he could not recover it back, unless he could show that fraud had been practised on him. This case (unless there had been some enjoyment under the contract) must be con- sidered as overruled by Corpe v. Overton, in which the Court lay down the law quite independently of fraud.’? Macpherson on Inf. 409, note (6). The case of McCoy v. Huffman was de- cided in 1827. It was followed by the Superior Court of New Hampshire in 1831, Weeks v. Leighton, 5 N. Hamp. 343; and by the Supreme Court of Indiana in 1837. Harney v. Owen, 1 See Price ». Furman, and notes (post, p. 119). WHITMARSH v. HALL. 107 4 Blackf. 837. If these cases have failed to convince me that they were based on a correct principle, they certainly have led to great caution in coming to an opposite result. In Holmes »v. Blogg, it was not shown what had been the value of the use of the premises demised, while the infant remained in possession. If that was less than the sum paid by him, it may well be that he ought to have recovered the difference. When such a ques- tion shall arise the case of Vent v. Osgood, 19 Pick. 572, will deserve especial consideration. I think the judgment of the common pleas should be affirmed. Judgment affirmed. See next case and notes. WHitmarsH v. HALL. (3 Denio, 375. Supreme Court of New York, October, 1846.) Rights and Remedies of Infants upon the Avoidance of their Contracts.—In an action by an infant, to recover for work and labor, it is neither a defence nor a ground for reducing the amount of the recovery, that the work was done under a contract by the infant to labor for the defendant for a fixed period of time, which he violated by leaving the defendant’s employ without cause, before the term had expired. Error to the Onondaga Common Pleas. Hall, an infant, by his next friend, sued L. and J. Whitmarsh for work and labor. It was proved that the plaintiff had worked for the defendants. half a month under a contract to labor for them for a certain longer period of time, and had left without cause. After the plaintiff had proved the value of the labor, the de- fendants proposed to ask a witness what the plaintiff’s services were worth, taking into consideration the damages they had sus- tained in consequence of his not fulfilling his agreement. The justice refused to receive this evidence, on the ground that the plaintiff was not, on account of his infancy, bound by his contract ; and gave judgment for the plaintiff, which the Common Pleas affirmed on certiorari. R. H. Duell, for the plaintiffs in error. D. Gott, for the defendant in error. 108 INFANCY. By the Court. Jnwert, J. The evidence offered by the defendants, to show the value of the plaintiff’s services, taking into consideration such damages as they had sustained in conse- quence of his putting an end to the contract by voluntarily refusing to fulfil it on his part, was properly rejected by the justice. This contract was voidable by the plaintiff by reason of his infancy, according to the general rule of law, that the contracts of infants, with certain exceptions which do not embrace this case, may be avoided by them either before or after they arrive at full age. 2 Kent’s Com. 237 (5th ed.). There is no case where it has been held that an executory contract, by an infant, not being for necessaries, is obligatory upon him. The plaintiff here has put an end to, and avoided his contract with the defendants, by voluntarily leaving their service and bringing this suit to recover the value of his services. It is insisted on the part of the defendants that the justice erred in rejecting the evidence offered by them on the ground that, although the plaintiff was an infant and had a right to avoid his contract and recover the value of his services, yet that the de- fendants were entitled, if they had sustained an injury by such avoidance, to have a proper allowance therefor made against such value. In other words, it is claimed that the defendants are entitled, as a set-off against the value of the plaintiff’s services, such sum as is equal to the amount of the injury sustained by them, by the avoidance of the contract by the plaintiff, which in effect would charge the infant with the performance of his contract, or with damages for its violation. The proposition is not sustained by any elementary principle known to the law, and I do not find that it has been recognized by any adjudged case, unless by that of Moses v. Stevens, 2 Pick. 332. In that case, the plaintiff, an infant, had made a special agreement to labor for the defendant a certain time for certain wages, and, before the time expired, left his service voluntarily without cause. It was held that he might recover on a quantum meruit for the services performed, and, if his employer was injured by the sudden termination of the con- tract without notice, a deduction should be made on that account. The learned judge, in delivering the opinion of the Court, said: ‘We think the special contract’ being avoided, an indebitatus WHITMARSH ¥. HALL. 109 assumpsit, upon a quantum meruit lies, as it would if no contract had been made; and no injustice will be done, because the jury will give no more than, under all circumstances, the services were worth, making any allowance for any disappointment amounting to an injury which the defendant in such case would sustain by the avoidance of the contract.” With great respect, I am unable to yield my assent to the soundness of the qualification annexed to the proposition. I think that the infant. plaintiff; in such an action, is entitled, by well-settled principles of law, to recover such sum for his services as he would be entitled to if there had been no express contract made. A recovery is allowed upon the assumption that there is no express contract at all. The judgment under review is therefore correct. Special contracts for labor and ser- vice entered into by minors are void- able. Clark v. Goddard, 39 Ala. 164; Harney v. Owen, 4 Blackf. 337; State v. Dimick, 12 N. H. 194: Vent v. Os- good, 19 Pick. 572. And it is well settled that, on their being disaffirmed by the minor, he may recover the value of his services under the quantum meruit, the same as if no special contract had beenmade.' See, besides the principal cases, Lufkin v. Mayall, 25 N. HU. 82 (overruling Weeks v. Leighton, 5 N. H. 343); Vent v. Osgood (supra) ; Moses v. Stevens, 2 Pick. 332; Thomas »v. Dike, 11 Vt. 273; Judkins v. Walker, 1? Me. 38; Derocher v. Continental Mills, 58 Me. 217: Dallas v. Hollings- worth, 3 Ind. 537 (overruling on this point, Harney v. Owen, supra) ; Wheat- ly v, Miscal, 5 Ind. 142; Van Pelt v. Corwine, 6 Ind. 364; Garner’s Adm'r v. Board, 27 Ind. 324; Merédith v. Craw- ford, 34 Ind. 399; Ray v. Haines, 52 Ill. 485; Lowe v. Sinklear, 27 Mo. 308; Gaffney v. Hayden, 110 Mass. 187; Hoxie v. Lincoln, 25 Vt. 206. See Judgment affirmed. also Abel v. Warren, 4 Vt. 149. See, however, Dunton v. Brown, 30 Mich. The case of Holmes v. Blogg, 8 Taunt. 508 ; s.c. 2 Moore, 552 (post, p. 111), laying down the rule that ‘‘if an infant ' pays money with his own hand, without a valuable consideration for it, he can- not get it back again,” the case being the payment of*moncy as a premium for a lease, which, after enjoying for a short period during infancy, he avoided at majority, and in which the Court say: ‘* He may, it is true, avoid the lease; he may escape the burden of the rent, and avoid the covenants; but that is all he can do. He cannot, by putting an end to the lease, recover back any con- sideration which he has paid for it; the law does not enable him to do that;” which case was relied on as an author- ity for the earlier cases, in opposition to the doctrine above stated in the prin- cipal cases, so far as it supports the contrary doctrine, has been overruled. See the above cited cases, and Corpe v. Overton, 10 Bing. 252 (post, p. 114), where it was held that the plaintiff 1 But the defendant may set off against'the amount so recovered the reasonable value of necessaries furnished the plaintiff during the period of such service, such as food, clothing, schooling, &e. Meredith v. Crawford, 34 Ind. 899. See also Locke v Smith, 41 N, H. 858; Squier v. Hydliff, 9 Mich. 274; Stone v. Dennison, 18 Pick. 1. 110 might recover back, in an action for money had and received, a sum which, while an infant, he had paid in ad- vance towards a share in defendant’s trade, to be retained by defendant as a forfeiture, if plaintiff failed to enter into partnership with the defendant; which contract the plaintiff disaffirmed on arriving at majority, and refused to execute the partnership deed. This case was distinguished by the Court from Holmes v. Blogg in this, — that in Holmes v. Blogg, the plaintiff had en- joyed the premises for three months, and the plaintiff could not put the les- sor in statu quo; but in this case the infant had derived no benefit whatever from the contract. This subject is fur- ther considered hereafter in the notes to Price v. Furman (post, p. 119). So, though where an adult resides with another as a member of his fam- ily, receiving support and attention as such, and rendering service in re- turn, without any agreement or under- standing as to compensation, there is no implied contract to pay for such services; yet this rule is held not to apply to infants, who, as they may avoid their special contracts and recover the reasonable value of their labor, are not bound by any implied contract growing out of such relations. But, in estimating the amount of compensation to be allowed in such case, the jury may consider the circumstances under which the services were rendered. Garner’s Adin’r v. Board, 27 Ind. 823. But see Mountain v. Fisher, 22 Wisc. 93, where no distinction was made between the case of adults and infants in such cir- cumstances. So on disaffirming a title bond given by an infant on the sale of his real es- tate, an action of indebitatus assumpsit for use and occupation lies; but in such action the vendee may recoup for valuable improvements erected by him on the land, and which gave to the land its principal yearly value. Weaver v. Jones, 24 Ala. 420. In Moses ». Stevens (supra), Par- INFANCY. xer, C. J., in delivering the opinion of the Court, used this language: ‘©Is there any implied promise to pay in a manner different from the provisions of such contract? We think, the special contract being avoided, an indebitatus assumpsit upon a quantum meruit lies, as it would if no con- tract had been made; and no injustice will be done, because the jury will give no more than under all circumstances the services were worth, making any allowance for any disappointment, amounting to an injury, which the de- fendant in such case would sustain by the avoiding of the contract. This is the ground taken by the Court of Common Pleas at the trial. We think it both reasonable and lawful; so thaty the judgment ought to be affirmed.” In the Court below, the jury were in- structed, among other things, ‘‘ to con- sider what the services of the plaintiff were worth to defendant, and that, if defendant was injured by the sud- den determination of the services with- out notice, they might make a deduc- tion on that account; but that, as the plaintiff was an infant at the time when the special contract was made, that con- tract could not be set up as a bar to a recovery in this action, and as the con- tract was voidable by the infant and no damages could be recovered from him for not fulfilling it, the jury ought not to make any deduction from the sum which the plaintiff would otherwise be entitled to, on account of his breach of this contract, in leaving the defendant before he was of age.” This qualifica- tion of the general doctrine does not seem to have been alluded to again in the subsequent cases of that State. In Thomas v. Dike (supra), in approv- ing this dictum, the Court say per Wiuuiams, C. J.: ‘+The Court are inclined to adopt this rule, and al- though I have great doubt whether it is not infringing the general rule of law on the subject of contracts with infants, yet I more readily yield my assent to this course on principles of policy, when HOLMES ¥v. BLOGG. I reflect that so many minors are eman- cipated by their parents, by giving them their time,” &e. ‘It would be unsafe for community unless some such princi- ple were adopted.” This case was fol- lowed and the distinction approved in Hoxie v. Lincoln (supra). See also Forsyth v. Hastings, 27 Vt. 649. In Lowe v. Sinklear (supra), it is stated that the defendant, if he was a minor, had a right to avoid the special agree- ment and to recover a reasonable com- pensation for the work which he did, after allowing for any injury the plain- tiff sustained by the avoiding of the con- tract.” With respect to this distinction, it may be said that, in so far as it allows the injury to the adult by reason of the 111 infant’s exercising his undoubted right of avoiding his special contract to be taken into consideration in estimating the value of the infant’s services, it seems illogical and contradictory, in that it at one and the same time permits the contract to be avoided for the sake of allowing a recovery by the infant upon the quantum meruit, and at the same time in effect permits the contract to prevail so far as to reduce the amount to be recovered by ‘‘ making any allow- ance for any disappointment amounting to an injury which the defendant in such case would sustain by the avoiding of the contract.” The distinction is con- demned in Whitmarsh v. Hall (supra). See also Tyler on Inf. & Cov. § 39, p. 80. Houmes v. Bioae. (8 Taunt. 508; s. c. 2 Moore, 552. Court of Common Pleas, June 10, 1818.) Rights and Remedies of Infants upon Avoidance of their Contracts. — If an infant pays money with his own hand without a valuable consideration, he cannot get it back again. Therefore, where an infant paid money to A., as a premium -for a lease, and enjoyed the same for a short period during his infancy, but avoided it after he became of age, and quitted the premises: held, that he could not recover the sum so paid, in an action against A. for money had and received, Assumpsit by the plaintiff to recover 157/. 10s. paid by him during his infancy to the defendant. Plea, general issue. At the trial before Burroucu, J., at the London sittings after last Michaelmas Term, in addition to the facts stated when this case was before the Court in Hilary term last,” it appeared that when the arrangement with Taylor was entered into by the defendant, the plaintiff was not in business, having quitted it when he be- came of age, and that, in a subsequent conversation between the 1 See, however, as to this point, Medbury v. Watrous, and Whitmarsh v. Hall (ante, p. 102 et seg., and notes). 2 8 Taunt. 35. 112 : INFANCY. plaintiff and Taylor respecting the lease, the former declined having any thing to do with it; that the plaintiff had never slept in the house after he became of age, and that his name was soon afterwards taken off the door. For the defendant it was contended that, under these circumstances, the plaintiff could not recover. Burroveu, J., was of the opinion that the action was well brought, but reserved the point. The jury found for the plain- tiff; and, in Hilary term last, * Copley, Sergt., obtained a rule nisi to set aside this verdict, on the ground that there had been no disaffirmance of the con- tract; and that the sum sought to be recovered, having been paid on the joint account of the plaintiff and Taylor, this action by the plaintiff could not be maintained. Best, Sergt., in the last term showed cause, and made two points: first, that, if disaffirmance were necessary, the plaintiff, upon coming of age, had disaffirmed the contract. Second, that disaffirmance was not necessary ; and that infants were not bound by any contract unless there were affrmance by them after coming to full age. In addition to the cases cited in favor of the plain- tiff on the former discussion, the following authorities were relied on in support of. these points. Com. Dig. tit. ** Enfant,” C. 2; Smith v. Low, 1 Atk. 489; Nightingale v. Earl Ferrars, 3 Peere Wms. 206; Lit. sect. 258.. Copley, in support of the rule, argued on the point of the plaintiff ’s liability for rent to the same effect, in substance, as he did in showing cause on the former occasion, referring in addi- tion to Com. Dig. tit. “ Enfant,’ C. 3, and urged that, as the payment made was a partnership payment, the plaintiff’s remedy was against Taylor for contribution, but that he could not re- cover the money so paid in the present action. Cur. adv. vult. And now Gisss, C. J., delivered the judgment of the Court. This was an action by Holmes against Blogg for money had and received; and the ground on which the plaintiff sought to recover is founded on the following facts. Holmes, an infant, together with Taylor, had agreed with the defendant to take the lease of his house, and to pay to him a certain sum of money for that lease. Part of the money was paid down, and security was given for the residue. HOLMES ¥v. BLOGG. 113 In point of fact, the money paid was the money of Holmes, at that time an infant. The infant avoided the lease when he came of age, as he had a right to do; and, having avoided the lease, he brought this action for the money paid to the defendant, on the ground that the consideration having failed, he was en- titled to recover it. There has been a good deal of argument on the subject of this avoidance, and, indeed, it has been treated as the main question ; but another question arises; namely, whether, supposing the lease to have been avoided, the plaintiff could recover the money which he has paid for it during his infancy. I confess this action is quite new to me, and I thought, on prin- ciple, that it could not be maintained. I thought, too, that there was much in my brother CopLry’s argument, that the money paid could not be taken to be the money of the infant alone, but that it must be taken to be joint money of the infant and Taylor; and that, if it was paid as their joint money, it would be money advanced by Holmes in the first instance to the partnership of Holmes & Taylor, and then paid as partnership money by them to Blogg. But I think further, that, supposing this money to be the sole property of the infant, he cannot recover. He may, it is true, avoid the lease; he may escape the burthen of the rent, and avoid the covenants; but that is all he can do. He cannot, by putting an end to the lease, recover back any con- sideration which he has paid for it: the law does not enable him to do that. I cannot find this decided, for I cannot find that any such action as this has ever been brought; but Lord Mans- FIELD has incidentally said that such an action cannot be brought. In the famous case of Drury v. Drury, 2 Eden, 39, one of the questions was whether an infant could, by contract, bar her dower. Lord Norrutneron thought that statute applied only to adults; and the marriage of Lady Drury with the Earl of Buckinghamshire took place on his opinion; but the case after- wards came before the House of Lords upon appeal, under the name of The Earl of Buckinghamshire v. Drury, Wilmot’s Notes of Opinions and Judgments, 177; s. c. 8 Brown’s Parl. Cas. 492 (2d ed.) ; s. c. 2 Eden, 60, when the decree of Lord NortHINGTON as to this point was reversed. Lord MansrieLp there said, in delivering his opinion, “If an infant pays money with his own 8 114 INFANCY. hand, without a valuable consideration for it, he cannot get it back again.” 2 Eden, 72. What is the point here? That an infant, having paid money on a valuable consideration, and having partially enjoyed the consideration, seeks to receive it back. But the authority does not altogether stop here. In Lord Chief Justice Wilmot’s Notes of Opinions and Judgments, 226, it appears that Lord Harpwicxe and Lord MANSFIELD were of opinion with the majority of the judges; in which majority the learned author, then Mr. Justice WitmotT, was. His note of Lord MansFIELD’s judgment on this point is in these words: ‘If an infant pays money with his own hand, without‘a valuable con- sideration, he cannot get it back again.”” Wilmot’s Notes,-226 n. So that Lord Chief Justice WiLmot had himself taken a note of this declaration of Lord Mansriep, and laid it up among his memoranda, without any expression of disapprobation. He must, therefore, be taken to have adopted it. We, therefore, think that this action cannot be maintained, upon the ground that the infant, having paid the money with his own hand, cannot recover it back again. The other ground taken by my brother Cop.ey, namely, that this was the money of the partnership, my brother Burrovueu tells me, was not taken at nisi prius. We do not, therefore, decide on that ground. Rule absolute for a nonsuit. Datias, J., who was absent on account of illness, concurred in this judgment. x relatione Gisss, C. J. See the next two cases and notes. CorPE v. OVERTON. (10 Bing. 252. Court of Common Pleas, Nov. 7, 1833.) Rights and Remedies of Infants upon Avoidance of their Contracts. — Held, that the plaintiff might recover back, in an action for money had and received, a sum which, while an infant, he had paid in advance towards a share in defendant’s trade, to be retained by defendant as a forfeiture, if plaintiff failed to enter into partnership with the defendant. CORPE v. OVERTON. 115 Tue plaintiff, while yet a minor, in October, 1832, signed a written agreement to enter into partnership with the defendant, a tailor; to pay him 1,000/. for a share of the business; and on the Ist of January, 1833, to execute partnership deed with the usual covenants; ‘‘and as a deposit for the due fulfilment of the same on the part of the said A. R. Corpe, the sum of 1001. is now paid to the said W. Overton as per receipt, on the condi- tion of the same sum of 1007. being deducted from the amount of the said intended purchase, or otherwise in default of the said intended purchase not being duly completed by the said A. R. Corpe according to the aforesaid terms, the said sum of 1001. shall be forfeited to the said W. Overton; and he, the said W. Overton, shall be subject to no claim or demand whatever from any person or persons for the sum of 100/., or any other amount, unless any disagreement should arise between the creditors of the said W. Overton and himself, so as to prevent the fulfilment of the said intended partnership; then, and in that case only, the said A. R. Corpe shall not be actually held liable to forfeit the said sum of 100/.; but such point to be decided by two arbi- trators, one chosen by each said party.” The plaintiff, after depositing the 100/., as recited in the above agreement, discovered that he had been imposed upon by ex- aggerated representations as to the value of the defendant’s busi- ness; he, therefore, rescinded the contract as soon as he came of age; refused to execute the partnership deed, and brought an ac- tion against the defendant for 1007. had and received by him to the plaintiff's use. At the trial before Aperson, J., the jury found that the plaintiff had paid the deposit on a fraudulent representation in the defendant’s balance sheet, and gave their verdict for the plaintiff, damages 1001. Goulburn, Serjt., obtained a rule nist to set aside this ver- dict and to enter a nonsuit, or to proceed to a new trial, on the ground that the finding of fraud was contrary to the evidence ; and that, if the transaction was bond fide, the defendant was en- titled to retain the money. In Holmes v. Blogg,,8 Taunt. 508 [next case ante], it was expressly decided that if an infant pay money with his own hand, he cannot get it back again, although it were paid without a valuable consideration. 116 INFANCY. Coleridge, Sergt., showed cause. Even if the transaction were bond fide, the defendant has no right to retain the money. First, because it was paid by an infant in pursuance of an agreement to enter into trade; and an infant not being competent to incur the liabilities of trade, the plaintiff had a right to avoid such a contract. When the con- tract was avoided, the money was held by the defendant without consideration, and might be recovered in assumpsit for money had and received. Austen v. Gervas, Hob. 77; Perk. sect. 12; Grants; Zouch v. Parsons, 3 Burr. 1794 [ante, p. 3]; Vin. Abr. Infant (D). Secondly, because the payment made by the plaintiff is in the nature of a penalty for non-performance of a contract, and an infant is not liable to a penalty. Fisher v. Mowbry, 8 East, 330. In Holmes v. Blogg, Giszs, C. J., dropped certain general expressions which may appear adverse to the plaintiff’s claim in this action; but those expressions must be taken with reference to the facts then before the Court. The infant sought to recover money which he had paid as a premium upon a lease under which he had for some months enjoyed cer- tain premises demised to him and another; he had, therefore, received a consideration for his money, and it would have been impossible to place the defendant in the same situation as before the contract. Here the plaintiff has received no consideration, and the defendant has sustained no injury. Goulburn, in support of his rule, relied upon Holmes v. Blogg. Tinpa, C. J. I think we may arrive at a right determination of this case without impeaching the decision in Holmes v. Blogg, because the facts of the two cases are manifestly distinguishable. In Holmes v. Blogg the infant had paid 157/. as his share of the consideration for a lease of premises in which he and his partner carried on the business of shoemaking. They occupied the premises from March till June, when the infant, coming of age, dissolved the partnership, relinquished the business, and sought to recover back the money he had paid the lessor for his lease. In that case, therefore, the sum of money sought to be recovered back, as having been paid without consideration, appeared to have been paid for something available; that is, for three months’ enjoy- ment of the premises let to him and his partner; and the plaintiff could not put the lessor again into the same situation. And though several expressions are dropped by the chief justice in CORPE v. OVERTON. 117 delivering his judgment, yet, when he comes to apply them to the subject before the Court, he gives them a less extensive latitude. After referring to the opinion of Lord MansriEtp, he goes on: “ What is the point here? That an infant having. paid money on a valuable consideration, and having partially enjoyed the con- sideration, seeks to receive it back.” The ground, therefore, of the judgment in Holmes v. Blogg was, that the infant had received something of value for the money he had paid, and that he could not put the defendant in the same position as before. In the present case, the plaintiff has paid to Overton 1001., for which he has not received the slightest consideration. The money was paid, either with a view to a present or a future partnership. I understand it as having been paid with a view to a future partnership. In order to ensure performance of the contract, the infant paid down 100/., which he was to forfeit in case of refusal to proceed. When he came of age, he declared that be. had rescinded the contract; and it seems to me that he had a right to do so. From Hill and Whittington’s Case, Dy. 104, note, to Whywall v. Champion, Str. 1083, it has been always held, that an infant cannot incur liability by carrying on trade. If he cannot trade, a contract to enter into trade is one which he may avoid when he comes of age. Now, when he rescinds such a contract, he has a right to rescind the whole of it ; and one of the terms of the contract in question being that he should pay down 1000., if we were to determine that he has a right to rescind the contract and yet not to recover the money paid in advance, the protection which the law extends to an infant might be altogether eluded by allowing the other party to retain money so paid in advance. As it is plain, therefore, that the infant had a right to rescind the contract, the only point we have to look to with reference to Holmes v. Blogg is, whether he had derived any intermediate advantage from it. Now the partnership was not to be entered into till January, 1833; and, in the mean while, the infant had derived no advantage whatever from the contract. The case of Holmes v. Blogg fails on that ground as an authority in point. But there is another ground on which the plaintiff is entitled to recover in this action. According to the old law, as laid down in Co. Lit. 172 a, an infant is not bound by any forfeit- ure annexed to a contract, and his obligation with a penalty, 118 INFANCY. even for necessaries, is absolutely void! What is this pay- ment, in effect, but a sum handed over by way of penalty? The principle which exempts an infant from a penalty must extend as well to a penalty enforced by handing over money in advance, as to penalties accruing on the breach of a condition ; and the rule which has been obtained in this case must, therefore, be discharged. GasELEE, J. I consider the present case as clearly distinguish- able from Holmes v. Blogg, otherwise I should be slow to decide that the rule ought to be discharged. Bosanquet, J. Iam also of opinion that this rule ought to be discharged ; but we are far from impeaching the judgment of the Court in Holmes v. Blogg, as applicable to the facts of that case. There the infant had paid a sum of money as part of the consideration for a lease of premises in which he carried on business with a partner. The premises were, in fact, occupied for twelve weeks; but, if they had been occupied for any other period, there would have been no difference in principle, and the plaintiff could not recover back sums from the outlay of which he had derived an advantage. There is no reason, therefore, for finding fault with that decision. It is, however, a general rule, that, upon an entire failure of consideration, a party is entitled to recover back money paid, and it cannot be said that in this respect an infant is in a worse situation than others. Here, the infant has derived no benefit whatever from the contract, the consideration of which has wholly failed. It has been urged, indeed, that, it failed by the act of the plaintiff himself; but if the law allows him to rescind a con- tract from which he has derived no benefit, he must be allowed to rescind it to all intents and purposes, and, if so, for the purpose of recovering money paid without consideration. It is true that there are strong expressions in Holmes v. Blogg ; and, if they are to be taken ad literam, they may seem to contravene the opinion Wwe are now pronouncing. We must look, however, not to the expressions alone, but to the facts to which they were applied : for general expressions must often be qualified by reference to the circumstances which have called them forth ; the benefit received by the infant for a certain period afforded a solid ground for the 1 See, however, ante, p. 52, notes to Holt v. Ward Clarencieux, and the case of Mustard v. Wohlford’s Heirs (post, p. 142). PRICE v. FURMAN, 119 decision of that case, and no such ground exists in the present instance. The 1002. paid here was in the nature of a deposit ; money paid on a deposit may generally be recovered back where the contract goes off; and here the contract was deposited before the infant derived any benefit from it. If the payment is to be considered in the light of a forfeiture or penalty, the plaintiff is still more clearly entitled to recover it under the general law which exempts him from any such liability. ALDERSON, J. J am of the same opinion. The parties agree, in 1832, to enter into partnership in the following January, and 1007. was to be paid down, to be forfeited if the plaintiff should decline to perform his contract. Before the contract is performed, one of the parties revokes it, and remits the other to the same situation as if the contract had never been made. There is no ground, therefore, on which he can claim to retain money for the purpose of enforcing the execution of a contract which the law says an infant shall not enterinto. In this, the case is clearly distinguishable from Holmes v. Blogg. Here the infant has had no enjoyment of any advantage from the contract; in Holmes v. Blogg he had enjoyment, for a period, of premises demised to him; and, so far, was in the same situation as if he had paid for expensive clothes or other articles not necessary, and, after wearing them, had brought an action for the price. In such an action he could not be allowed to recover, although the tradesman, if unpaid, could not have enforced payment. Rule discharged. See next case and notes. Price v. FurRMAN. 6 (27 Vt. 268. Supreme Court of Vermont, February Term, 1855.) Right and Effect of Avoidance.1—If an infant avoids his contract, he must restore the consideration received by him, if in his possession and control ; but, if be has disposed of it during minority, so that he cannot restore it, he is not thereby deprived of his privilege of avoidance. And if he tenders back 1 See Mustard v. Woblford’s Heirs (post, p. 142). 120 INFANCY. the property received by him and avoids his contract respecting it, and demands the return of the consideration moving from him, and brings trover for such consideration, testimony that the property tendered back has depreciated in value is inadmissible either for the purpose of defeating a recovery or in mitigation of damages. Trover for a harness and a five-dollar bill. Plea, the general issue ; trial by the Court, March Term, 1854, — Pinrpont, Judge presiding. The plaintiff’s testimony tended to prove that, about the 1st of September, 1851, he let the defendant have a harness and a five-dollar bill, which at the trial could not be described or identified, in exchange for a mare of the defendant’s; that after a few weeks he returned the mare to the defendant, and demanded the harness and. five dollars; that the defendant refused to deliver either, or to take back the mare, and that there- upon he turned the mare loose into the highway and left her, and soon afterwards commenced this suit; and that at that time, and also at the time of the trial, he was a minor. The defendant offered to prove that said mare was worth much more than said harness and five dollars, and that said mare was more beneficial to the plaintiff than the property he exchanged for her, and that said trade was in every respect fair, and to the great advantage of the plaintiff; that the plaintiff took said mare home to his mother’s and worked her upon the farm, and drove her very hard for seven or eight weeks; and that when he returned her and demanded said harness and five dollars, said mare was worth less than half what she was when he received her; that she was very much reduced in flesh and otherwise injured by his treat- ment of her, and that, during said seven or eight weeks, the plain- tiff frequently expressed himself satisfied with said trade. The Court excluded this evidence, and rendered judgment for the plaintiff to recover the value of the harness only. Exceptions by the defendant. A. A. Nicholson, for the defendant. Edgerton and Allen, for the plaintiff. The opinion of the Court was delivered by — IsHAmM, J. The plaintiff has brought this action of trover to recover the value of a one-horse harness and five dollars in current money, which was given by him, then and still a minor, to the de- fendant in exchange for a mare. The plaintiff has offered to return the property he received, and has disaffirmed the contract, and has PRICE v. FURMAN, 121 now brought this action to recover the value of the property which he gave on that exchange. The County Court allowed a recovery for the harness, but disallowed the five dollars in money. No exception having been taken by the plaintiff for that matter, the case now rests upon the right of the plaintiff to recover for the harness. As a general rule, all contracts of an infant, whether executed or executory, if not for necessaries, may be avoided by him unless he has ratified them after arriving at full age. Abell v. Warren, 4 Vt. 149. The purchase of this horse was not a contract for necessaries ; and it is one of that character which may be avoided by the infant. It is immaterial whether the contract was advantageous for the plaintiff or not; it is his privilege to rescind it, and in that event it cannot be enforced. In cases of sales of land, it has been held, that an infant may enter under age, and hold and take the profits, but cannot conclusively avoid a conveyance till he is of age. Stafford v. Roof, 9 Cowen, 626; Bool v. Mix, 17 Wend. 120. Butcontracts relating to personal property may be avoided under age and immediately, and in many, if not most cases, must be exercised during that period, in order to afford the infant that protection which it has been the policy of the law to create in his behalf. Stafford v. Roof, 9 Cowen, 626; Shipman v. Horton, 17 Conn. 481; Willis v. Twambly, 13 Mass. 204; 1 Amer. Lead. Cas. 259. “ This right of the infant to avoid his contracts is an abso- lute and paramount right, superior to all equities of other persons, and may, therefore, be exercised against bond fide purchasers from the grantee, and that avoidance may be by any act clearly demon- strating a renunciation of the contract.” Vent v. Osgood, 19 Pick. 572; 1 Amer. Lead. Cas. 259. The consequences resulting from an avoidance of such a con- tract depend upon the circumstances of each particular case. On executory contracts, if the action is brought against the infant, he may interpose his non-age as a defence, and no recovery can be had against him, whether the action be in assumpsit, or ‘in case in form ex delicto. Morrill v. Aden, 19 Vt. 505; Jen- nings v. Rundall, 8 Term, 335. But if the contract is executed, and the action is brought by the infant to recover back the amount which he has paid, or the property which he has deliv- ered, more difficulties arise. In the case of Holmes v. Blogg, 8 Taunt. 508, it was held, that where an infant had paid money as 122 INFANCY. a premium for a lease, and enjoyed the same for a short period during his infancy, but avoided it after he became of age, he ... could not recover the sum so paid. Upon the authority of that case were decided the cases of M’Coy v. Huffman, 8 Cow. 84, and Weeks v. Leighton, 5 N. H. 348. But in Medbury v. Wat- rous, 7 Hill, 110, the case of M’Coy v. Huffman is expressly overruled ; and the case of Holmes v. Blogg, has been virtually overruled by the case of Corpe v. Overton, 10 Bing. 252. The doctrine is now well settled by the authorities, that, when a con- tract is avoided by an infant, he may recover back whatever he has paid or delivered on it. If services have been rendered he may recover, in quantum meruit, the value that his services have been upon the whole state of the case; if money or property has been paid or delivered, it can equally be recovered. Moses v. Stevens, 2 Pick. 332; Vent v. Osgood, 19 Pick. 572; Voorhees vy. Wait, 3 Green, 343 ; Judkins v. Walker, 17 Maine, 38 ; White- marsh v. Hall, 3 Denio, 373. But in all such cases, as a general rule, if the infant rescinds the contract and avoids his liability upon it, he must surrender the consideration, and return what he has received ; for it would be unjust to permit him to recover back what he has paid or delivered, and at the same time permit him to retain the fruits of the contract which he has received. Taft & Co. v. Pike, 14 Vt. 405; Walker v. Ferrin, 4 Vt. 528; Weed v. Beebe, 21 Vt. 495; Hillyer v. Bennett, 3 Edwards, Ch. 222; Kitchen v. Lee, 11 Paige, 107. . This rule, however, is sub- ject to an important qualification. A distinction is to be observed between the case of an infant in possession of such property after age, and when he has lost, sold, or destroyed the property during his minority. In the former case, if he has put the property out of his power, he has ratified the contract, and rendered it obli- gatory upon him; in the latter case the property is to be restored if it be in his possession and control. If the property is not in ‘his hands, nor under his control, that obligation ceases. To say that an infant cannot recover back his property which he has parted with under such circumstances, because by his indiscretion he has spent, consumed, or injured that which he received, would be making his want of discretion the means of binding him to all his improvident contracts, and deprive him of that protection which the law designed to secure to him. The authorities, we think, fully sustain this qualification of PRICE v. FURMAN. 123 that rule. Fitts ». Hall, 9 N. H. 441; Robbins v. Eaton, 10 N. -H. 562; Boody v. McKenney, 23 Maine, 517, 525, 526 ; 1 Amer. Lead. Cas. 260, in notes by Messrs. Hare & Wallace. On these general principles the plaintiff can sustain this action to recover the value of this harness, as there was an offer to return the property which was in his possession and under his control ; and this right is unaffected by the circumstance, that the mare was not in as good condition, or of the value, that it was when received by him. The evidence, therefore, showing that the mare had depreciated in value while in the plaintiff’s hands, was inadmissible for the purpose of defeating a recovery in this action, or for the purpose of reducing the damages. The infant is no more liable for the use, than he would be for the purchase, of the mare; particu- larly as there is nothing in the case showing that he was person- ally benefited by it, or that in any point of view it could be deemed necessaries for which he would be liable. of the County Court is affirmed. The effect of the disaffirmance of the contracts of infants may be considered in reference to (1) contracts executory on both sides; (2) contracts executed on one side only, — first, on the side of the infant, and second, of the adult ; (8) contracts executed, in whole or in part, on both sides. (1). Where the contract is wholly executory on both sides, a disaffirm- ance by the infant simply cancels the obligation of the contract, and leaves the parties where they were originally, both parties being free from all obliga- tion or liability under the contract. There is no doubt but that the infant may exercise his privilege of avoidance in all such cases. See Tyler on Inf. & Cov. p. 75, § 85; 1 Pars. on Cont. (5th ed.) 321; 1 Am. Lead. Cas. 258 ; Reeve’s Dom. Rel. 243. (2). First: Where the contract has been executed (in whole or in part) on the side of the infant, but is not exe- cuted on the part of the adult, and the infant disaffirms the contract, having The judgment received no consideration or benefit thereunder, he may sue for and recover the consideration moving from him by any appropriate action, as though no special contract had been made; in such case the adult is of course dis- charged from any liability on the con- tract as such. See Medbury v. Watrous (ante); Corpe v. Overton (ante) ; Millard v. Hewlett, 19 Wend. 301; Robinson v. Weeks, 56 Me. 102. See, as to the subject of recovery for labor, &c., done by the infant, under the quantum meruit in the avoidance of his special contract; Whitmarsh v. Hall, and Medbury v. Watrous, and notes (ante, pp. 102, 107), and the cases there cited. The dictum in Holmes v. Blogg, 8 Taunt. 508 (ante), that ‘‘if an in- fant pays money with his own hand without a valuable consideration, he cannot get it back again,” may be considered as effectually overruled. See the above cases; also Riley v. Mallory, 83 Conn. 207; Heath ». 124 Stevens, 48 N. H. 252; 1 Am. Lead. Cas. (4th ed.) 259; Austen v. Gervas, Hob. 77; 1 Sid. 41. Second: Where the contract has been executed in whole or in part on the part of the adult, but remains ex- ecutory on the part of the infant, it is quite clear that it may be disaffirmed by the infant as in other cases; see Craighead v. Wells, 21 Mo. 409; but on principle it would seem clear that in such case (at least where he has reached his majority), he must return to the adult the consideration, if remaining in specie in his possession or control, and capable of return; but when articles, other than necessaries, have been sup- plied to the infant, and are consumed or parted with, or money lent is ex- pended, the consideration in such case being incapable of return, the adult is remediless; vide infra where the sub- ject is more fully considered in refer- ence to executed contracts; also Smith v. Evans, 5 Humph. 73; Brawner v. INFANCY. Franklin, 4 Gill, 470; Boody »v. Me- Kenney, 23 Me. 525; Corey v. Burton, Sup. Ct. Mich, April Term, 1875; Reeve’s Dom. Rel. 244; 1 Am. Lead. Cas. (4th ed.) 258. (8). In the case of the disaffirmance of contracts executed in whole or in part on both sides, there is more diffi- culty. The policy of the law seems to be to require the infant, upon such disaffirm- ance, to place the adult in statu quo, so far as possible consistently with the preservation of his privilege, which is designed as a shield and not as a sword ; but the protection of the infant is the main object, and the other seems to be secondary in importance, and must yield when its exercise is inconsistent with the former. Accordingly when the infant elects to disaffirm his voidable contract, he must disaffirm in toto, as well that por- tion which is to his advantage as that which is onerous to him." 1 Thus, where an infant purchases property (real or personal) and gives a mort- gage back to secure the purchase-money, in whole or in part, it is in law one transaction, and he cannot disaffirm the mortgage without disaffirming the sale, and conversely. Heath v. West, 28 N. H. (8 Fost.) 108; Roberts v. Wiggin, 1 N. H. 73; Bigelow v. Kenney, 8 Vt. 858; Richardson v. Boright, 9 Vt. 371; Weed v. Beebe, 21 Vt. 495; Robbins v. Eaton, 10 N. H. 561; Hubbard v. Cumings, 1 Me. 11; Lynde v. Budd, 2 Paige, Ch.191; Ottman v. Moak, 3 Sandf. Ch. 481; Young v. McKee, 13 Mich. 556 ; Cogley v. Cushman, 16 Minn. 402; Skinner v. Maxwell, 66 N. C. 45. And it makes no difference that the notes and mortgage are by agreement of the parties made pay- able to the creditor of the grantor, the circumstance, to whom the consideration is made payable, not changing the character of the transaction. Dana v. Coombs, 6 Me. 89. So when after majority he brings an action upon notes given him upon a sale of prop- erty by him, he cannot by plea of infancy preclude the defendant from taking advantage of his false warranty in any proper manner as a defence. Morrill v. Aden, 19 Vt. 505. So where upon the dissolution of a copartnership between K. and L., the former con- veyed his interest in the partnership effects to the latter upon condition that L. would pay the debts of the firm, which L. subsequently refused to pay upon the ground of infancy ; it was held that he could not retain the partnership effects and at the same time refuse to perform the condition upon which they were assigned to him; and that if he elected to rescind the agreement on the ground of infancy at the time of its execution, K. had a right to insist that the partnership effects should be applied to the payment of the firm debts in the same manner as if the agreement had not been made, unless the goods had gone into the hands of a bond fide purchaser who had act- ually paid for them before he had any notice whatever of the complainant’s rights. Kitchen v. Lee, 11 Paige, Ch. 107. So a party cannot disaffirm an agreement PRICE Vv. And accordingly, also, it seems well settled that if he rescinds his contract, and seeks to reclaim the consideration moving from him, he must restore the consideration received by him, if in his possession or control, and that, on ten- dering back such consideration, he may be allowed to recover.’ See Carr v. Clough, 26 N. H. 280; Price v. Fur- man, 27 Vt. 268; Riley v. Mallory, 33 Conn. 201; Robinson v. Weeks, 56 Me. 102; see also Grace v. Hale, 2 Humph. 27. Indeed, some of the cases lay down the doctrine generally, that he must return the consideration without any qualification whatever as to whether in his possession or. not; see Holmes v. FURMAN. 125 Blogg, 8 Taunt. 508; Womack v. Womack, 8 Tex. 417; Cummings v, Powell, 8 Tex. 93; Kilgore v. Jordan, 17 Tex. 855; Stuart v. Baker, 17 Tex. 421; Kerr v. Bell, 44 Mo. 125; Highley v. Barron, 49 Mo. 107; Baker v, Kennett, 5£ Mo. 88; Taft v. Pike, 14 Vt. 409; Farr v. Sumner, 12 Vt. 32; see also 2 Kent’s Com. 240: or that, where that cannot be done, he must place the other party in as good a condition as though he had returned it, or must account for the value of it, before he can recover back the consid- eration that has passed from him. See Bailey v. Barnberger, 11 B. Mon. 113; Bartholomew v. Finnemore, 17 Barb. 430; Locke v. Smith, 41 N. H. 346; made while he was an infant, that a judgment, with a condition that it should be void on the payment of a certain sum within a certain time, should be rendered in his favor, and have the benefit of the judgment without being bound by the condition. Lowry v. Drake’s Heirs, 1 Dana (Ky.), 46. And it is also held that a party who has received a legacy under a will cannot be permitted to contest the validity of such will without repaying the amount of the legacy or bringing the movey into Court. And the rule applies, even if the party was a minor, when the legacy was received. Ham- blett v. Hamblett, 6 N. H. 388. But where one procures the appointment by a Probate Court of a guardian for a minor without the consent or knowledge of the father or other friends of such child, for the purpose of secretly obtaining title for his own benefit to the minor’s lands by purchasing the same at the guardian’s sale thereof, such probate proceedings, not being on behalf or in the interest of the minor, are a fraud upon the minor’s rights; and in such case it is no justification to such purchaser that, but for his having advanced to the guardian the money to redeem from a mortgage foreclosure, the lands would have been lost to the minor; and especially not in the absence of any showing that the minor or her friends had any knowledge of the foreclosure, or of the necessity of redemption. The minor, by seeking to take the benefit of the redemption made by the guardian, does not thereby ratify his appointment and acts as guardian : the doc- trine, that one cannot set aside part of a transaction asa fraud and insist upon the benefit of the residue, does not apply to transactions to which a party has not assented, where it is impossible for him to insist upon his rights and at the same time place every thing in statu quo. The offer in the bill to refund the money paid for redemption with interest is all that equity requires. Tong v. Marvin, 26 Mich. 36. 1 But mere receipts for money paid, of no appreciable value, and giving him no legal interest in the company property, and not amounting to certificates of stock, need not be tendered back. Robinson v. Weeks (supra). But in some cases it is stated that, though, on the avoidance of the contract, the adult is entitled to the property remain- ing in the hands of the infant, in whatever condition it may be; yet the infant is not bound to make any tender at all before commencing his action. See Carpenter v. Carpenter, 45 Ind. 142, and cases there cited; see also Law v. Long, 41 Ind. 600; Towell v. Pence, 47 Ind. 307. 126 Heath v. Stevens, 48 N. H. 251. See Benj. on Sales (1 Am. ed.), § 24, note (f): or that when he seeks relief in equity, he must, as a condi- tion of relief, do equity to the other party by restoring or accounting for the consideration. See remarks of Curistiancy, J., in Prout v. Wiley, 28 Mich. 168; Ray, J., in Miles ». Lingerman, 24 Ind. 387; Catron, C. J., in Manning v. Johnson, 26 Ala. 451; Hillyer v. Bennett, 3 Edw. Ch. 222; Smith v. Evans, 5 Humph. 70. See also Strain v. Wright, 7 Geo. 568; Middleton v. Hoge, 5 Bush (Ky.), 478; Bryant v. Pottinger, 6 Bush (Ky.), 473; Overton v. Barrister, 3 Hare, 506. The doctrine laid down in Holmes v. Blogg, 8 Taunt. 508 (ante), as ex- plained in Corpe v. Overton, 10 Bing. 252 (ante), and the cases which follow them, seems to be that in such cases where the infant has received a benefit under the contract, he cannot rescind the contract, and recover back the con- sideration moving from him to the adult, unless the adult can be placed in statu quo,' a proposition which if given full effect will, in a majority of cases where the infant bas received any benefit what- ever under the contract, deny to him all the protection of his privilege, and instead afford ample protection to the adult, who, if he must be placed in statu quo before the privilege is allowed to be exercised, incurs no risk what- ever in contracting with the infant. See remarks of the Court in Corey v. Burton, Supreme Court of Michigan, April Term, 1875. See also Everett v. Wilkins, 29 L. T. n. s. 846, Exch. But the true doctrine, and the one sup- ported by the weight of authority (at least in the United States), would seem to be that, where the infant disaffirms INFANCY. his executed contract after arriving at age, and seeks a recovery of the con- sideration moving from him, and where the specific consideration received by him remains in his hands in specie at the time of disaffirmance, and is capable of return, it must be returned by him; but if he has during infancy wasted, sold, or otherwise disposed of or ceased to possess the consideration, and has none of it in his hands in kind on arriving at majority, he is not liable therefor, and may disaffirm without ten- dering or accounting for such consid- eration. See Mustard v. Wobhlford’s Heirs (post, p. 142); Price ». Furman (ante, p. 119), and cases there cited; Walsh v. Young, 110 Mass. 399; Bartlett v. Drake, 100 Mass. 176; (overruling dictum in Bartlett v. Cowles, 15 Gray, 445); Gibson v. Soper, 6 Gray, 282; Chandler v. Simmons, 97 Mass. 514; Manning v. Johnson, 26 Ala. 452; Carpenter v. Carpenter, 45 Ind. 142; see also Briggs v. McCabe, 27 Ind. 330; Miles v. Lingman, 24 Ind. 387; 7 Ind. 403; 15 Ohio, 1938. And such disposition of the consideration during minority is not a conversion. See Fitts v. Hall, 9 N. H. 445; Carr v. Clough, 26 N. H. 294. And in like manner in a case where the contract is executory on the part of the infant, and he disaffirms it, and still retains the property received by him thereunder, the adult, it has been held (and correctly so it would seem), may, atter demand and refusal, maintain trover, replevin, or detinue therefor. When such contract is avoided, the parties revert to their original situa- tion, and of course the adult becomes again entitled to the possession of his property, and any detention thereof after demand becomes wrongful. See Badger v. Phinney, 15 Mass. 359; * ap- 1 See Breed v. Judd, 1 Gray, 457; Riley v. Mallory, 33 Conn. 207; Bartholomew v. Finnemore, 17 Barb. 429; Aldrich vy. Abrahams, Hill & D., Lalor’s Sup. 425; Wil- helm v Hardman, 18 Md. 146; Brawner v. Franklin, 4 Gill, 471. 2 So much of this case as pertains to the point above stated is herewith given at length: ‘“ We proceed to consider the second contract, made in the fall of 1817; when the as PRICE v. proved in Boyden v. Boyden, 9 Met. 519; Jefford’s Adm’r v. Ringgold, 6 Ala, 544; Mustard ». Wobltord’s Heirs (post, p. 142); Fitts ». Hall, 9 N. H. 446; Strain v. Wright, 7 Geo. 572; Carpenter v. Carpenter, 45 Ind. 142; Carr v. Clough, 26 N. H. 294; Story on Sales, § 28, note; Reeve’s Dom. Rel. 245. See also Penrose v. Curren, 3 Rawle, 353; Mills v. Graham, 1 Bos. & P.N.R. 140; Wallace v. Morss, 5 Hill, 391; Eckstein v. Frank, 1 Daly, 334; Walker v. Davis, 1 Gray, 506, where an infant, prevailing on his plea of infancy in an action on a promissory note given by him for a chattel which he had obtained by fraud and refused to deliver on demand, made after the termination of the action on said note, was still held liable to an action for the FURMAN, 127 conversion of the chattel, although he had sold it before the demand was made upon him. In Carr v. Clough (supra), where the contract for the exchange of prop- erty was fully executed on the part of the infant and the property delivered, it was held that the adult has the right to the property till the contract is re- scinded, and a right to make a bond Jide sale of the same before rescission ; and that, if such a sale be made by the adult, trover does not lie against him for the property, his possession and control at the time being rightful. It was not determined, however, what would be the rights and liabilities of the vendee of such adult; and itis held that the right of the infant to disaffirm is an absolute and paramount right, plaintiff, induced by the misrepresentation of Rand that he was of age, conveyed the goods to him. The defendant contends that he has rescinded that contract as admin- istrator of Rand. What then? Should not the plaintiff and defendant be placed in the same situation as if no such contract had been made? But that will not do for the defendant. His notion of rescinding is to keep all, and to pay nothing on the contract. He has defended successfully against the plaintiff’s suit for the price of the goods, on the ground that his intestate was an infant; and he now contends that he may hold the goods also, without making any payment for them, for the same reason. This result does not follow. Roof v. Stafford, 7 Cowen, 179; Holmes v. Blogg, 8 Taunt. 508; McCoy v. Huffman, 8 Cowen, 84; Kirton v. Elliott, 2 Buls. 69; Earl of Buckinghamshire v. Drury, 2 Eden, 72. The goods were delivered by the plaintiff to Rand, because he undertook to pay for them, and declared that he was of age. The basis of this contract has failed from the fault, if not the fraud, of the infant; and on that ground the property may be considered as never having passed from, or as hav- ing revested in, the plaintiff. It is said in Pothier, 1, 13, if, with the intention of giving or lending a thing to Peter, I give or lend it to Paul, whom I mistake for Peter, the gift or loan is void for want of my consent. The plaintiff supposed that he was dealing with a man of full age, and not with an infant; and the fraud which induced the contract furnishes the ground for the impeachment of it. Thus, in the case of Buffington et al. v. Gerrish et al. (ante), 15 Mass. 156, where one purchased goods on credit by means of false representations, and afterwards the creditors of the vendee attached them, it was very well held that the vendor had not parted with his property, but might maintain replevin against the attaching officer. It has been further objected that the writ was delivered to the officer before a demand was made for the goods. It is a sufficient answer that, if the defendant had delivered the goods upon the demand, there would have been no necessity to serve the writ. It may be Considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case. And it is evident that it was not to be consid- ered as of any validity until after the demand and refusal to deliver the goods was had. Judgment for the plaintiff.” 128 superior to all equities of other per- sons; and may therefore be exercised against purchasers from the vendee. In the principal case of Mustard v. Wohlford’s Heirs, this doctrine was ap- plied in favor of the second vendee of the infant. In Hill v. Anderson, 5 Smedes & Marsh. 216, it was accordingly held that a sub-vendee of the vendee of an INFANCY. infant of personal property, even though a purchaser for a valuable con- sideration without notice, cannot hold the property as against the infant. And the same rule applies to real estate. Miles v. Lingerman, 24 Ind. 385. But the doctrine of notice is held to apply to acts of ratification. See Black v. Hills (post). Tucker et al v. MORELAND. (10 Peters, 58. Supreme Court of the United States, January Term, 1836.) What amounts to a Disaffirmance of an Infant's Deed. — B., being seised in fee of certain real estate, on the 1st day of Dec, 1831, executed a deed to W., reciting as the consideration, that B. with one Bing was indebted to T. & T., the plaintiffs, in a certain sum, for which a promissory note had been given, to secure the payment of which the conveyance was made to W.., in trust, to sell the property in case of non-payment of thedebt. The property was sold for that purpose March 7, 1833, by the trustee, and conveyed to the plaintiffs, the purchasers. B. remained in possession till Feb. 8, 1833, when, with other property, he conveyed it to M., his mother, the defendant, in consideration of a certain sum due her, to recover which suit had been brought by her. At the time of the sale by W., the defendant gave notice of her title, and publicly claimed the premises. On the trial of the ejectment brought by T. & T. against M., evidence was given to prove that, at the time of the execution of the deed by B. to W., he, B., was an infant; and that at the time of the exe- cution of the deed to the defendant he was of lawful age. Held, that the deed to the defendant was a complete disaffirmance and avoidance of the prior deed to W.; and that the said deed of W. to T. & T. did not convey to them such a title as to warrant a recovery by them of the premises in ejectment. Acts void and voidable. — The cases as to what acts of an infant are voidable and what void reviewed, and the various rules considered. Voidable Acts, how confirmed and avoided. — Means by which the voidable act of an infant may be confirmed or avoided considered, and rules stated. Effect of Fraud. — In many cases the disaffirmance of a deed made by an infant may operate as a fraud upon the other party; but this is not sufficient to avoid the disaffirmance, as if it did it would take away the very protection which the law intends to throw round him to guard him from the effects of his folly, rasbness, and misconduct. TUCKER v, MORELAND. 129 Mr. Justice Story delivered the opinion of the Court.! This is a writ of error to the Circuit Court forthe county of Washing- ton, and District of Columbia. The original action was an eject- ment brought by the plaintiff in error against the defendant in error; and both parties claimed title under Richard N. Barry. At the trial of the cause upon the general issue, it was admitted, that Richard N. Barry, being seised in fee of the premises sued for, on the first day of December, 1831, executed a deed thereof to Richard Wallach. The deed, after reciting that Barry and one Bing were indebted to Tucker and Thompson in the sum of three thousand two hundred and thirty-eight dollars, for which they had given their promissory note, payable in six months after date, to secure which the conveyance was to be made, conveyed the premises to Wallach, in trust to sell the same in case the debt should re- main unpaid ten days after the first day of December then next. The same were accordingly sold by Wallach, for default of pay- ment of the note, on the 23d of February, 1833, and were bought at the sale by Tucker and Thompson, who received a deed of the same on the 7th of March of the same year. It was admitted that, after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February, 1833, when he executed a deed, including the same and other parcels of land, to his mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of one thousand one hundred and thirty-eight dollars and sixty- one cents, which he owed his mother; for the recovery of which she had instituted a suit against him, and of other sums advanced to him, a particular account of which had not been kept, and of ‘the further sum of five dollars. At the time of the sale of Wal- lach, the defendant gave public notice of her title to the prem- ises, and she publicly claimed the samé as her absolute right. The defendant further gave evidence at the trial to prove that at the time of the execution of the deed by Barry to Wal- lach, he, Barry, was an infant under twenty-one years of age, and at the time of the execution of the deed to the defendant, he was of the full age of twenty-one years. Upon this state of the evidence the counsel for the defendant prayed the Court to instruct the jury, that if, upon the whole evidence given as afore- 1 The facts of the case and requests to charge, &c., sufficiently appearing in the opinion of the Court, the reporter’s statement is omitted. 9 130. INFANCY. said to the jury, they should believe the facts to be as stated as aforesaid, then the deed from the said Wallach to the plaintiffs did not convey to the plaintiffs any title which would enable them to sustain the action. This instruction the Court gave; and this constitutes the exception now relied on by the plaintiff in error, in his first bill of exceptions. Some criticism has been made upon the language in which this instruction is couched. But, in substance, it raises the question which has been so fully argued at the bar, as to the validity of the plaintiff’s title to re- cover, if Barry was an infant at the time of the execution of his deed to Wallach. If that deed was originally void, by rea- son of Barry’s infancy, then the plaintiff, who must recover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and, not void, and yet it has been avoided by the subsequent conveyance to the defendant by Barry, then the same conclusion follows. And these, accordingly, are the considerations which are pre- sented under the present instruction. In regard to the point whether the deed of lands by an infant is void or voidable at the common law, no inconsiderable diversity of opinion is to be found in the authorities. That some deeds or instruments under seal of an infant are void, and others voidable, and others valid and absolutely obligatory, is not doubted. Thus a single bill under seal given by an infant for necessaries is absolutely binding upon him ; a bond with a penalty for necessaries is void, as apparently to his prejudice ; and a lease reserving rent is voidable only.1 The difficulty is in ascertaining the true principle upon which these distinctions depend. Lord MansFiE.p, in Zouch v. Parsons 3 Burr. 1804, said, that it was not settled what is the true ground upon which an infant’s deed is voidable only ; whether the solemnity of the instrument is sufficient, or it depends upon the semblance of benefit from the matter of the deed upon the face of it. Lord MansrieLp, upon a full examination of the authorities on this ocaasion, came to the conclusion (in which the other judges of the Court of King’s Bench concurred) that it was the solemnity of the instrument and delivery by the infant himself, and not the semblance of benefit to him, that constituted the true line of distinction between void and voidable deéds of the infant. 1 See Russell v. Lee, 1 Lev. 86; Fisher v. Mowbray, 8 East. 330; Baylis v. Dineley, 8 M. & Selw. 470; Co. Lit. 172 a. But see ante, p. 62, and post, p. 142. SON NOM TUCKER v. MORELAND. 181 But he admitted that there were respectable sayings the other way. The point was held by the Court not necessary to the de- termination of that case, because, in that case, the circumstances showed that there was a semblance of benefit sufficient to make the deed voidable only, upon the matter of the conveyance. There can be little doubt that the decision in Zouch v. Parsons was perfectly correct; for it was the case of an infant mortgagee, releasing by a lease and release his title to the premises, upon the payment of the mortgage money by a second mortgagee, with the consent of the mortgagor. It was precisely such an act as the infant was bound to do; and would have been compelled to do by a Court of equity, as a trustee of the mortgagor. And certainly it was for his interest to do what a Court of equity would by a suit have compelled him to do.1_ Upon this occasion, Lord MansFIELD and the Court approved of the law as laid down by Perkins (Sect. 12), that “all such gifts, grants, or deeds made by infants, which do not take effect by delivery of his hand are void. But all gifts, grants, or deeds made by infants by matter of deed or in writing, which do take effect by delivery of his hand are voidable by himself, by his heirs, and by those who have his estate;’’ and in Lord MANSFIELD’s view, the words “which do take effect” are an essential part of the definition ; and exclude letters of attorney or deeds which delegate a mere power and convey no interest.2 So that, according to Lord MANsFIELD’s opinion, there is no difference between a feoffment and any deeds which convey an interest. In each case, if the infant makes a feoffment or delivers a deed in person, it takes effect by such delivery of his hand, aud is voidable only. But if either be done by letter of attorney from the infant, it is void, for it does not take effect by a delivery of his hand. There are other authorities, however, which are at variance with this doctrine of Lord MANSFIELD, and which put a different interpretation upon the language of Perkins. According to the latter, the semblance of benefit to the infant or not is the true ground of holding his deed voidable or void. That it makes no difference whether the deed be delivered by his own hand or not; but whether it be for his benefit or not. If the former, then it is 1 See v. Handcock, 17 Ves. 883; 1 Fonbl. Eq., b. 1, ch. 2, ». 5, and notes ; Co. Lit. 172a; Com. Dig. Enfant, B. 5. ? See Saunders v. Marr, 1 H. Black. 75. 1382 INFANCY. voidable; if the latter, then it is void. And that Perkins, in the passage above stated, in speaking of gifts and grants taking effect by the delivery of the infant’s hand, did not refer to the delivery of the deed, but to the delivery of the thing granted; as, for instance, in the case of a feoffment to a delivery of seisin by the infant personally ; and in case of chattels by a delivery of the same by his own hand. This is the sense in which the doctrine of Perkins is laid down in Sheppard’s Touchstone, 232.1 Of this latter opinion, also, are some other highly respectable text- writers ;? and perhaps the weight of authority, antecedent to the decision in Zouch v. Parsons, inclined in the same way. Lord Chief Justice Eyrr,in Keane v. Boycott, 2 Hen. Black. 516, alluded to this distinction in the following terms. After having cor- rected the generality of some expressions in Litt. s. 259, he added: “We have seen that some contracts of infants, even by deed, shall bind them; some are merely void; namely, such as the Court can pronounce to be to their prejudice; others, and the most numerous class, of a more uncertain nature as to benefit or prejudice, are voidable only ; and it is in the election of the infant to affirm them or not. In Roll. Abridg., title ‘‘ Enfants,” 1 Roll. Abridg. 728, and in Com. Dig. under the same title, instances are put of the three different kinds of good, void, and voidable contracts. Where the contract is by deed, and not apparently to the prej- udice of the infant, Comyns states it as a rule that the infant can- not plead non est factum, but must plead his infancy. It is his deed; but this is a mode of disaffirming it. He, indeed, states the rule generally, but I limit it to that case in order to reconcile the doctrine of void and voidable contracts.” A doctrine of the same sort was held by the Court in Thompson v. Leach, 8 Mod. 310; in Fisher v. Mowbray, 8 East, 330 ; and Baylis v. Dineley, 3 M. & Selw. 477. In the two last cases the Court held that an infant 1 See Dearborn v. Eastman, 4 N. H. 441, where it was held that, if an infant make a conveyance in pais of his land in any other manner than by a feoffment, an entry into the land by the grantee may be treated by the infant as a trespass, without any entry on his part to avoid the conveyance ; that a feoffment by an infant is only voidable, but all other conveyances in pais stand on the same ground as executory contracts, and are void or voidable at his election. 2 See Preston on Conveyancing, 248 to 250; Com. Dig. Enfant, C.2; Shep. Touch. 282, and Acherly’s note; Bac. Abridg. Infancy, I. 8; English Law Journal for 1804, p. 145; 8 Amer. Jurist, 327. But see 1 Powell on Mortg. by Coventry, note to p- 208 ; Zouch v. Parsons, 1 W. Black. 575; Ellsley’s notes (h) and (v); Co. Lit. 51, 6, Harg. note, 831; Holmes v. Blogg, 8 Taunt. 608; 1 Fonbl. Eq., b. 1, ch. 11, s. 8, and notes (y), (2), (a), (0). TUCKER ¥, MORELAND. “133 cannot bind himself ina bond with a penalty, and especially to pay interest. In the case of Baylis v. Dineley, Lord ELLENBOROUGH . said : ‘‘ In the case of the infant lessor, that being a lease, rendering rent, imported on the face of it a benefit to the infant, and his accept- ing the rent at full age, was conclusive that it was for his benefit. But how do these authorities affect a case like the present, where it is clear upon the face of the instrument that it is to the prejudice of the infant, for it is an obligation with a penalty and for the payment of interest? Is there any authority to show that, if upon look- ing to the instrument, the Court can clearly pronounce that it is to the infant’s prejudice, they will, nevertheless, suffer it to be set up by matter ex post facto after fullage?”’ And then, after com- menting on Keane v. Boycott and Fisher v. Mowbray, he added: “In Zouch v. Parsons, where this subject was much considered, I find nothing which tends to show that an infant may bind himself to his prejudice. It is the privilege of the infant that he shall not ; and we should be breaking down the protection which the law has cast around him if we were to give effect to a confirma- tion by parol of a deed like this made during his infancy.” It is apparent, then, upon the English authorities, that however true it may be that an infant may so far bind himself by deed in cer- tain cases, as that in consequence of the solemnity of the instru- ment, it is voidable only, and not void; yet, that the instrument, however solemn, is held to be void, if upon its face it is apparent that it is to the prejudice of the infant. This distinction, if admitted, would go far to reconcile all the cases; for it would decide that a deed by virtue of its solemnity should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void.1 The same question has undergone no inconsiderable discussion in the American Courts. In Oliver v. Houdlet, 13 Mass. 239, the Court seemed to think the true rule to be that those acts of an infant are void which not only ap- parently but necessarily operate to his prejudice. In Whitney v. Dutch, 14 Mass. 462, the same Court said that, whenever the act done may be for the benefit of the infant, it shall not be considered void; but that he shall have his election, when he comes of age, to affirm or avoid it. And they added that this was the only clear and definite proposition which can be extracted from 1 See Bac. Abridg. Infancy & Age, I. 3, I. 7. 134 INFANCY. the authorities.) In Conroe v. Birdsall, 1 Johns. Cas. 127, the Court _ approved of the doctrine of Perkins, § 12, as it was interpreted and adopted in Zouch v. Parsons; and in the late case of Roof »v. Stafford, 7 Cowen, 180, 181, the same doctrine was fully recog- nized. But in an intermediate case, Jackson v. Burchin, 14 Johns. 126, the Court doubted whether a bargain and sale of lands by an infant was a valid deed to pass the land, as it would make him stand seised to the use of another. And that doubt was well warranted by what is laid down in 2 Inst. 673, where it is said that if an infant bargain and sell lands which are in the realty by deed indented and enrolled, he may avoid it when he will, for the deed was of no effect to raise a use. The result of the American decisions has been correctly stated by Mr. Chancel- lor Kenr in his learned Commentaries (2 Com. Lect. 31) to be that they are in favor of construing the acts and contracts of infants generally to be voidable only, and not void and subject to their election when they become of age either to affirm or disallow them ; and that the doctrine of Zouch v. Parsons has been recog- nized and adopted as law. It may be added that they seem gen- erally to hold that the deed of an infant conveying lands is voidable only, and not void, unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant ; and this upon the nature and solemnity, as well as the operation, of the instrument. It is not, however, necessary for us in this case to decide whether the present deed, either from its being a deed of bargain and sale, or from its nature as creating a trust for a sale of the estate, or from the other circumstances of the case, is to be deemed void or voidable only. For if it be voidable only and has been avoided by the infant, then the same result will follow, that the plaintiff’s title is gone. Let us, then, proceed to the consid- eration of the other point, whether supposing the deed to Wallach to be voidable only, it has been avoided by the subsequent deed of Barry to Mrs. Moreland. There is no doubt that an infant may avoid his act, deed, or contract, by different means, according to the nature of the act and the circumstances of the case. He may sometimes avoid it by matter im pais, as in case of a feoffment by an entry, if his 1 See Boston Bank v. Chamberlain, 15 Mass. 220. TUCKER ¥. MORELAND. 135 entry is not tolled ; sometimes by plea, as when he is sued upon his bond or other contract ; sometimes by suit, as when he disaf- firms a contract made for the sale of his chattels, and sues for the chattels; sometimes by a writ of error, as when he has levied a fine during his nonage ; sometimes by a writ of audita querela, as when he has acknowledged a recognizance, or statute staple or merchant ;} sometimes, as in. the case of an alienation of his estate during his nonage by a writ of entry, dum fuit infra eta- tem, after his arrival of age. The general result seems to be that where the act of the infant is by matter of record, he must avoid it by some act of record (as, for instance, by a writ of error, or on audita querela) during his minority. But if the act of the infant is a matter in pais, it may be avoided by an act in pais of equal solemnity or notoriety ; and this, according to some author- ities, either during his nonage or afterwards; and according to others, at all events, after his arrival of age.2 In Co. Lit. 380 5, it is said, “‘ Herein a diversity is to be observed between matters of record done or suffered by an infant and matters in fait; for matters in fait he shall avoid either within age or at full age, as hath been said; but matters of record, as statutes merchants, and of the staple, recognizances acknowledged by him, or a fine levied by him, recovery against him, &c., must be avoided by him ; viz., statutes, &c., by audita querela ; and the fine and recovery by a writ of error during his minority, and the like.” In short, the nature of the original act or conveyance generally governs as to the nature of the act required to be done in the disaffirmance of it. If the latter be of as high and solemn a nature as the former, it amounts toa valid avoidance of it. We do not mean to say that in all cases the act of disaffirmance should be of the same or of as high and solemn a nature as the original act, for a deed may be avoided by a plea. But we mean only to say that if the act of disaffirmance be of as high and sol- emn a nature, there is no ground to impeach its sufficiency. Lord ELLeNBorouGH, in Baylis v. Dineley, 3 Maule & Selw. 481, 482, held a parol confirmation of a bond given by an infant after he came of age to be invalid, insisting that it should be by 1 See Com. Dig. Enfant, B. 1, 2, C. 2, 3, 4, 5, 8, 9,11; 2 Inst. 673; 2 Kent, Comm. Lect. 81; Bac. Abridg. Infancy & Age, I. 5, 1.7. 2 See Bac. Abridg. Infancy & Age, I. 3, I. 6,1. 7; Zouch v. Parsons, 8 Burr. 1794; Roof v. Stafford, 7 Cowen, 179, 183; Com. Dig. Enfant, C. 9, C. 4,C.11. 1386 INFANCY. something amounting to an estoppel in law of as high authority as the deed itself; but that the same deed might be avoided by the plea of infancy. There are cases, however, in which a confirmation may be good without being by deed; as in case of a lease by an infant, and his receiving rent after he came of age.! The question, then, is whether in the present case the deed to Mrs. Moreland, being of as high and solemn a nature as the original deed to Wallach, is not a valid disaffirmance of it. We think it is. If it was a voidable conveyance which had passed the seisin and possession to Wallach, and he had remained in possession, it might, like a feoffment, have been avoided by an entry by an infant after he came of age.? But in point of fact Barry remained in possession ; and therefore he could not enter upon himself. And when he conveyed to Mrs. Moreland, being in possession, he must be deemed to assert his original interest in the land, and to pass it in the same manner as if he had entered upon the land and delivered the deed thereon, if the same had been in an adverse possession. The case of Jackson v. Car- penter, 11 Johns. 5389, and Jackson v. Burchin, 14 Johns. 124, are directly in point, and proceed upon principles which are in perfect coincidence with the common law and are entirely satis- factory. Indeed, they go farther than the circumstances of the present case require; for they dispense with an entry where the possession was out of the party when he made the second deed. In Jackson v. Burchin, the Court said, that it would seem not only upon principle but authority, that the infant can manifest his dissent in the same way and manner by which he first assented to corivey. If he has given livery of seisin, he must do an act of equal notoriety to dissaffirm the first act; he must enter on the land and make known his dissent. If he has conveyed by bar- gain and sale, then a second deed of bargain and sale will be equally solemn and notorious in disaffirmance of the first. We know of no authority or principle which contradicts this doctrine. Tt seems founded in good sense, and follows out the principle of notoriety of disaffirmance in the case of a feoffment by an entry; 1 See Bac. Abridg. Infancy & Age, I. 8. ? See Inhabitants of Worcester v. Eaton, 18 Mass. 875; Whitney v. Dutch, 14 Mass. 462. 3 See the same point, 2 Kent, Com. Lect. 81. TUCKER v. MORELAND. 1387 that is, by an act of equal notoriety and solemnity with the original act. The case of Frost ». Wolverton, 1 Strange, 94, seems to have proceeded on this principle. Upon these grounds, we are of opinion, that the deed of Barry to Mrs. Moreland was a complete disaffirmance and avoidance of his prior deed to Wal- lach; and consequently the instruction given by the Circuit Court was unexceptionable. To give effect to such disaffirmance, it was not necessary that the infant should first place the other party in statu quo. The second bill of exceptions taken by the plaintiff turns upon the instructions asked upon the evidence stated therein, and scarcely admits of abbreviation. It is as fol- lows: “ The plaintiff, further to.maintain and prove the issue on his side, then gave in evidence, by competent witnesses, facts tend- ing to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of September, 1831; and that in the month of November, 1831, the said defend- ant, who was the mother of the said Richard, did assert and declare that said Richard was born on the fourteenth day of Sep- tember, 1810 ; and that she did assert to Dr. MeWilliams, a compe- tent and credible witness, who deposed to said facts, and who was the accoucheur attending on her at the period of the birth of her said son, that such birth actually occurred on the said fourteenth of September, 1810, and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the birth; and thereupon the counsel for the plaintiff requested the Court to instruct the jury: ‘1. That, if the said jury shall believe, from the said evidence, that the said Richard N. Barry was of full age, and above the age of twenty-one years, at the time of the execution of said deed to said Wallach; or, if the defendant shall have failed to satisfy the jury, from the evidence, that said Barry was, at the said date, an infant under twenty-one years, that then the plaintiff is entitled to recover. 2. Or, if the jury shall believe, from the said evidence, that, if said Richard was under age at the time of the execution of said deed, that he did, after his arrival at age, voluntarily and deliberately recognize the same as an actual conveyance of his right, or, during a period of several months, acquiesce in the same without objection, that then the said deed cannot now be impeached on account of the minority of the grantor. 8. That the said deed from the said Richard N. Barry to the defendant, being made to her with full 138 INFANCY. notice of said previous deed to said Wallach, and including other and valuable property, is not so inconsistent with said first deed as to amount to a disaffirmance of the same. 4. That, from the relative position of the parties to said deed to defendant, at and previous to its execution, and, from the circumstances attending it, the jury may infer that the same was fraudulent and void. 5. That if the lessors of plaintiff were induced, by the acts and declarations of said defendant, to give a full consideration for said deed to Wallach, and to accept said deed as a full and ‘only security for the debt bond fide due to them, and property bond fide advanced by them, and to believe that the said security was valid and effective, that then it is not com- petent for said defendant in this action to question or deny the title of said plaintiff under said deed, whether the said acts and declarations were made fraudulently, and for the purpose of practising deception ; or whether said defendant, from any cause, wilfully misrepresented the truth. Whereupon, the Court gave the first of the said instructions so prayed, as aforesaid, and refused to give the others. To which refusal the counsel for the plaintiff excepted.” The first instruction, being given by the Court, is, of course, excluded from our consideration on the present writ of error. The second instruction is objectionable on several accounts. In the first place, it assumes, as matter of law, that a voluntary and deliberate recognition by a person after his arrival at age, of an actual conveyance of his right during his nonage, amounts to a confirmation of such conveyance. In the next place, that a mere acquiescence in the same conveyance, without objection, for several months after his arrival at age, is also a confirmation of it. In our judgment, neither proposition is maintainable. The mere recognition of the fact, that a conveyance has been made, is not, per se, proof of a confirmation of it. Lord ELLEN- BOROUGH, in Baylis v. Dineley (8 M. & Selw. 482), was of opinion that an act of as high a solemnity as the original act was neces- sary to a confirmation. ‘ We cannot,” said he, ‘“ surrender the interests of the infant into such hands as he may chance to get. It appears to me that we should be doing so in this case,’’ (that of a deed) “unless we required the act after full age to be of as great a solemnity as the original instrument.” Without under- taking to apply this doctrine to its full extent, and admitting that TUCKER v¥. MORELAND. 139 acts in pais may amount to a confirmation of a deed, still, we are of opinion, that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was avoidable! A fortiori mere acquiescence, uncoupled with any acts demonstrative of an intent to confirm it, would be insufficient for the purpose. In Jackson v. Carpenter, 11 Johns. 542, 548, the Court held, that an acquiescence by the grantor in a conveyance made dur- ing his infancy, for eleven years after he came of age, did not amount to a confirmation of that conveyance ; that some positive, act was necessary, evincing his assent to the conveyance. In Curtin v. Patton, 11 Serg. & Rawle, 311, the Court held, that to constitute a confirmation of a conveyance or contract by an infant, after he arrives of age, there must be some distinct act, by which he either receives a benefit from the contract after he arrives at age, or does some act of express ratification. There is much good sense in these decisions, and they are indis- pensable to a just support of the rights of infants according to the common law. Besides, in the present case, as Barry was in pos- session of the premises during the whole period until the execu- tion of his deed to Mrs. Moreland, there was no evidence to justify the jury in drawing any inference of any intentional acquiescence in the validity of the deed to Wallach. The third instruction is, for the reasons already stated, unmaintainable. The deed to Mrs. Moreland contains a conveyance of the very land in controversy, with a warranty of the title against all persons claiming under him (Barry), and a covenant that he had good right and title to convey the same; and, therefore, is a positive disaffirmance of the former deed. The fourth instruction proceeds upon the sup- position, that, if the deed to Mrs. Moreland was fraudulent between the parties to it, it was utterly void, and not merely voidable. But itis clear that between the parties it would be binding and available ; however, as to the persons whom it was intended to defraud, it might be avoidable. Even if it was made for the very purpose of defeating the conveyance to Wallach, and was a mere contrivance for this purpose, it was still an act com- petent to be done by Barry, and amounted to a disaffirmance of the conveyance to Wallach. In many cases, the disaffirmance of a deed made during infancy is a fraud upon the other party. 1 See Boston Bank v. Chamberlain, 15 Mass. 220. 140 INFANCY. But this has never been held sufficient to avoid the disaffirmance, for it would otherwise take away the very protection which the law intends to throw around him, to guard him from the effects of his folly, rashness, and misconduct. In Saunderson v. Marr, 1 H. Bl. 75, it was held, that a warrant of attorney given by an infant, although there appeared circumstances of fraud on his part, was utterly void, even though the application was made to the equity side of the Court, to set aside a judgment founded on it. So, in Conroe v. Birdsall, 1 Johns. Cas. 127, a bond made by an infant, who declared at the time that he was of age, was held void, notwithstanding his fraudulent declaration ; for the Court said that a different decision would endanger all the rights of infants. A similar doctrine was held by the Court in Curtin v. Patton, 11 Serg. & Rawle, 309, 310. Indeed the same doctriné is to be found affirmed more than a century and a half ago, in Johnson v. Pie, 1 Lev. 169; s. c. 1 Sid. 258; 1 Keb. 995, 913.1 But what are the facts on which the instruction relies as proof of the deed to Mrs. Moreland being fraudulentand void? They are “the relative positions of the parties to said deed, at and pre- vious to its execution;”’ that is to say, the relation of mother and son, and the fact that she had then instituted a suit against him, and arrested him and held him to bail, as stated in the evi- dence; and “ from the circumstances attending the execution of it;” that is to say, that Mrs. Moreland was informed by Barry, before his deed to her, that he had so conveyed the said property to Wallach, and that subsequently, and with such knowledge, she prevailed on Barry to execute to her the same conveyance. Now, certainly, these facts alone could not justly authorize a conclusion that the conveyance to Mrs. Moreland was fraudulent and void ; for she might be a bond fide creditor of her son. . And the consid- eration averred in that conveyance showed her to be a creditor, if it was truly stated (and there was no evidence to contradict it) ; and if she was a creditor, then she had a legal right to sue her son, and there was no fraud in prevailing on him to giveadeed to | © ~ satisfy that debt. It is probable that the instruction was designed to cover all the other facts stated in the bill of exceptions, though in its actual terms it does not seem to comprehend them. But, if it did, we are of opinion that the jury would not have been justi- fied in inferring that the deed was fraudulent and void. In the 1 See Bac. Abridg. Infancy & Age, H.; 2 Kent Com. Lect. 31. TUCKER UV. MORELAND. 141 first place, the proceedings in the Orphans’ Court may, for aught that appears, have been in good faith, and under an innocent mis- take of a year of the actual age of Barry. In the next place, if not so, still the mother and the son were not estopped in any other proceeding to set up the nonage of Barry, whatever might have been the case as to the parties and property involved in that pro- ceeding. In the next place, there is not the slightest proof that these proceedings had at the time, any reference to, or intended operation upon, the subsequent deed made to Wallach; or that Mrs. Moreland was party to, or assisted in, the negotiations or declarations on which the deed to Wallach was founded. Cer- tainly, without some proofs of this sort, it would be going too far to assert, that the jury might infer that the deed to Mrs. More- Mand was fraudulent. Fraud is not presumed either as a matter of law or fact, unless under circumstances not fairly susceptible of any other interpretation. The fifth instruction was properly refused by the Court, for the plain reason that there was no evidence in the case of any acts or declarations by Mrs. Moreland to the effect therein stated. It was, therefore, the common case of an instruction asked upon a mere hypothetical statement, wltra the evidence. The third bill of exceptions is as follows: “The Court having refused the second, third, fourth, and fifth instructions prayed by the plain- tiffs, and the counsel, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury; the counsel for the defendant thereupon prayed the Court to instruct the jury that, if from the evidence so as aforesaid given to the jury, and stated in the prayers for the said instructions, they should be of opinion that the said Richard was under the age of twenty-one years at the time he made his deed, as aforesaid, to the said Richard Wallach, under whom the plaintiffs claim tiein title in this case, and, that at the time he made his deed, as hereinbefore mentioned, to the defendant, he was of full age; that such last-mentioned deed was a disaffir- mance of his preceding deed to him, the said Richard Wallach ; and that in that case the jury ought to find their verdict for the defendant ; and that the evidence upon which the second, third, fourth, and fifth instructions were prayed by the plaintiff, as afore- said, which evidence is set forth in the instructions so prayed, is not competent in law to authorize the jury to find a verdict for the 142 INFANCY. - plaintiff upon any of the grounds, or for any of the reasons set forth in the said prayers, or to authorize them to find a verdict for the plaintiff, if they should be of opinion that the said Richard Barry was under theage of twenty-one years at the time he made his deed, as aforesaid, to the said Richard Wallach. Which instruc- tion the Court gave as prayed, and the counsel for the plaintiff excepted thereto.” It is unnecessary to do more than to state that the bill of exceptions is completely disposed of by the considerations already mentioned. It contains no more than the converse of the propositions stated in the second bill of exceptions, and the reas- sertion of the instruction given by the Court in the first bill of exceptions. Upon the whole, it is the opinion of the Court, that the judgment of the Circuit Court ought to be affirmed with costs. See notes to Fetrow v. Wiseman As to avoidance of judgments, see (ante, p. 30); Mustard ». Wohlford’s Sliver v. Shelback, and notes to Mills’v. Heirs (infra). Dennis (post). MustarpD v. WonLForD’s HEtRs. (15 Grat. 329. Court of Appeals of Virginia, July Term, 1859.) Title Bond of Infant voidable. ‘Disaffirmance.— Where an infant sells certain land, executes a title bond with a penalty, with condition to make title thereto, and puts the purchaser in possession, the contract is voidable, but not void; and a sale by the infant, after reaching majority, to another person, and the execution to such second purchaser of a like title-bond, is an avoiding of the first contract. Conveyance by one out of Possession valid. — In Virginia, a party out of posses- sion may convey his interest in land; and, therefore, though the first purchaser is in possession, and, subsequently to the execution of said second title-bond, and after the infant has arrived at majority, with knowledge of such second sale, has received a conveyance, yet the infant may thereafter convey the premises to the second vendee, and his deed therefor is not void, as of land adversely possessed. No entry before executing a deed is necessary. The Effect of the Disaffirmance} of the first contract was to render it void ab initio by relation; and the parties revert to the same situation as if the con- tract had not been made. Return of Consideration on avoidance of contracts executed and executory con- sidered. — In the case of a contract of sale executory on the part of the infant, 1 See notes to Price v. Furman (post, p. 128). MUSTARD ¥. WOHLFORD’S HEIRS. 148 if he has during infancy wasted, sold, or otherwise ceased to possess the con- sideration, and has none of it in his hand in kind on his arrival at age, he is not liable therefor; and, if he has delivered possession of the land contracted to be sold by him, he may recover it back without accounting for the consid- eration received, Purchaser taking the first Deed a Trustee of the legal Title. —In this case the purchaser, taking the deed with knowledge of the execution of the second title bond as aforesaid, can derive no benefit therefrom, but is a trustee of the legal title for such second purchaser, or, in case of his death, for his heirs; and, though the second purchaser purchase with knowledge of the first sale by the infant, he is not affected thereby, the same having been avoided by such second sale. Claim of Purchaser whose Contract was annulled a personal Claim only. — Any claim against the infant on account of payment made under the first contract, or to obtain the deed, is a personal claim agairist the vendor, and not enforce- able in a suit brought by the second purchaser to have the said deed annulled, and to obtain the legal title to the land. Decree of Court below for a conveyance to said second purchaser amended so as to be without prejudice to the vendor's lien for unpaid purchase-money, and so amended affirmed. ALEXANDER NISEWANDER, being entitled to an undivided fifth of a tract of land, subject to his mother’s life-estate in one third thereof, contracted, during his infancy, to sell his said interest to John Mustard for the sum of eight hundred dollars; and on the same day, to wit, the 16th day of January, 1852, executed a title bond in the penalty of one thousand six hundred dollars, conditioned to make a good deed with general warranty to the purchaser for the said interest on the 3d of November, 1853, that being the day on which the vendor would attain the age of twenty-one years. Three hundred dollars of the purchase-money were paid, according to the contract, in a house and lot in Mechanicsburg. No other payment was made during the infancy of the vendor, except about forty dollars, the amount of a debt assumed for him by the vendee. For the balance of the purchase- money, the vendee executed his bond, but it does not appear when it was made payable; though it was, probably, when the deed should be executed by the vendor, on or after his arrival at lawful age. It does not appear that any deed, or even title-bond, was ever executed to¥Nisewander for the house and lot in Mechanicsburg. It seems that that property was worth about three hundred dollars, and that he might have sold it for that sum if he had been of age, or could have given security to make 144 INFANCY. a good title when he became of age. But not being able to do so, and being in want of money, he offered to sell it for one hundred dollars; and, among others, offered to sell it to the appellant Mustard at that price. The appellant said he did not want it, but that his son Hugh would buy it. And Nisewander did sell it to Hugh Mustard and Addison Harmon for about one hundred dollars; which was accordingly paid. The same prop- erty was afterwards sold by the appellant to another person for three hundred dollars, paid partly in cash and the balance in trade. Nisewander, having become dissatisfied with his sale to the appellant, determined, and often declared, that he would not, on his arrival at age, confirm the sale and make a deed according to his title-bond; and these declarations were sometimes made in presence of one or two of the appellant’s sons, but not of the appellant himself. After his arrival at age, he persisted in this determination, and so declared; and on the 8th day of November, 1853, he contracted to sell his interest in the land to Samuel Wohlford for eight hundred dollars; of which one hundred dol- lars was paid in cash, and for the balance three bonds were exe- cuted, payable at future periods; and he executed a title bond, conditioned to make a deed before the last payment should become due. When Nisewander applied to Wohlford to make this purchase, the latter knew that the former had contracted during infancy to sell his interest to the appellant, and asked him if he did not intend to comply with his said contract; and the former replied that he did not; whereupon the latter made the purchase, and received the title-bond aforesaid. A few days after this purchase the appellant endeavored to obtain from Nisewander indemnity for the money paid on their contract as aforesaid ; and, failing in that, endeavored to induce Wohlford to agree to rescind his contract with Nisewander upon the return of the money and bonds received by the latter; but Wohlford ' refused todo so. Shortly thereafter, to wit, on the 18th of No- vember, 1853, the appellant induced Nisewander to execute a deed conveying the land to him, in consideration of the sum of nine hundred dollars, being one hundred dollars more than the amount of the purchase-money before agreed upon between them; which sum of one hundred dollars was paid at the time of the execution of the deed. Very soon after the execution of the said deed, and during the same month of November, 1853, Wohlford insti- MUSTARD ¥. WOHLFORD’S HEIRS. 145 tuted this suit for the purpose of having the deed annulled, as having been fraudulently obtained by the appellant with a full knowledge of the equitable rights of Wohlford, and of obtaining the legal title to the said interest, and a partition of the land and an allotment of his several portion thereof. The appellant in his answer admits that he obtained the deed with full notice of the prior sale and title-bond to Wohlford, but says, in substance, that he had long previously purchased the same property, and received a title-bond therefor from Nisewander during his in- fancy, of which purchase and title-bond, as well as of the fact that respondent had paid a considerable part of the purchase-money, the plaintiff had full notice at the time he made his purchase and obtained his title-bond as aforesaid ; that whether the plaintiff had such notice or not, respondent insists that, having acquired the first equitable title, he had a right, notwithstanding his knowledge of any subsequently acquired equity of the plaintiff, to perfect his purchase, if he could, by obtaining a conveyance of the legal title ; that, although Nisewander was under age at the date of the title-bond to respondent, yet it was not on that account void, but only voidable, and might be affirmed or dis- affirmed at the election of said vendor, after he arrived at lawful age; that the sale and title-bond to Wohlford were not a disaffirmance, but the deed to respondent was an affirmance of the said title-bond to respondent, notwithstanding the payment of the additional sum of one hundred dollars as afore- said, which was not intended to change the original contract, but merely to induce its affirmance; which respondent had a right to do. Nisewander, in his answer, admits the contracts of sale made by him with the appellant and Wohlford respectively, the former before and the latter after he became of age, and states that a considerable portion of the purchase-money due under the former contract was paid, or attempted to be paid, in a house and lot for which he had no use, and owing to the advan- tage thus taken of him, he determined, before he became of age, and expressed the determination frequently and publicly, that he would not confirm the contract; that after he became of age he expressed the same determination to various persons, and among them to Wohlford, and offered to sell him the land, which Wohlford then bought; that after making this contract with Wohlford, he was, by the free use of liquor supplied by * 10 146 INFANCY. Powers, acting for Mustard, prevailed upon to make a deed for the land to Mustard, which he would not have done if he had been sober; that at the time of. the execution of the deed Mustard paid him one hundred dollars more than the original contract price; and that the sale to Wohlford was a fair one, made when respondent was sober, for a fair consideration, and he had no desire to defeat it. The facts, as before stated, are fully proved by the evidence, which also tends to prove that the deed from Nisewander to Mustard was obtained by undue and improper means practised by the agent of the latter; but that fact is immaterial, in the view taken of the case by the Court. On the 11th of April, 1857, a decree was rendered in the cause, reciting that Wohlford having died pending the suit, it had been revived in the name of his heirs, declaring the deed from Nisewander to Mustard to be fraudulent and void, directing the same to be set aside and cancelled, and that Mustard should convey to the said heirs all the title vested in him by said deed, and appointing commissioners to make partition as prayed for in the bill. From that decree, Mustard applied to this Court for an appeal, which was allowed. N. Harrison and Grattan, for the appellant, insisted: Ist. That Mustard having been in possession of the land and having the legal title, a Court of equity will not compel him to surren- der the possession and title to a man who had knowledge of the fact of his purchase and possession, and his having paid a part of the purchase-money without requiring him to return to the defendant what he had paid. Payne v. Dudley, 1 Wash. 196; Lipscomb’s Adm’r v. Littlepage’s Adm’r, 1 Hen. & Munf. 454; 2Sugd. Vend..9 ed. p. 260, § 4; Fagg’s Case, 1 Vern. 52. And even an infant coming into a Court of equity to avoid a contract, must return what he has received. Zouch v. Parsons, 3 Burr. 1794; Badger v. Phinney, 15 Mass. 359; 2 Kent’s Com. 240, marg.; Smith v. Evans, 5 Humph. 70; Roof v. Stafford, 7 Cow. 184; Roberts v. Wiggin, 1 N. Hamp. 73; Weeks v. Leighton, 5 id. 348; North-west Railway Co. v. McMichael, 5 Exch. 123; Addis. Cont. 87; Amer. Lead. Cas. 260; Hillyer v. Bennett, 8 Edwards Ch. 222; Brawner v. Franklin, 4 Gill, 463; Weed v. Beebe, 21 Yt. 495, 500. 2d. That it is not a case for specific performance. To entitle Wohlford to sustain his bill, he must show that his vendor was in a condition to enforce MUSTARD V..WOHLFORD’S HEIRS. 147 a rescission of his contract with Mustard,:and that he is entitled to ask the specific execution of his contract with Nisewander ; that, Nisewander could not enforce a rescission, first, because he could not return the consideration he had received; and second, because, after coming of age, he had executed the con+ tract by conveying the land to Mustard. And the plaintiff cannot sustain his bill, because he could have no better equity than Nisewander. And further, he knew when he purchased that Mustard was in possession under a contract with Nise- wander, and had paid part of the purchase-money, which he would lose if his contract was avoided. At most, therefore, it was a case for compensation. Armstead v. Hundley, 7 Gratt. 52; Parrell v. McKinley, 9 Gratt. 1. 8d. That although it was true that the contract was voidable by Nisewander, and only voidable: 1 Amer. Lead. Cas. 244, 248; Abell » Warren, 4 Verm. 149; Oliver v. Houdlet, 138 Mass. 237; Bool and Wife v. Mix, 17 Wend. 119, 181; yet Mustard having been put into possession of the land, the sale of the land by Nisewander to Wohlford whilst Mustard’s possession continued, did not avoid the previous contract with Mustard: Jackson v. Burchin, 14 John. 124; Jackson v. Carpenter, 11 id. 589; Tucker v. More+ land, 10 Peters, 58, 79; 1 Amer. Lead. Cas. 257. Staples and Wade, for the appellees, insisted: 1st. That ad- mitting the contract with Mustard to be only voidable, and not void, the sale and execution of his title-bond by Nisewander to Wohlford, after coming of age, was a disaffirmance of his con- tract with Mustard. Tucker v. Moreland, 10 Peters, 58; 1 Par- sons’ Cont. 273; Jackson v. Burchin, 14 John. 124; Cresinger v. Lessee of Welch, 15 Ohio, 156; 1 Amer. Lead. Cas. 114, note. And whilst it was true that in the States where one out of possession of land cannot sell, the infant would be required to enter upon the land sold during his infancy, in order to avoid the sale; yet in this State, and under our present statute, no such entry is necessary to enable an infant to avoid his contract made-during his infancy. 1 Amer. Lead. Cas. 114; 1 Parsons’s Cont. 273, 274. And if the sale to Wohlford was a disaffirmance of his contract with Mustard, no subsequent act of his could affirm that contract. 1 Amer. Lead. Cas. 111. 2d. That the proposition was well established, that if, during his infancy, an infant wasted or otherwise ceased to possess the property acquired 148 INFANCY. by the contract, he was not thereby deprived of his right of election, and might nevertheless, on coming of age, avoid the contract, and take the property given in exchange; and that, in this case, Mustard was in no situation to insist upon a different rule, since by his own act he has deprived the infant of the power to return the property acquired by the con- tract. 3d. That if it was true, as they contended, that the con- tract with Mustard was avoided by the contract with Wohlford, then Mustard had no equity either as against Nisewander or Wohlford ; and having obtained the legal title with a knowledge of Wohlford’s equity, he held it as trustee for Wohlford, and a Court of equity would compel him to convey it to him. That not having an equity to insist upon the return of the property which he had transferred to Nisewander as against him, he could have none on that ground against Wohlford. Moncursg, J., delivered the opinion of the Court. The Court is of opinion, that the contract of the 16th of January, 1852, between Nisewander and the appellant, though made when the former was under age, and when that fact was known to the appellant, was not a void contract, but only voidable, and subject to be affirmed or disaffirmed by the former, after his arrival at age. ‘The tendency of the modern decisions,” says Chancellor KEnt, ‘is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election, when they become of age, either to affirm or disavow them.” 2 Kent Com. 235. The authorities on this subject are fully collected in the valuable notes of Hare and Wallace, appended to the case of Tucker, &c. v. Moreland, in 1 Amer. Lead. Cas., ed. 1857, p. 224— 267. And from the numerous decisions which have been had in this country, the annotators deduce the following definite rule, as one that is subject to no exceptions: ‘The only contract binding on an infant is the implied contract for necessaries; the only act which he is under a legal incapacity to perform, is the ap- pointment of an attorney: all other acts and contracts, executed or executory, are voidable or confirmable by him at his election.” Id. 244. It is not material that the title-bond in this case is in a penal sum ; though it has been said that a bond of an infant with a penalty is void. Coke Lit. 172 a, recognized as being MUSTARD v. WOHLFORD’S HEIRS. 149 still the law by Bayty, J., in 83 Maule & Sel. 482. The pen- alty of the bond is a mere matter of form, the substance of the contract being the condition on which may be maintained an action of covenant at law or a suit for specific performance in equity. See also 38 Rob. Pr. (new) 221-228. The Court is further of opinion that the said contract was disaffirmed by the contract of the 8th of November, 1853, between Nisewander and Wohlford, made after the former arrived at age. There is no evidence, nor even pretence, of any affirmance of the former con- tract by Nisewander after he arrived at age and before he entered into the latter, which was but eight days after his arrival at age. On the contrary, he persisted during that period, in declaring that he would not confirm the former contract. Then the question is, Did not the latter amount to a disaffirmance of the former? A voidable act of an infant may be avoided by differ- ent means, according to the nature of the act; but, without un- dertaking to enumerate them, it is sufficient for the purposes of this case to say, that such an act may certainly be avoided by him after he becomes of age, by an act of the same nature and dignity. Thus a feoffment may be avoided by a feoffment; a deed of bargain and sale, by a deed of bargain and sale; a title- bond, by a title-bond, &c.; the two acts in these cases being of the same nature and dignity. It is not necessary, in order to produce that effect, that the latter act should expressly disaffirm the former. It is enough that the two acts are inconsistent with each other; in which case the former is disaffirmed by plain and necessary implication. The case of Frost v. Wolveston, 1 Strange, 94, seems to have proceeded on this principle. There an infant covenanted to levy a fine by a certain time, to certain uses; and before he came of age he levied the fine, and by another deed, made at full age, he declared it to be to other uses: the Court held that the last deed should be the one to lead the uses. So also did the cases of Jackson v. Carpenter, 11 John. 539; Jack- son v. Burchin, 14 id. 124; and Tucker v. Moreland, 10 Peters, 58. In these cases, deeds of bargain and sale were avoided by deeds of the same nature to other bargainees. In the last of them, Judge Story said the first two ‘‘are directly in point, and proceed upon principles which are in perfect coincidence with the common law, and are entirely satisfactory.” In these cases the first grantee was not in actual possession when the 150 INFANCY, second deed was executed, but the land was either vacant, or the grantor remained in possession. If there be an adverse pos- session, then; it is said in those States where one out of possession cannot sell, there should be an entry by the grantor in order to avoid the first deed by another. 1 Am. Lead. Cas. 257, and the cases cited. But no entry is necessary in those States in which one out of possession of real estate can sell his interest therein. 1 Parsons on Cont. 273. That is the case in this State, under the Code, ch. 116, § 4, 5, p. 500; which provides, ‘ that all real estate shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery,” and that ‘any interest in or claim to real estate may be disposed of by deed or will.” Carrington v. Goddin, 13 Gratt. 587. But in this case, though the first vendee appears to have been in pos- session when the second title-bond was executed, such possession was not adverse to the vendor, but in subordination to the title which still remained in him, and which would have been con- veyed by him independently of the statute, and without any actual entry. In any view of the case, therefore, the contract with Wohlford was a disaffirmance of the contract with the ap- pellant. The Court is further of opinion, that the effect of such dis- affirmance was to render the ‘first-mentioned contract void; to extinguish any interest in law or equity the appellant may have acquired under it; and to entitle Nisewander, or his vendee, Wohlford, in his name, to recover possession of the land in an action at law, and hold it free from any equity of the ap- pellant. When a voidable contract of an infant is disaffirmed by him, it is made void ab initio by relation, and the parties revert to the same situation as if the contract had not been made. 1 Am. Lead. Cas. 259; Boyden v. Boyden, &c., 9 Met. 519, 521. Ifthe contract was one of sale by the infant, he becomes reinvested with his title to the property, and may demand and recover it, not only of the vendee, but of any other person who may have it in possession. The right of an infant to avoid his contract is an absolute and paramount right, superior to all equities of other persons, and may therefore be exercised against purchasers from the vendee. 1 Am. Lead. Cas. 258; citing Myers, &c. v. Sanders’s Heirs, 7 Dana, 506, 521, and Hill »v. Anderson, 5 Smedes & Marsh. 216, 224. He who deals with an MUSTARD v. WOHLFORD’S HEIRS. 151 infant deals at his peril, and subject to this right of the infant to disaffirm and avoid the contract. This is the case, even though he deal in ignorance of the infancy, and on the fraudulent repre- sentation of the infant that he is of full age. Van Winckle », Ketcham, 3 Caines’s Cas. 823; Conroe v. Birdsall, 1 John. Cas, 127, and other cases cited in 1 Am. Lead. Cas. 249. A fortiori it is the case where, as here, the dealing is with full knowledge on the part of the adult of the infaney | of the other contracting party. While the effect of avoiding the contract of sale by an infant is, on the one hand, to entitle him to demand and recover the property sold, so it is, on the other hand, to entitle the other contracting party to demand and recover the consideration re- ceived by the infant, or so much of it as may then remain in his hands in kind. Indeed, if the infant, after arriving at age, and before any act of disaffirmance by him, alien any part of the con- sideration, or exercise any unequivocal act of ownership over it, or retain it in his hands in kind for an unreasonable length of time, he may thereby affirm the contract and render it absolutely binding. Id. 255. But if he has, during infancy, wasted, sold, or otherwise ceased to possess the consideration, and has none of it in his hands in kind on his arrival at age, he is not liable therefor, and may recover possession of the property sold by him (at least if the contract of sale be executory merely on his part) without accounting for the consideration received. ‘+ The true tule,” as stated in Story on Contracts, § 42, “seems to be, that when articles are furnished to the infant which do not come within the definition of necessaries, and which are consumed or parted with, or when money is lent which is expended by the infant, the other party has no remedy to recover an equivalent for the goods or money ; the specific consideration given by him being parted with, or not being capable of return. But when the specific consideration, whatever it be, exists, and remains in the hands of the infant at the time of the disaffirmance of the contract, and is capable of return, the infant is bound to give it up, and he is treated as a trustee of the other party, if the con- tract be made originally in good faith. The ground of sucha distinction is, that, in the first case, the goods or money cannot be returned ; and to make the infant liable therefor in damages, merely because they had been used by him, would be to deprive him of his privilege of affirming or avoiding his contract.” See 152 INFANCY. also Boody v. McKenney, 28 Maine, 517. In the case of an executed sale by an infant, it has been held, that if he disaffirm the sale and seek to recover back the article sold, he must restore the purchase-money or other consideration, Smith v. Evans, 5 Humph. 70; Badger v. Phinney, 15 Mass. 359, 363; and if he go into chancery to set aside his conveyance, he must offer in his bill to restore the purchase-money. Hillyer v. Bennett, 8 Edw. Ch. 222. Without expressing any opinion upon this ques- tion, it is sufficient for the purposes of this case to say, that no case of an executory contract of sale by an infant has been found, in which the infant, disaffirming the contract after his arrival at age, has been held accountable for the consideration received and spent by him during his infancy; but all the authorities on the subject seem to be the other way. If the infant in any such case has delivered possession of land contracted to be sold by him, he has an unconditional right to recover it back in an action at law; and a Court of equity will not restrain him from doing so, hor impose terms upon the exercise of his right. Such was the decision of the Court in Brawner & Wife v. Franklin, &c., 4 Gill, 463. Dorsey, J., in delivering the opinion of the Court, said: “« Establish the doctrine now contended for, and what is the result? Why, that the whole policy of the law as to infan- tile incompetency to sell, waste, and dispose of their property and estates is frustrated. . . . An infant may sell his patrimonial estate, prodigally waste the purchase-money in extravagance, gambling, and dissipation ; and if, when arrived at years of ma- turity and discretion, he disaffirm the contract, and sue at law for the recovery of his property, a Court of equity will, by injunc- tion, arrest the arm of the law, and say to him, Before you ‘shall further assert your claim to your estate, you must repay to the purchaser all the money you have received from him.” “To ~ such a doctrine the Court refused to subscribe, and, we think, rightly so. The Court is further of opinion, that the appellant having no equity in regard to the land when he obtained the deed of the 18th of November, 1858, and having obtained it with full knowledge of the equity of Wohlford, can derive no benefit from the said deed, but holds the legal title acquired under it in trust for the heirs of Wohlford, and may be compelled by a Court of equity to convey said title to them. A purchaser for valuable consideration without notice of a prior equity, and having the MUSTARD ¥. WOHLFORD’S HEIRS. : 153 legal estate, is entitled to priority in equity as well as at law, according to the maxim, that where equities are equal, the law ‘ shall prevail. He is a great favorite of a Court of equity, and has been protected to such an extent as to be allowed to take advan- tage of a deed which he stole out of a window by means of a ladder, and a deed obtained by a third person without considera- tion and by fraud. Flagg’s Case, cited in 1 Vern. 52; Harcourt v. Knowel, cited in 2 Vern. 159; and Culpeper’s Case, cited in 2 Freem. 124. “These, however (it has been well said), were extreme cases, showing, indeed, how partial equity is to a pur- chaser, but carrying the doctrine of protection further than it would be at the present day.” 2 White & Tudor’s Eq. Cas. 6; notes to Basset v. Notworthy; 2 Sugd. Vend. 1020. And it has been held that a purchaser “shall not protect himself by taking a conveyance from a trustee after he had notice of the trust ; for by taking a conveyance with notice of the trust, he himself be- comes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust.’’ Saunders v. Dehew, 2 Vern. 271. If, therefore, the appellant could be regarded as a bond fide purchaser when he obtained the deed from Nisewander, he could derive no protection from that deed, which was obtained from a mere trustee of the legal title for Wohlford, and with full knowl- edge on the part of the appellant of the existence of the trust. Indeed, if he had then been a bond fide purchaser, he would not have needed the deed for his protection against Wohlford, who, in that case, would have been a purchaser with notice of his prior equity ; but the appellant cannot be regarded as a purchaser at that time. He had received no conveyance, and paid only a part of the purchase-money. His purchase was never more than voidable, and had been avoided, and he ceased to have any equity in regard to the land; but Nisewander was left free to dispose of it as if he never had sold it to the appellant. So that, Wohlford’s purchase, though made with notice of the prior sale to the appellant, was entirely unaffected thereby, the same having been disaffirmed and avoided. And the appellant, having obtained the deed with full notice that the person from whom he obtained it was a mere trustee of the legal title for Wohlford, became himself a mere trustee of that title, and bound therefore to convey it to Wohlford’s heirs. The Court is further of opin- ion, that any claim which the appellant may have on account of 154 INFANCY. payments made under the original contract with him, or as a consideration for the execution of the said deed, is a personal claim against Nisewander, and cannot be enforced in this suit. It has been already shown that the appellant has no interest in, or claim to, the land itself. Nor has he any in or to the pur- chase-money, if any, due by Wohlford. If he has, he must have derived it from the deed. But that is a conveyance of the land, and not an assignment of the purchase-money. It is adversary to the sale to Wohlford, and not in subordination to it. A claim founded thereon is in conflict with the specific execution of Wohlford’s purchase, to which he is entitled, and which is the purpose of this suit. Such claim, therefore, cannot be enforced in this suit. The Court is further of opinion, that it sufficiently appears from the recital contained in the decree appealed from that the cause had been duly revived in the name of the heirs of Wohlford, Craig v. Sebrell, 9 Gratt. 181; but at all events, the appellant has no right to complain of any irregularity in that respect, the said decree being in the name and favor of said heirs, and they being parties to and defending this appeal. The Court is therefore of opinion, that there is no error in the said decree to the prejudice of the appellant. But the Court is further of opinion, that as it does not appear that the whole purchase- money due by Wohlford had been actually paid when the said decree was rendered, though it had then become payable; and, as the said land was subject to a lien for so much of the said purchase-money as may then have remained unpaid, the said decree should have been without prejudice to such lien, and to any proceedings for the enforcement thereof, which the said Nisewander, or his assigns, might be advised to institute; and that the said decree should be amended in that respect, and, as amended, affirmed. We find the doctrine now generally admitted that sales of land may be avoided after reaching majority, by entry, ejectment, writ dum fuit infra etatem, by special plea, or by any act distinctly and unequivocally manifest- ing an intention to disaffirm. See the rule stated in Drake v. Ramsay, 5 Obio, 253 (ante, p. 98); see also Miles »v. Decree amended and affirmed. Lingerman, 24 Ind. 386 (notice of in- tention to disaffirm); 1 Pars. on Cont. (5th ed.) 322; 1 Am. Lead. Cas. (4th ed.) 257, As to what will amount to a con- firmation of the voidable deed of an infant, see the latter part of this note. That a deed of land executed by an Ss MUSTARD ¥. WOHLFORD’S HEIRS. infant during minority may, if not al- ready, after reaching his majority, rati- fied by him, be disaffiirmed by him after reaching majority, by the execution of a second deed of the same prem- ises to another person, is well settled.' Tucker v. Moreland (supra, p. 128); Hoyle v. Stowe, 2 Dev. & Bat. 320; Peterson v. Laik, 24 Mo. 544, and cases there cited: Cresinger v. Lessee of Welch, 15 Ohio, 192; Pitcher v. Laycock, 7 Ind. 398; Youse v. Nor- coms, 12 Mo. 564; Hastings v. Dollar- hide, 24 Cal. 211. See also Inman v. Inman, L. R. 15 Eq. 260; 21 W. R. 433. So a title-bond executed by an in- fant may be avoided by a title-bond for the same premises executed after reaching majority. Mustard v. Wohl- ford’s Heirs, 15 Grat. 329 (ante). But if such deed has, after reaching majority, been ratified, such ratification cannot be revoked, and the deed dis- affirmed thereafter.? Hastings v. Dol- larhide (supra). “But this (the disaffirmance first above referred to), must be understood of absolute deeds inconsistent with each other, thereby making it manifest that it was the intention of the party to disaffirm the former deed.” ‘+ To ren- der a subsequent conveyance by an infant an act of dissent to his prior deed, it must be inconsistent therewith, so that both cannot properly stand to- gether.” McGan v. Marshall, 7 Humph. 126 ; Eagle Fire Co. v. Lent, 6 Paige, Ch. 635 (a quit-claim deed) ; Leitensdorfer v. Hempstead, 18 Mo. 269, where a conveyance of “all their right, title, and interest,” &c., in the 155 tract, was held to operate on an inter- est acquired by descent subsequently to the first deed, and not to be an avoid- ance of the prior deed. ‘‘But a subsequent mortgage or deed of trust is not inconsistent with the former one;” ‘‘ and the execution of such mortgage by a party who had during infaney executed a prior/mort- gage would not indicate an intention to disaflirm such mortgage.” McGan v. Marshall (supra). Neither does the subsequent execu- tion of a deed of the mortgaged premises to a third person, without re- ferring to the mortgage, amount to a disaffirmance of such mortgage exe- ented during infancy. Where the con- trary is not expressed, the intent of the deed will be deemed to be that the grantee shall take subject to any prior mortgage. Palmer v. Miller, 25 Barb, 399 (reported in full post). As to the rule in cases of chattel mortgages, see ante, note (1). When the infant. remains in posses- sion of the land, or the land is unoccu- pied, or where, though the first vendee is in possession, such possession is not adverse, and in those States where one out of possession can sell and convey his interest therein, according to the better opinion it seems that no entry is necessary before executing the second deed ; indeed, in some of the cases the doctrine that the voidable deed of an infant may be avoided by such second deed after reaching majority is laid down without any qualification what- ever. See Tucker v. Moreland; Peter- son v. Laik; Cresinger v. Lessee of Welch; Pitcher v. Laycock; Youse v. 1 So an unconditional sale and delivery to a third party of chattels mortgaged by an infant is a disaffirmance of the mortgage. Chapin v. Shafer, 49 N. Y. 412; State v. Plaisted, 48 N. H. 418. So also getting possession again after majority of a chat- tel sold while an infant, and selling it again, is a disaffirmance. Williams v. Norris, 2 Littell (Ky.), 157. 2 And “ when a minor makes two sales of the same piece of property ” (slaves in this case) “ during his minority, — if he ratify the younger sale first, after his attain- ing his full age, it will defeat a subsequent ratification of the former sale.” Derrick v. Kennedy, 4 Porter, 41. t 156 Norcoms; Mustard v. Wohlford's Heirs (supra), and the cases therein cited; also, Harris ». Cannon, 6 Geo. 882; Scott v. Buchanan, 11 Humph. 473; Norcoms v. Gaty, 19 Mo. 69. But if the land is held adversely, then in those States where one out of possession cannot convey, an entry should be made by the grantor. See Bool v. Mix, 17 Wend. 183; Harris v. Cannon, 6 Geo. 382; Harrison v. Adcock, 8 Geo. 68; Dominick v. Michael, 4 Sandf. (N. Y. Sup’r Ct.) 421. See also, Inhabitants of Worces- ter v. Eaton, 13 Mass. 375; Voorhies v. Voorhies, 24 Barb. 150. Such voidable deed may also be avoided at majority by action of eject- ment to recover possession of the premises, or by other appropriate pro- cess. Some of the cases lay down the rule that the mere bringing of the suit is a sufficient avoidance without previ- ous notice or entry. See Phillips v. Green, 3 A. K. Marsh. 12 (a writ of right) ; Scott v. Buchanan, 11 Humph. 469, 474 (ejectment) ; Chadbourne v. Rockliff, 30 Me. 355, 361 (writ of entry); Hughes v. Watson, 10 Ohio, 134 (a bill in chancery for dower, cit- ing as authority Drake v. Ramsay, 5 Ohio, 252, an ejectment). See also Cresinger v. Welch, 15 Ohio, 192; 14 Ill. 162. Others require notice of intention to disaffirm, previous entry upon the land (it not being vacant and uncultivated), or ‘‘ some other act of equal notoriety ” in avoidance of the infant’s deed; and _ that ‘‘ the avoidance, whatever may be its form, must precede the bringing of an action to recover possession.” See Clawson v. Doe, 5 Blackf. 300 (eject- ment); Doe v. Abernathy, 7 Blackf. 442°(ejectment) ; Law v. Long, 41 Ind. 586 (action to obtain assignment of dower); Bool v. Mix, 17 Wend. 135 (ejectment) ; Voorhies ». Voorhies, 24 Barb. 152 (action to have conveyances executed by infant declared null and void, and to recover possession) ; Wal- lace’s Lessee v. Lewis, 4 Harr. (Del.) INFANCY. 80 (ejectment). See also Dominick v. Michael, 4 Sandf. (N. Y. Sup’r Ct.) 420. The authorities on this point are well collected in Law v. Long, 41 Ind. 586, 598. Of the former class of cases (some of which are not possessory actions), it may be remarked that in most of them the attention of the Courts delivering the opinions does not appear to have been directed particularly to the point in question, and the point is not exten- sively discussed or considered upon either principle or authority; and it seems that upon principle such voida- ble deeds cannot be avoided by action of ejectment, or any possessory action regarding the defendant as a wrong- doer, without previous notice or entry, &c., in accordance with the require- ments of the second class of cases. The reasoning upon this point seems entirely satisfactory. In Clawson »v. Doe, the status of the defendant is thus referred to: ‘‘ The action of ejectment is an action of trespass, and the defend- ant is always regarded by the plaintiff as a trespasser. Hence, where an in- dividual is in the possession of land, with the permission or acquiescence of the owner, a suit cannot be sustained against him for the possession without a notice to quit, or until there be a demand of possession and a refusal, or until he be guilty of some other act which will make him a wrong-doer. And this rule applies whether the de- fendant be in possession under a con- tract of sale, or as a tenant.” Again, in Wallace's Lessee v. Lewis, the following language is used in refer- ence to this point: ‘¢ This deed being operative at and after its execution, the defendant went into possession of the premises under it rightfully, and the plaintiff is not at liberty to treat him as a trespasser, or as one in by wrong, until by avoiding the deed he places him in this position. The action of ejectment necessarily supposes the de- fendant to be a trespasser, and we are of the opinion that it cannot be main- MUSTARD v. WOHLFORD’S HEIRS. tained in a case like the present with- out a previous act on the part of the plaintiff *s lessor, avoiding the deed made by him while an infant, and under which the defendant is in possession.” And in Bool v. Mix, it is said that “ Although the title of the tenant may be defeated, yet so long as the deed remains unrevoked, he has the legal seisin of the land, and cannot be sued asatrespasser. It is little better than a contradiction of terms, to say that a man who has the rightful possession of lands can be treated as a wrong-doer. In the case under consideration, the deed remained in full force at the time the action was brought; the possession of the defendant was not tortious, and the action of ejectment cannot be main- tained.” ' As to other acts and contracts of in- fants, the rule as to the manner of their avoidance is stated in the princi- pal case, to be ‘‘ sometimes by plea, as when he is sued upon his bond or other contract;' sometimes by suit, as when he disaffirms a contract made for the sale of his chattels, and sues for the chattels,” &c. ‘+The general result seems to be that where the act of the infant is by matter of record, he must avoid it by some act of record,” &ec. ‘But if the act of the infant is a mat- ter in pais, it may be avoided by an act in pais of equal solemnity or noto- riety.” ‘* We do not mean to say that in all cases the act of disaflirmance should be of the same or of as high and solemn a nature as the original act, for a deed may be avoided by a plea. But we mean to say that if the act of disaffirmance be of as high and solemn a nature there is no ground to impeach its sufficiency.” There seems to be no reason to doubt but that the same rule applies in cases of acts (not of record or judicial) and contracts relating to persons or personal property, as in cases of sales 157 of land; viz., that they may be avoided by any act distinctly and un- equivocally manifesting an intention to disaffirm. For instances of such avoid- ance, see Vent v. Osgood, 19 Pick. 572; Whitmarsh v. Hall, 3 Denio, 375 (ante, p. 107); Moses v. Stevens, 2 Pick. 832; Dallas v. Hollingsworth, 3 Ind. 537; Walker v. Ellis, 12 Ill. 470; Price v. Furman, 27 Vt. 270 (ante, p- 119); Skinner v. Maxwell, 66 N.C. 47. See also 1 Am. Lead. Cas. 258; Tyler on Inf. & Cov. ch. v. § 31, p. 70; 1 Pars. on Conts. (5th ed.) 322. As to what acts after reaching ma- jority will amount to a confirmation of the voidable deed of an infant, it is said in Irvine v. Irvine, 9 Wall. U. S. 627, 628, that ‘‘ there is a well-recog- nized distinction between the nature of those acts which are nevessary to avoid an infant’s deed, and the character of those that are* sufficient to confirm it. The authorities frequently assert that such a deed cannot be avoided except by some act equally solemn with the deed itself. Some assert that it cannot be done by any thing short of an entry ; and this, whether the deed operates by livery of seisin, or transmits the title by virtue of the statute of uses. Others hold that it may be avoided, without a previous entry, by another deed made to a different grantee. But all the authorities recognize the doc- trine, that. acts which would be insuffi- cient to avoid such a deed may amount to an affirmance of it. While gener- ally it has been held that mere acquies- cence, though long continued, will not suffice; yet even that, in connection with other circumstances, may establish a ratification.” ‘* There is reason for this distinction between the effect of acts in avoidance, and that of acts of confirmation. We have seen that an infant’s deed is not void; it passes the title of the land to the grantee. Now, if the deed be avoided, the owner- 1 Thus infancy is a good defence to an action, upon a covenant in an article of apprenticeship. Frazier v. Rowan, 2 Brevard, 47; McKnight v. Hogg, 3 Brevard, 44. 158 ship of the land is retransferred. The seisin is changed. There is fitness in a rule that title to land shall not pass by acts less solemn than a deed; that its ownership shall not be divested by any thing inferior to that which conferred it.1 On the other hand a confirmation passes no title; it effects no change of property ; it disturbs no seisin. It is therefore itself an act of a character less solemn than is the act of avoiding a deed, and it may well be effected in a less formal manner.” In this case the plaintiff in the Court below asked an instruction, that an act of affirm- ance must be of as solemn a character as the deed itself, which was refused, and the jury instructed, among other things, that an act of confirmation, if not equally solemn with the deed, must be of such a solemn and undoubted nature, of such a clear and unequivo- cal character, as to establish a clear intention to confirm the deed after a full knowledge that it was voidable; ? and the Court say that ‘‘this was all the plaintiff had a right to demand; ” and it was held that where the infant having come of age and entered into partnership with third persons, took a lease for his firm of one part of the property, which as an infant he had conveyed, from the person to whom he had so conveyed that part with other parts, the lease signed and sealed by the plaintiff, was proper to go to the jury in a suit by the infant for those other parts alone, to show an affirm- vance of the whole, and that with such evidence before the jury the Court properly refused to charge that the evidence showed no affirmance. Since the rule, as stated above, re- quires less to confirm than to avoid the voidable deed of an infant, it seems quite clear that any act distinctly and unequivocally manifesting an intention to confirm, will effectuate that purpose, INFANCY. See the authorities cited at the begin- ing of this note; Hoyle v. Stowe, 2 Dev. & B. 320; Emmons »v.. Murray, 16 N. H. 385; Baker v. Kennett, 54 Mo. 88, and cases cited; also Wheaton’ v. East, 5 Yerg. 62, where it is said that ‘‘ any thing, therefore, from which his assent, after he arrives at age, may be fairly inferred, will be sufficient to affirm the deed made during infancy, and prevent him from afterwards elect- ing to disaffirm it.” A deed of conveyance, mortgage, lease, &c., executed by an infant may undoubtedly be confirmed by another deed executed by him after reaching majority for the purpose of confirming it; Phillips ». Green, 5 Mon. 344. And where a purchaser from the grantee of an infant subsequently took a quit- claim deed from the infant after he became of age, the latter deed was held to operate as a confirmation of the first, and not to overreach a mortgage given by the original grantee of the infant subject to which the grantee in the last deed purchased the property. See Eagle Fire Co. v. Lent, 1 Edw. Ch. 304; s.c. 6 Paige, Ch. 635. So by a recital in a second deed referring to it or recognizing its valid-. ity. See Boston Bank v. Chamberlain, 15 Mass. 220; Story v. Johnson, 3 Y. & C. 586; Murray v. Shanklin, 4 Dev. & B. 289; see also Middleton v. Hoge, 5 Bush, 478; Duvall v. Graves, 7 Bush (Ky.), 461, where a deed of trust executed by an infant to a trustee, in contemplation of marriage, with power to sell with the concurrence of the in- fant, was held confirmed by her joining in a deed under the power with the trustee atter becoming of age. Buta deed of confirmation is not necessary. See Wheaton v. East, 5 Yerg. 62. So where the widow and her hus- band and the guardian of minor heirs submitted to the award of three men to 1 See authorities cited at the beginning of this note. ® See rule stated to the same effect in Tucker v. Moreland, 10 Peters, 76 (ante, p. 128); Clamorgan v. Lane, 9 Mo. 472. MUSTARD ¥. WOHLFORD’S HEIRS. settle between them, and they awarded part of the land to the husband who had paid the debts of deceased, and the remainder to the children, who, after coming of age, conveyed their part by deed reciting the award, this was held to be a ratification of such partition, Johnston v. Furnier, 69 Penn. St. 449. And where a father acting for his minor son made partition of lands between him and the adult co-owner, and subsequently the father continuing to act for the son, but without any law- ful authority, sold and conveyed the portion set off to him to a third party, and the minor after becoming of age, with a knowledge of all the facts, exe- cuted to the grantee of such third party a quit-claim for the portion conveyed to such third party by the father, it was held that this quit-claim deed oper- ated as a ratification of the conveyance by the father, and this together with his long continued silence and acqui- escence in the acts of his father done in his behalf, and his knowledge that the adult relying on such parol partition claimed to own the part set off to him, and made no claim to the other part, estopped the infant from asserting any claim to the portion so allotted to the adult. Drake v. Wise, 36 Iowa, 476. And in Houser v. Reynolds, 1 Hay. (N. C.), 143 (decided at the March . Term, 1795), where the plaintiff and defendant both claimed under one Wright, who while an infant had con- veyed to Houser; and after full age to Reynolds; but after coming of age, and before he conveyed to Reynolds, he said to Houser: ‘I will never take advantage of my having been an infant at the time of executing the deed, and it is my wish that you should keep the land;” this was held a sufficient con- 159 firmation of his voidable deed executed during infancy. See also Hoyle v. Stowe, 2 Dev. & Bat. 320; Stern v. Freeman, 4 Met. (Ky.) 312; Bing. on Inf. * 65, note; 66. But see Emmons v. Murray, 16 N. H. 396; McCormic v. Leggett, 8 Jones’ Law, 427, where the opinion is expressed ‘‘ that in order to avoid! the deed, mere words are not sufficient, but there must be some deliberate act done, by which he takes benefit under the deed, or expressly recognizes its validity; e.g. if he takes a deed from the vendee for a part of the land which he had before conveyed, or if he re- ceives the whole or a part of the pur- chase-money due to him by force, and in pursuance of the contract under which the deed was executed. See the cases, Hoyle v. Stowe, 2 Dev. & Bat. 820; Armfield v. Tate, 7 Ired. 258; Murray »v. Shanklin, 4 Dev. & Bat. 276; Benton v. Sanders, Busb. 360.” And where an infant executed a deed, and, after becoming of age, ex- pressed satisfaction with her bargain, received a part of the consideration money, and spoke of her intention to make a confirmatory deed, but died suddenly, without having done so; this was held to be a sufficient ratifica- tion. Ferguson v. Bell’s Adm’r, 17 Mo. 347. And a guardian’s sale of the land of an infant may be confirmed by the in- fant’s election after majority to receive and retain the proceeds of such gale. Pursley v. Harp, 17: Iowa, 310. See also Highley v. Barron, 49 Mo. 103; Penn »v. Heisey, 19 Ill. 295. But see De Mill v. Lockwood, 3 Blatch. (C. C. R.) 56. So an unauthorized sale, by a com- missioner, of land devised to infants may in like manner be confirmed. 1 In the use ot the word “avoid” (supra), the learned chief justice evidently com- mitted a lapsus lingue, for it is difficult to infer an intention to avoid the deed from a deliberate act done, by which he expressly recognizes its validity. He evidently Meant to say “ confirm.” 160 Nelson’s Heirs v. Lee, 11 B. Mon. 502. So an acceptance of rent by an in- fant after becoming of age confirms a lease made by him during infancy. See Ashfield v Ashfield, W. Jo. 156; 8. c. Lat. 199; Paramour v. Yardley, Plow. 546. So if he makes a lease for years and at his full age says to the lessee, ‘‘ God give you joy of it,” it is thereby af- firmed. 4 Leon.4; Bing. on Inf. * 66. Baylis v. Dineley, 3 M. & S. 477, was an action of debt on a bond in the penal sum of 100J. conditioned for the payment of 50/. with interest, &c., to which J. Dineley, one of the defend- ants, pleaded infancy. Replication, that J. D. after the making of said writing obligatory, &c., assented to and ratified and confirmed the said writing obligatory. Demurrer, assign- ing for cause, that it is not alleged in the replication that J. D., after he at- tained his age of twenty-one, resealed the said writing obligatory, or redeliv- ered the same as his act and deed, and that it is not set forth in the replication in what manner or by what means J. D. is supposed to have ratified and confirmed the said writing obligatory, and also that the plaintiff hath not made profit of any deed or writing whereby the said writing obligatory is supposed to have been ratified and con- firmed, &c. Lord ELLenporoveu, C. J., in ap- proving the rule in Keane v. Boycott (ante, p 17), says: ‘‘Is there any authority to show that if upon look- ing to the instrument the Court can clearly pronounce that it is to the infant’s prejudice, they will neverthe- less suffer it to be set up by matter ex post facto after full age?” .. . In Zouch v. Parsons, where this subject was much considered, I find nothing which tends to show that an infant may bind himself to his prejudice. It is the privilege of the infant that he shall not, and we should be breaking INFANCY. down the protection which the law has cast around him, if we were to give effect to a confirmation by parol of a deed like this made by him during in- fancy. Unless there be something amounting to an estoppel in law of as high authority as the deed itself, we cannot surrender the interest of the in- fant into such hands as he may chance to get. It appears to me that we should be doing so in this case unless we required the act after full age to be of as great solemnity as the original instrument. Per curiam: Judgment for the defendant.” The principal ground of the decision in this case seems to have been that the instrument appearing to the Court to be to the prejudice of the infant was void within the rule in Keane v. Boy- cott; and, if void, it was of course in- capable of any confirmation; and the infant could only bind himself by a new obligation, which, while perhaps bind- ing bim according to its terms, it would seem clear, could hot give validity to a preceding nullity, and could derive no efficacy .therefrom, since, if void, it could not even afford a consideration for a new promise. ‘ But, as it seems now to be settled that the bond of an infant is voidable only and not void (see ante, pp. 62, 142), it seems that the rule as to the degree of acts of confirmation of an infant’s bond required in Baylis v. Dineley is not the law, at least in the United States; and that, as hereafter stated, the question here also is one of intention, and that the rule requir- ing acts of confirmation to be of such asolemn and unequivocal nature as to establish a clear intention to confirm the deed after full knowledge that it was voidable, is sufliciently stringent. See Tucker v. Moreland (ante, p. 128), and cases there cited; Scott v. Bu- chanan, 11 Humph. 475; Hastings v. Dollarhide, 24 Cal. 212; Clamorgan v. Lane, 9 Mo. 472. Indeed, it seems that upon principle HUBBARD v. CUMMINGS. 161 the same rule would apply to a bond of 171); also, 1 Am. Lead. Cas. (4th ed.) an infant as to any other contract ex- 253; Stokes v. Brown, 4 Chand. (Wis.) ecutory on the part of the infant, as to 39; West». Penny, 16 Ala. 187; Little a promissory note given during infancy. v. Duncan, 9 Rich. Law, 59. See notes to Hale v. Gerrish (post, p. Houssarp v. CumMInes. (1 Maine, 11. Supreme Judicial Court of Maine, August Term, 1820.) Contracts of Infants must be rescinded in toto if at all. Confirmation. — A deed of conveyance of land in fee, and a mortgage of the same, made at the same time by the grantee to the grantor, are to be taken as parts of one and the same contract, and are confirmable or rescindable in toto only. If such grantee, being an infant, continue in possession of the land after his arrival at full age, this is an affirmance of the contract. So if, without actual possession, he bargain and sell the same land to a stranger. IN a case stated for the opinion of the Court, the parties agreed on the following facts: Jackson, the plaintiff's testator, being seised in fee of a certain lot of land, on the 9th day of August, 1815, conveyed it to one Dudley, by deed, with the usual cov- enants of warranty; and at the same time, as security for the purchase-money, took from Dudley a mortgage of the same land. ‘At the time of making these deeds Dudley was a minor. Afterwards, on the 10th day of October, 1816, Dudley, being of full age and remaining in possession of the land, for a valuable consideration conveyed it with warranty to Simeon Cummings and others; and they in like manner, conveyed it to the tenant, against whom Jackson’s executors brought this action to recover possession of the land as mortgaged to their testator. Greenleaf, for the demandants, cited Zouch v. Parsons, 3 Burr. 1794; Co. Lit. 26, 514; Worcester v. Eaton, 13 Mass. 874; Com. Dig. “ Enfant,” C. 6, 8; Holbrook v. Finney, 4 Mass. 566; 8 Co. 42; Badger v. Phinney, 15 Mass. 359. Fessenden, for the tenant, cited Keane v. Boycot, 2 H. Bl. 515 ; Taylor v. Croke, 4 Esp. 187; Willis v. Twambly, 13 Mass. 204; Boston Bank v. Chamberlain, 15 Mass. 220. MELLEN, C. J., delivered the opinion of the Court. It is agreed by the counsel on both sides that the deed of a minor is ll 162 INFANCY. not absolutely void, but only voidable at the election of the mi- nor after his arrival at full age. This principle of law is per- fectly plain, and no authorities need be cited in support of it. But it is contended by the counsel for the tenant that the minor, after his arrival at full age, did avoid the mortgage deed made by him during his minority; and that the conveyance made by him, with warranty to Cummings and others, was an open and explicit disavowal and disaffirmance of the mortgage, and passed the fee of the estate to his grantees. The counsel for the demandants, on the other hand, contends that the deed from Jackson to Dudley and the mortgage back to Jackson form but one contract; and thatthe continuance of Dudley’s possession of the premises, after he became of full age, amounted to an affirmance of the whole contract, on the principle that it must be affirmed or rescinded in toto; and that even the deed itself to Simeon Cummings and others may be considered as an affirmance of the first deed and mortgage. It is said that the promissory notes which were given for the purchase-money by the minor have not been paid nor put in suit; and that perhaps no objection will ever be made by Dudley to the payment, on account of his infancy at the time of signing them. Still, the defence made in this action, aud the facts on which the tenant relies, show at once on which side of the case the justice of it is to be found. The principal question is, do the deed from Jackson to Dudley, and the mortgage to Jackson, inthe circumstances under which they were executed, constitute one contract? If, in legal contempla- tion, they cannot be considered as distinct and independent contracts, but as only one contract, the application of a few acknowledged principles will lead to an easy and satisfactory decision. The common learning with respect to a mortgage may serve to illustrate the subject. It is well known to be wholly immaterial whether the condition annexed to such a conveyance be contained in the deed of conveyance, or in another instrument under seal, and executed at the same time, as adefeasance. Both deeds form but one contract. If A. convey lands to B. in fee, to the use of C., the wife of B. shall not be endowed of these lands; for the seisin of B. is only instantaneous. Co. Lit. 81 6; 2 Co. 77a. The seisin for an instant is where the husband, by the same act or same conveyance by which he acquires the fee, parts with it. This principle is recognized in the case of Holbrook v. HUBBARD v, CUMMINGS. 163 Finney, 4 Mass. 566, and in the cases there cited; and that case goes the length of establishing the doctrine contended for by the demandants’ counsel, as to the construction to be given to a deed | and mortgage back to the grantor, executed at the same time. In that case the Court say: ‘*‘ The mortgage back to the father, from the terms of it, is of the same date with the conveyance from him. They are therefore to be considered as parts of the same contract.” And again: “ The two instruments must be con- sidered as parts of one and the same contract, between the parties, in the same manner as a deed of defeasance forms, with the deed to be defeated, but one contract, although engrossed on several sheets.” We are satisfied with this decision and the reasons on which it.is founded. In the case under consideration, the legal operation of the deed to and mortgage from Dudley, was to con- vey an equity of redemption in the premises, and nothing more. Suppose a deed had been made by Jackson to Dudley, on con- dition to be void if Dudley should not, on 4 certain day, pay him a certain sum. In both cases he might acquire the absolute estate, by payment of the money according to the terms of the condition. It was at the option of Dudley to confirm or rescind the bar- gain, on his arrival at full age; but he could not confirm it in part, and rescind it in part. Kimball v. Cunningham, 4 Mass. 502. This would be giving to the minor, not only the privilege of pro- tecting himself, but the power of injuring others, without any legal accountability. We apprehend the law is not liable to this imputation. A minor is sufficiently protected from imposition and danger, if he may, on arriving at full age, rescind his con- tracts, and restore to his rights the person with whom he has contracted. The case of Badger v. Phinney, cited by the counsel for the demandants, is full to this point. It is impossible not to perceive the sound sense as well as sound principles of that decision, and to feel its force when applied to the case before us. In that case the goods had been sold to a minor, who was supposed to be of full age at the time he gave his promissory notes for the value, and avoided them by the plea of infancy. The Court allowed the vendor to reclaim and hold the goods; and they went even further ; they said that as to the goods which the minor had sold, and for which he had received payment, he could never have 164 INFANCY. reclaimed them, though he had disaffirmed the contract at full age, without restoring the price of the goods to the purchaser. In other words, the contract must be rescinded in toto. If affirmed in part, it is affirmed in the whole. The only question remaining, is, whether Dudley, after he became of full age, did affirm the contract made with the testator. We have seen that he continued in possession of the lands until he sold to Cum- mings, which was some time after his arrival at full age; and that he claimed to hold the lands by virtue of Jackson’s deed, ‘inasmuch as he undertook to sell and convey them with war- ranty. If an infant make an agreement, and receive interest up- on it after he is of full age, he confirms the agreement. 1 Vern. 132. Or if he make an exchange of land, and after he is of full age continues in possession of the land received in exchange. 2 Vern. 225. So, if he purchase lands while under age, and con- tinues in possession after his arrival at full age, it is an aflirmance of the contract. Co. Lit. 8a, 3; Com. Dig. “ Enfant,” C. 6;. ‘2 Bulstr. 69; 2 Vent. 203; 8 Burr. 1710. On this point the authorities seem clear and decisive ; the law is plain as the fact. The case of Boston Bank v. Chamberlain, which was cited by the counsel for the tenant, is not similar to the case now before us. In the case cited, both parties claimed under deeds from the same person; one deed being made during his minority, and the other after his arrival at full age. But it does not appear how or from whom the minor obtained his title ; there was no question as to instantaneous seisin; nor the construction of two instru- ments as forming one contract only. Upon a full consideration of the case, we are allof opinion that the action is maintainable upon principles of law well established, and such as will protect an honest man from injury, as well as relieve a minor from the consequences of his indiscretion or incapacity in making con- tracts. This decision will do justice to the heirs or creditors of Jackson, and leave the tenant to seek his indemnity upon the covenants in the deed of Dudley, or his own immediate grantors. Let judgment be entered for the demandants as on mortgage. That a contract, if disaffirmed by But this must be understood with the infant, must be disaffirmed in toto, the limitation that the contract is an is well settled; and it is equally true entire one; but, where the contract may that if he confirms, he must confirm in be severed, it seems that a confirma- toto. See notes to Price ». Furman tion by parol promise or by acts may be (ante, p. 124). of part, or be conditional only, and HUBBARD ¥. CUMMINGS. in such case the party. will be liable only to the extent of such confirmation. See Aldrich v. Grimes, 10 N. H. 197; Minock v. Shortridge, 21 Mich. 318, where though the promissory note given by a firm of which one member was an infant, for articles purchased before the infant reached majority, was held not ratified by the infant after majority; yet the firm having, after he reached his majority, sold the portion of such goods then remaining, the in- fant was held liable under the common counts to pay the value of said goods so sold after reaching his majority, not exceeding the contract price. That a conveyance of land or chat- tels and a mortgage back of the same to secure unpaid purchase-money, are in law one entire transaction, and, if avoided by the infant, must be avoided ‘in toto, sec Heath v. West, 28 N. H. 108; Roberts v. Wiggin, 1 N. H. 73; Bigelow v. Kenney, 3 Vt. 353; Rich- ardson v. Boright, 9 Vt. 371; Weed v. Beebe, 21 Vt. 495; Robbins v. Eaton, 10 N. H. 561; Ottman v. Moak, 3 Sandf. Ch. 431; Young v. McKee, 13 Mich. 556; Cogley v. Cushman, 16 Minn. 402; Skinner v. Maxwell, 66 N. C. 45; Lynde v. Budd, 2 Paige, Ch. 191. See also notes to Price v. Fur- man (ante, p. 124). As a purchase of a chattel by an in- fant may be confirmed by any distinct act of ownership exercised over it after reaching majority (as stated in the pre- ceding case), so in like manner it is well settled that an infant, by remaining in possession for an unreasonable time after reaching majority, and enjoying the use of land sold or demised to him, or by selling and conveying as his own, after reaching majority, the land sold to him, may confirm the deed or lease to himself, and render himself liable on the mortgage for the purchase-money, or for the rent of the demised premises. So a reception of rent after reach- ing majority confirms the lease. See Hubbard v. Cummings, 1° Me. 14 165 (supra) ; Baker v. Kennett, 54 Mo. 90; Dana v. Coombs, 6 Me. 89; Boody »v. McKenney, 23 Me. 524; Robbins », Eaton, 10 N. H. 561; Baxter v. Bush, 29 Vt. 465; Lynde v. Budd, 2 Paige, Ch. 191; Williams v. Mabee, 3 Halst. Ch. 500; Barnaby v. Barnaby, 1 Pick. 221; Phillips ». Green, 5 Mon. 354; Tyler on Inf. & Cov. § 43; Bing. on Inf. 65, 66; Com. Dig. ‘* Enfant,” C. 6; Henry v. Root, 33 N. Y. 526, where the authorities, English and American, are fully collected and con- sidered; Kane Co. v. Herrington, 50 Ill. 239. But where work is done or materials furnished under a contract made with a minor for the improvement of his real property, such contract is not binding, and the contractor can claim no lien therefor against the property; and in such case the receipt of rents by the minor after he becomes of age, from the property so improved, does not amount to a ratification so as to im- pose a lien upon his property. Rati- fication is a question of intention, inferrible only from his free and volun- tary acts or words; and it would be unreasonable to compel a minor to choose between the utter abandonment of his property and the creation of a lien upon it under a contract made dur- ing his minority, and to say if he retains the property he ratifies the lien. McCarty v. Carter, 49 Ill. 53. And where an infant buys land sub- ject to a mortgage thereon, which in and by the deed she covenants to pay as a part of the consideration of the conveyance, and subsequently, but before she comes of age, she conveys the land to another (for a larger price), and retains and enjoys the proceeds of such sale for several years after she at- tains her majority; held, nevertheless, that she is not liable on her covenant to pay the mortgage. Walsh v. Powers, 43 N. Y. 23. See also Dana v. Stearns, 3 Cush. 372 (cited in note to Lawson v. Lovejoy, post, p. 169). 166 INFANCY. Lawson v. LOVEJOY. (8 Maine, 405. Supreme Judicial Court of Maine, May Term, 1832.) Executory Contracts of Infants, how ratified. — The voidable contract of an infant may be ratified, after he comes of age, by his positive acts in favor of the con- tract, or by his tacit assent under circumstances not to excuse his silence. Therefore, where an infant purchased a yoke of oxen, for which he gave his negotiable promissory note, and, after coming of age, he converted them to his own use and received their avails, it was held that this was a ratification of the promise, and that the indorsee of the note was entitled to recover. Assumpsit by the indorsee against the maker of a promissory note. The defence was infancy; and the case was submitted to the determination of the Court upon the following facts: The note was given for the price of a yoke of oxen, sold by the payee to the maker, who at that time was an infant; but after his arrival at full age, which was after the maturity of the note, he “ converted the oxen to his own use, and-received the avails of the same.” D. Williams, for the plaintiff, cited 8 Maule & Selw. 481; 1 Pick. 124; 1 Vern. 182. Boutelle, for the defendant, cited 16 Mass. 460; 1 Pick. 2038, 223. Parris, J., delivered the opinion of the Court. It seems to be a well-settled principle that such contracts of an infant as the Court can pronounce to be to his prejudice are void ; such as are of an uncertain nature as to benefit or prejudice are voidable, and may be confirmed or avoided at his election ; and such as are for his benefit, as for necessaries, instruction, and the like, are valid.? The law so far protects him, in the second class of contracts, as to afford him an opportunity, when arrived at full age, to con- sider his bargain, its probable tendency and effect; to review the circumstances under which it was made; and, having weighed its advantages and disadvantages, to ratify or avoid it. If it be rati- fied, the original contract becomes binding, and may be enforced. The ratification gives life and validity to the old promise; and, if the contract be enforced at law, it will be by an action on the original agreement, and not on the ratification. But a ratifica- tion must, on the one hand, be something more than a mere acknowledgment of the debt, while, on the other, it need not be a direct promise to pay or perform. A direct promise is, indeed, 1 See, however, this subject considered, ante, p. 30 et seq. LAWSON v. LOVEJOY. 167 evidence of a ratification, but not the only evidence. The con- tract of an infant may be rendered as valid, when he arrives at full age, by his mere acts, as by the most direct and unequivocal promise. His confirmation of the act or deed of his infancy may be justly inferred against him, after he has been of age for a rea- sonable time, either from his positive acts in favor of the con- tract, or from his tacit assent under circumstances not to excuse his silence. It was even said by Chief Justice Dauuas, in Holmes v. Blogg, 8 Taunt. 35, that in every instance of a contract void- able only, by an infant on coming of age, the infant is bound to give notice of disaffirmance of such contract, in reasonable time. Although this doctrine may not have been fully recognized to its utmost extent, yet such circumstances as show that the infant either received a benefit from the contract after he arrived at full age, or did something from which assent might be presumed, have frequently been adjudged sufficient evidence of a ratifica- tion. Such as the silence of the infant after his arrival at full age, coupled with his retaining possession of the consideration, or availing himself in any manner of his conveyance. Hubbard v. Cummings, 1 Greenl. 11; Dana v. Coombs, 6 'Greenl. 89. So if an infant lease land, and after he come of age receive rent; this is equivalent to an express promise that the lease shall stand, and the infant is bound by it. Ashfield v. Ashfield, Sir W. Jonzs, 157; Litt. sect. 258. So if an infant take a lease for years, ren- dering rent, which is in arrear for several years when he comes of age, and he thereafter continues in possession. This makes the lease good, and him chargeable with all the arrears which accrued during his minority; for though, at full age, he might have disaffirmed the lease, and thereby have avoided payment of the arrears, yet his continuance in possession after his full age ratifies and affirms the contract ad initio. Com. Dig. “‘ Enfant,” C. 6; Evelyn v. Chichester, 8 Burr. 1717. So receiving interest on a contract. Franklin v. Thornebury, 1 Vern. 182. The oc- cupancy of lands taken in exchange for other land. Cecil ». Salisbury, 2 Vern. 225. And any other act indicating an inten- tion to affirm. Kline v. Beebe, 6 Conn. 494. The law wisely pro- tects youth from the impositions of those who might be disposed to take advantage of their inexperience, and compels them to the performance of no engagements or the payment of no debts con- tracted within age, such as are for necessaries suited to their 168 INFANCY. condition in life. But while it affords this protection as a shield, it will not sanction its use as an offensive weapon of injustice, by which the unsuspecting and honest community are to be de- frauded of their property. The privilege is afforded for no such purpose. The law requires of the infant the strict performance of his engagement, if, subsequent to his arrival at age, it has been ratified and confirmed, either by a new promise, or by any act by which an acquiescence is implied. But if there have been no such ratification, and he repudiate the contract, common hon- esty will not, and legal principles ought not, to permit him to retain the’ consideration which was the foundation of the prom- ise he thus avoids. He should place himself and the person with whom he contracted in the same situation as if no con- tract had been made. Surely he ought not to be permitted to keep all and pay nothing. But in this case we are not called upon to decide whether the law would afford any remedy for one who had sold his chattels to an infant, by whom they had been converted into cash during infancy, there having been no subse- quent confirmation of the contract. If the principles which have been recognized by this Court in Hubbard ». Cummings and Dana v. Coombs stand unshaken, as we think they do, and can be applied to contracts for personal as well as real property, as we think they may, the contract, which is the foundation of this action, was fully ratified by the acts of the defendant after he arrived at full age. According to the agreement of the par- ties, the defendant must be defaulted. The first proposition in this case, as to the distinction between contracts void and voidable, is considered, ante, p. 30, in notes to Keane v. Boycott. As to the point decided, it seems well settled that a purchase of a chat- tel is confirmed by any distinct and un- equivocal act of ownership exercised by the infant over lit after arriving at majority ; as by selling or converting it to his own use, as in the principal case, or by otherwise disposing of it, or by keeping and enjoying the use of the chattel as his own for an unreasonable time; and in such case he will be liable on his promissory note given therefor, or for the price thereof when no security is given, or will be bound by his contract of which it is the con- sideration. Boody v. McKenney, 23 Me. 525; Cheshire ». Barrett, 4 Mc- Cord, 241; Deason v. Boyd, 1 Dana, 45; Boyden v. Boyden, 9 Met. 519; Alexander v. Heriot, 1 Bail. Eq. 223; Ewbanks v. Peak, 2 Bail. 497; Aldrich v. Grimes, 10 N. H. 194; Stern v. Freeman, 4 Met. (Ky.) 809; Shrop- shire v. Burns, 46 Ala. 108; Corey v. Burton, Supr. Ct. Mich., April Term, 1875. See also Minock v. Shortridge, 21 Mich. 818; Norris v. Wait, 2 Rich. (S. C.) 152; Keegan v. Cox, 116 Mass. 289; 1 Pars. on Cont. 325; and notes to Hubbard v, Cummings (ante, p. 165). LAWSON wv. LOVEJOY. But see Counts v.iBates, Harper, 464, where it was held that the sale by the administrator of an infant of a horse purchased by an infant, and for which he had given his promissory notes, was no confirmation of the purchase so as to render the administrator liable on the notes of his intestate, on the ground that, ‘‘ when one sells to an infant any article of property, and takes a note for the payment of the money, the prop- erty delivered is to be considered a gift to the infant,”—a doctrine which seems, to say the very least, very questionable. See Reeve’s Dom. Rel. 244, and notes to Price v. Furman, p. 123 et seq. This case seems directly overruled by Shropshire ». Burns (supra), — the facts in which were almost identical with Counts v. Bates, —and is probably no longer law. So where an infant submitted a claim for services to arbitration, and an award was made in his favor and paid to his guardian, his receiving the money from his guardian on reaching majority was an affirmance of the submission, and a bar to the subsequent assertion of the claim. Jones v. Phoenix Bank, 4 Seld. 228. But the mere retention of the con- sideration for the assignment of a land contract (such assignment having been executed during minority), and the ac- quiescence of the minor for a few months after arriving at majority, were, in Carrell v. Potter, 23 Mich. 379, held not to be a confirmation of the assign- ment, especially where it was probable from the evidence that the minor had been out of the State nearly the whole time after arriving at majority. In order to constitute a ratification, it must be a voluntary act which mani- fests his intention to keep the property, when he has the power to keep or re- linquish it at his election. If he had not such actual possession and control of the goods, or made no sale or dispo- sition of them after he came of age, and before action brought, then the non-return of the goods is not evidence 169 of a new promise and ratification. See Smith v. Kelley, 13 Met. 310; also, notes to Price v. Furman, ante, p. 128. Indeed, the quest on seems to be entirely one of intention; and where it does not appéar that the infant after reaching majority, or the one represent- ing her, as her husband, when using the consideration, knew that it was the identical consideration received for the execution of the contract during minor- ity, and intended when using it to ratify the contract, the act of using the money, it is said, does not per se amount to a determination of the elec- tion. Shaw v. Boyd, 58. & R. 318; note to Dublin & Wicklow Railway Co. v. Black, 16 Eng. L. & Eq. 558 (given in full in notes to Hale v. Ger- rish, post, p. 174). And where he retains possession of a portion of the goods not sold (the remainder having been sold during minority) till after majority, as servant of a bond fide assignee, this is not a ratification so as to render him liable upon his note therefor. Thing v. Lib- bey, 16 Me. 55. And where he has sold the goods on the dissolution of the firm of which he was a member, before arriving at ma- jority, to another person, his partner, and has received payment partly in money and partly in a note executed by such partner, by retaining and in- stituting proceedings to collect the note, he does not ratify the partnership and thereby render himself liable to pay the original promissory note given by himself and partner for the goods; but he seems thereby to have ratified the dissolution of the partnership, if any thing. Dana v. Stearns, 3 Cush. 372; see also Walsh v. Powers, 43 N. Y. 23 (cited in note to Hubbard v.Cummings, ante, p. 163). But it seems that where the infant does confirm the partnership after ma- jority, as by transacting the business of the firm, receiving their moneys, and paying their debts which, unexplained, are held to amount to a confirmation of 170 the partnership, he is held liable for all the liabilities of the firm incurred dur- ing his minority, even though he was ignorant of the existence of the par- ticular debt in question at the time of such confirmation, and Shad, on being informed of it, refused to pay it. Mil- ler v. Sims, 2 Hill (S. C.), 479. This case may be distinguished from Dana v. Stearns in this, that in the former the dissolution of the partnership, instead of its continuance, seems to have been confirmed by the infant after reaching majority. But in Crabtree v. May, 1 B. Monr. 289 (a case decided without argument of the question or citation of authority by the Court), it was held that a plea of infancy by one member of a firm to an action on a note in the name of the firm was not avoided by a repli- cation that the defendant had continued a partner of the firm for upwards of a year after his majority, and had not in that time, nor for years thereafter (until sued as a partner), indicated a disposi- tion to disaffirm any note executed in the name and in the business of the firm, without an averment that he had knowledge of the note declared on, and was looked to for payment. And again, in Minock v. Shortridge, 21 Mich. 304, where the facts were very similar to those in Miller v. Sims, it was held that the circumstances of continuing in the firm business, &c., recognizing the firm, paying firm debts, and receiving his share of the profits and the proceeds of the sale of the balance of the stock on dissolution, after majority, should be considered, in connection with the fact that, subse- quent to the conversion of the goods and the dissolution of the firm, the in- INFANCY. fant took the position that his partner ought to pay more than half the amount of the notes given for the goods, and in substance declined to be bound by the original agreement evidenced by the notes; and it was held that the first- named circumstances could not out- weigh the evidence of his dissent fur- nished by his express refusal; that an intent to ratify the notes was not infer- rible from the recognition of the part- nership, continuance in business, &c. On principle, it would seem that if the partnership is confirmed at all, it must be confirmed as an entirety e¢ cum onere; and that the infant should not be allowed, after reaching majority, with a full knowledge of the facts and a presumptive knowledge of his rights and the liabilities incident to a partner- ship, and the facts necessary to estab- lish his exemption from legal liability (Taft v. Sergeant, 18 Barb. 320), to avail himself of the benefits of the previous firm business and assets, with- out also incurring the liability legally incident to such partnership. See notes to Price v. Furman. In Goode v. Harrison, 5 B. & Ald. 147, where an infant held himself out as in partnership with I. S., and con- tinued to act as such till within a short period of his coming of age, but there was no proof of his doing any act as partner after twenty-one, it was held that it was his duty to notify his disaffirmance of the partnership on arriving at twenty- one; and, as he had neglected so to do, that he was responsible to persons who had trusted I. S. with goods subse- quently to the infant’s attaining twenty- one, on the credit of the partnership. HALE v. GERRISH. 171 HALe v. GERRISH. (8 N. H. 874. Superior Court of Judicature of New Hampshire, December Term, 1836.) Ratification af Executory Contract. — Where infancy is pleaded, a new promise, made after the suit is commenced, is not sufficient to sustain a pending action. To sustain an action against a person of full age, on a promise made by him when an infant, there must be an express ratification, either by a new promise to pay, or by positive acts of the individual, after he has been of age a rea- sonable time, in favor of his contract, which are of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. When the defendant, after he became of age, admitted that he owed the debt, and said that ‘‘ the plaintiff would get his pay,” but refused to give a note, lest he might be arrested, held, that such declaration was no ratification of the original promise. ASSUMPSIT upon an account annexed to the plaintiff's writ. Plea, infancy. Replication, that the defendant, after he be- came of full age, assented to, ratified, and confirmed the several promises mentioned in the declaration, with a traverse and issue on this fact. The case was submitted to the Court on the evi- dence contained in the depositions of Enoch H. Nutter and John Brewster; and it was agreed that if the said depositions furnished evidence competent to be submitted to a jury, and sufficient in law to justify them in returning a verdict for the plaintiff, judgment was to be rendered for the plaintiff for the amount of his demand; otherwise for the defendant. The said Nutter testified that he bailed the defendant on the plaintiff's writ, and that since that time he had heard the defendant say that he owed the debt to the plaintiff, and was willing to pay him as much as he paid his other creditors, if the plaintiff would settle with him, and do what was right; at the same time, he said he was a minor when the debt was contracted. He also said he would pay the plaintiff fifty per cent. of the debt, if he would pay the cost, rather than have the action goto Court. Said Brewster testified that for several years he had been employed as a clerk in the store of the plaintiff, in Dover; that, on the 11th day of June, 1834, the defendant was passing the store, and was called in for the purpose of settling an account which the plain- tiff had against him. The plaintiff directed the witness to make out the account, which he did. The plaintiff then requested the 172 INFANCY. defendant to give his note for the amount of the account; but he refused. The plaintiff then asked him why he would not; and the defendant answered, because it would render him liable to be arrested. The plaintiff asked the defendant if he owed the debt. He replied, “Yes I owe the debt, and you will get your pay; and I suppose that is all you want.” The plaintiff said, “Yes; but I want the account settled, as it is upon an old book.” The defendant said he should not give a note, on any consideration. He farther said that he had made arrangements to pay all his small debts; and should do it before he went to New York. Bartlett, for the plaintiff. Rowe, for the defendant. Uruam, J. It has been settled, in the case of Merriam v. Wilkins,'6 N. H. 482, that, where infancy is pleaded, a new promise, made after the commencement of a suit, is not sufficient to sustain a pending action. There must be a subsisting right of action at the time of suing out the plaintiff’s writ, which right of action no subsequent promise can give. The testimony, therefore, of Enoch H. Nutter is insufficient to show a new promise that can avail the plaintiff in this suit. The declarations to Nutter were all subsequent to the commencement of this action and to the arrest of the defendant, for whom Nutter became bail. Thrupp v. Fielder, 2 Esp. 628; Ford v. Phillips, 1 Pick. 203; Thornton v. Illingworth, 2 B. & C. 824. The whole case, then, rests upon the testimony of John Brewster, the remaining witness. He testifies that the plaintiff called the defendant into his store, and asked him to give his note for the amount of the account,— which the defendant refused to do, saying it would render him liable to be arrested. The plaintiff asked the defendant “ if he did not owe the debt.” The defend- ant replied “that he did, and that the plaintiff would get his pay,” and added, ‘“‘I suppose this is all you want.” He farther said that he had made arrangements to pay all his small debts before he went to New York. The rule in this case is different from that where the statute of limitations is pleaded. An ac- knowledgment of a subsisting debt, where a claim has been barred by the statute of limitations, furnishes evidence, unless ex- plained or qualified, from which a new promise may be implied; HALE v. GERRISH. 173 but the promise of an infant cannot be revived so as to sustain an action, unless there be an express confirmation or ratification after he comes of age. This ratification must either be a direct promise — as by saying, “I ratify and confirm,” or, “I agree to pay the debt” — or by positive acts of the infant, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Thompson ». Lay, 4 Pick. 48; Lawson v. Lovejoy, 8 Green. 405; Ford ». Phillips, 1 Pick. 202; Smith v. Mayo, 9 Mass. 62; Roberts v. Wiggin, 1 N. H. 73; Whitney v. Dutch, 14 Mass. 457 ; Goodsell v. Myers, 8 Wend. 479; Hubbard »v. Cummings, 1 Green. 11; Dana v. Coombs, 6 Green. 89; Thrupp »v. Fielder, 2 Esp. 628; Hitch- cock v. Tyson, Id. 482. In 1 Pick. 202, the declaration of the de- fendant after he had become of age was, ‘that he owed the plaintiff, but was unable to pay him; he would endeavor, how- ever, to get his brother to be bound with him.” It was holden, that this did not amount to a renewal of the promise. The declaration, in this case, that the defendant “owed the debt, and that the plain- tiff would get his pay,” seems to go no farther. Were this the whole declaration, it would probably not constitute such a rati- fication of the original contract as to bind the defendant; but this declaration was at the time accompanied by an avowed design on his part to make no promise or acknowledgment that would render him liable to be arrested, or that would enable the plaintiff to enforce the claim. Such being the case, it seems perfectly clear that there was no such ratification or new promise as would ren- der the defendant liable. There seems to be a clear distinc- tion between contracts executed and executory as to what will operate as a confirmation, much less being required in the former case than in the latter. So ‘‘ a voidable purchase of property by an infant may be confirmed by acts which might not confirm a sale by him, and a sale might be confirmed by acts which would not confirm a promise.” See Middleton v. Hoge, 5 Bush (Ky.), Judgment for the defendant. 478, where the authorities are well col- lected and the subject well exemplified ; Carrell v. Potter, 23 Mich. 897; also, 1 Story on Cont. (4th ed.) § 69; 1 Pars. on Cont. 325; notes to Hubbard v. Cummings; Lawson v. Lovejoy (ante). In order to confirm an executed con- tract, all that seems to be necessary is any distinct acknowledgment or act indi- cating an intention to be bound by the contract.! ‘‘ Indeed, wherever he con- 1 Some of the cases seem to lay down the rule that a neglect to disaffirm within a reasonable time is without more a ratification. This subject is well considered in the 174 INFANCY. tinues, after coming of full age, to oc- upon the supposition that he intends to cupy a position which is only explicable stand by his contract, it will be con- note to Dublin & Wicklow Railway Co. v. Black, 16 Eng. L. & Eq. 556-558 (s. c. 8 Exch. 181), which is deemed of sufficient importance to be presented in full. See also notes to Stafford v. Roof (ante, p. 96). “ This case (Dublin & Wicklow Railway Co. v. Black, 16 Eng. L. & Eq. 556, 8 Exch. 181) proceeds upon the ground that it was the duty of the infant to positively repudiate and disaffirm his subscription after attaining majority, or he would be bound by it. It has sometimes been said, that, in every instance of a contract voidable only by an infant on coming of age, the infant is bound to give notice of disaffirmance of such contract in a reasonable time, or he will be bound. Dictum of Datuas, J., in Holmes v. Blogg, 8 Taunt. 39 (1817); of Rep- FIELD, J., in Richardson v. Boright, 9 Vt. 868 (1837); of Hosmer, C. J., in Kline v. Beebe, 6 Conn. 506, followed in Scott v. Buchanan, 11 Humph. 474 (1850), and the recent English cases of The London, &c., Railway Co. v. McMichael, 5 Exch. 114; The Leeds & Thirsk. Railway Co. v. Fearnley, 4 Exch. 26; and The Cork, &c., Railway Co. v. Cazenove, 10 Q. B. 985; The Midland & Great Western R. Co. v. Quin, in the Queen’s Bench of Ireland, May 11, 1851, tend to sanction this posi- tion, although they do not decide it. It may be doubted whether the current of authorities in America, at the present time, will warrant the abstract position, that a bare neglect to disaffirm is itself a ratification, unless accompanied with some positive acts indicative of an intention to abide by the contract. Silence for an unreasonable time, taken in connection with other facts, —such as using the property purchased, retaining possession of it, selling or mortgaging it, or in any way convert- ing it to the infant purchaser’s own use, — would undoubtedly be a sufficient ratifica- tion. The American decisions are numerous and clear upon this point. Thus, in Lawson v. Lovejoy, 8 Greenl. (Bennett’s ed.) 405, a minor bought a yoke of oxen, for which he gave his note; after arriving at full age, he “converted the oxen to his own use, and received the avails.” This was held a binding ratification, and the infant was adjudged liable on his note. So in Boyden v. Boyden, 9 Met. 519 (1845), a minor, having given his note for a horse and plough, kept the horse a year after attaining full age, and then sold him. The plough he kept and used two or three years, without giving any notice of a desire to disaffirm the contract. The jury were told this operated as aratification. In like manner, in Cheshire v. Barrett, 4 McCord, 241 (1827), an infant having given his note for a horse, which he sold after arriving at full age, was held thereby to have ratified the contract. Deason v. Boyd, 1 Dana, 45 (1833), is precisely similar. See also Alexander v. Heriot, 1 Bailey, Eq. 223. Boody v. McKenney, 23 Me. 517 (1844), is one of the most recent cases to the same point. The case of Delano v. Blake, 11 Wend. 85 (1888), is one of the strongest American cases in support of the position that the infant must positively disaffirm within a reasonable time, or he will be bound. There an infant received the note of a third persen, not the debtor, in payment for work and labor. This note he kept for eight months after the arrival at maturity, when, the maker becoming insolvent, the infant tendered the note to the original debtor, and sued him on account for his ser- vices. It was held that simply retaining the note so long a time was, under all the circumstances, a ratification. See also Thomasson v. Boyd, 18 Ala. 419 (1848). In Aldrich v. Grimes, an infant purchased property with a privilege of return, if it did not answer. After he became of age, the vendor requested him to return it, if he did not-intend to keep it. The infant said, “he could not return it then, and did not know as he should; he did not know but he should keep it.” He did keep and use it for two or three months, when he offered to return it; but the adult declined to receive it, and sued him for the price. The infant was held liable on his note for paaad HALE v. GERRISH. 175 sidered as a ratification of an executed ed.) §§ 69, 72; Tyler on Inf. & Cov. contract.” See 1 Story on Cont. (4th §§ 40, 41, et seq.; also, Norris v. the price. All these cases proceed upon the ground of intention. There must exist an intention to abide by the contract ; and a close examination of those cases where the infant has been held not to have ratified the purchase, will show that a mere neglect to give notice that he repudiates the contract has not been considered, per se, a ratification. Thus, in Smith v. Kelley, 13 Met. 809, an infant bought goods, and, three days before he came of age, the sellers attached them on a writ against him, for their price. ‘The officer took the goods into his own custody, and held them under the attachment until the time of trial. The infant, however, never gave any notice of his intention to repudiate the contract ;* but it was held that there was not here sufficient evidence of a ratification; the defendant not having the actual possession and custody of the goods, he was not bound to disaffirm the purchase. So in Thing v. Libbey, 16 Me. 55 (1889), an infant, having purchased property, assigned it during his minority, bond fide, to secure a debt due a third person. The infant remained in possession of the goods some time after he became of age, but as agent for the assignee. He never gave any notice of an intention to disaffirm the contract, but, being sued for the goods, was held not to have ratified the purchase. The case of Dana v. Stearns, 3 Cush. 872 (1849), bears also upon this point. There B.,a minor, and S., a person of full age, entered into a partnership, to the capital stock of which B. contributed about $900, and which was dissolved by mutual consent before B. came of age. On the dissolution, it was ascertained that the firm had made about $300, and B. sold and conveyed to S. all his interest in the partnership property, for which he received the note of S. for $1,100, secured by a mortgage of personal property, and S. at the same time gave B. an obligation to pay the debts of the firm. After coming of age, B. proved his note against the estate of S., who had taken the benefit of the insolvent law, and also instituted proceedings with a view to enforce his claim under the mortgage. It was held, that by these proceedings B. had not ratified the partnership, and had not made himself’ liable for the partnership debts. The true rule on this subject seems to have been laid down in Hale v. Gerrish, 8 N. H. 874 (1836), that the acts relied upon to constitute a ratification must be of a character to constitute as perfect evidence of a ratification as would an express and unequivocal promise to pay. In that case the infant not only did not disaffirm after arriving at full age, but, when called upon to pay, said he owed the debt, and that the plaintiff would get his pay ; but refused to give his note, as he would be liable to be arrested. This was considered no ratification. So in Ford v. Phillips, 1 Pick. 202 (1822), the infant not only did not give any notice of a disaffirmance, but said, after his majority, that he owed the plaintiff, and would try to get his brother to be bound for it. The contract was held not to be ratified. Goodsell v. Myers, 8 Wend. 479 (18380), is to the same effect. There an infant purchased a horse during minority, and gave his note. A year after he became of age, he said to a third person, he owed the debt, and was going to pay it. He never gave any notice of an intention to disaffirm. Held, he was not bound. Thompson v. Lay, 4 Pick. 48 (1826), is clear to the point of the necessity of an express ratification. Hoyt v. Underhill, 9 N. H. 486; Wilcox v. Roath, 12 Conn. 550; Smith ». Mayo, 9 Mass. 62, and many other authorities to the same effect exist. Benham v. Bishop, 9 Conn. 380 (1832), bears strongly upon this point. There an infant purchased real estate during infancy, for which he gave his note. He remained in possession some time after he became of age, and then submitted the question to arbitration, whether he was bound to pay the note. Neither of these facts was considered a ratification, although the infant gave no notice of repudiation. Daceer, J., pertinently said, in giving judgment, “ An infant buys a horse, carriage, 176 Vance, 3 Rich. (S. C.) 168; note to Lawson v. Lovejoy (ante). Although the distinctions above men- tioned as to the existence of a difference in degree of the acts necessary to con- firm a purchase or sale by, or an ex- ecutory promise of, an infant, seem generally recognized, and the distinc- tion between the case of executed and executory contracts is quite clear (see rule stated below), yet, except as to the difference in implied confirmation of executed contracts, by remaining in possession of and enjoying or disposing of the thing purchased after reaching majority, which is held to amount to a confirmation, and which of course does not apply to a sale, where the infant INFANCY. has parted with the possession, there seems no well-defined rule as to the distinction in degree between the acts requisite to confirm a purchase or a sale by an infant; and the question as to what acts will or will not amount to a confirmation in both cases, would seem, as in other cases, one of intention on the part of the infant. As to the case of conveyances of real estate, see note to Tucker v. More- land (ante, p. 157). But it seems well settled that, in order to confirm a contract executory on the part of the infant (but not for necessaries), there must be not only an acknowledgment of liability, but also an express promise’ to perform (or or land, gives his promissory note for the price, and, upon coming of full age, does not return the property, nor offer to return it. To a suit on the note he pleads infancy, and a new promise is replied; will that evidence support the issue? ’’ The fact that part payment, even of a debt contracted during infancy, will not be a ratification, as has been often held (Thrupp v. Fielder, 2 Esp. 628; Hinely v. Margaritz, 3 Barr, 428 ; Robbins v. Eaton, 10 N. H. 561), would seem to show conclusively that, @ for- tiori, a bare non-disaffirmance would not have any such effect. On the review of the authorities, it would seem that the dictum of Datuas, J., above cited, is not sustained, either upon principle or authority, and that some act is necessary on an infant’s part, tending to show an intention to ratify, or he will not be bound.” See also Petty v. Roberts, 7 Bush (Ky.), 417; Emmons v. Murray, 16 N. H. 894. 1 Thrupp v. Fielder, 2 Esp. 628; Smith v. Mayo, 9 Mass. 62; Martin v. Mayo, 10 Mass. 187; Ford v. Phillips, 1 Pick. 202; Barnaby v. Barnaby, 1 Pick. 221; Thomp- son v. Lay, 4 Pick. 48; Jackson v. Mayo, 11 Mass. 147; Wilcox v. Roath, 12 Conn. 550; Benham »v. Bishop, 9 Conn. 380; Hale v. Gerrish, 8 N. H. 874; Hoyt v. Under- hill, 9 N. H. 486 (explaining Orvis v. Kimball, 8 N. H. $14), s. c. 10 N. H. 220; Tibbetts v. Gerrish, 25 N. H. 48; Aldrich v. Grimes, 10 N. H. 196; Edgerly v. Shaw, 25 N. H. 516; Hodges v. Hunt, 22 Barb. 150; 4 Barb. 175; Goodsell v. Myers, 3 ‘Wend. 479 ; Alexander v. Hutcheson, 2 Hawks. 585; Smith v. Kelley, 18 Met. 309; Armfield v. Tate, 7 Ired. 258; Dunlap v. Hales, 2 Jones’s Law, 881; Chambers, Ordinary v. Wherry, 1 Bail. 28; Bobo v. Hansell, 2 Bail. 114; Proctor v. Sears, 4 Allen, 95; Read v. Boshears, 4 Sneed. 118; Conklin v. Ogborn, 7 Ind. 553; Martin v. Byron, Dudley, 203; Petty v. Roberts, 7 Bush (Ky.), 416; N. H. M. F. Ins. Co. v. Noyes, 82 N. H. 348; Baker v. Kennett, 54 Mo. 92. See also Best v. Givens, 8 B. Monr. 72; 7 Ired. 258; 4 Chand. (Wisc.) 89; 21 Mich. 804; 4 Wend. 405; 19 Wend. 802; 16 Me. 55; 1 Pars. on Cont. (5th ed.) 328. In Harris v. Wall, 1 Exch. 180 (reported in full, post, p. 179), Rours, B., said: ‘“‘ Weare of opinion (apart from Lord Tenterden’s act) that any act or declaration which recognizes the existence of the promise as binding is a ratification to it, as, in the case of agency, any thing which rec- ognizes as binding an act done by an agent, or by a party who has acted as an agent, is an adoption of it. Any written instrument signed by the party, which in the case of adults would have amounted to the adoption of the act of a party acting as agent, will in the case of an infant who has attained his majority amount to a ratification.” See also Henry v. Root, 338 N. Y. 549, where this rule is approved. HALE v. GERRISH. positive acts of the infant, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute as perfect evidence of rat- ification as an express and unequivocal promise,)' made by the infant volunta- ‘rily and not under terror of an arrest,? to the plaintiff or to his agent,® after ar- riving at his majority, and before the commencement of the action.‘ Some of the cases and dicta lay down the rule, that this promise must be made with full knowledge on the part of the infant that he is not legally liable. See dicta in Harmer v. Killing, 5 Esp. 102; Curtin v. Patton, 118. & R. 305; Smith v. Mayo, 9 Mass. 62; 1 Pick. 203; 3 Rich. 168; 7 Bush (Ky.), 417; 16 Me. 57; Kay v. Smith, 21 Beav. 522; and Hinely v. Margaritz, 3 Penn. St. 428, where the point was directly decided, but without assigning any reasons therefor. See also 1 Pars. on Cont. 324. But in Taft v. Sergeant, 18 Barb. 320, it was held that, in the absence of any proof to the contrary, it will be presumed that, at the time of making the new promise, the infant was aware of his rights, and knew the facts neces- sary to establish his exemption from legal liability. And again, in Morse v. Wheeler, 4 Allen, 570, the point was raised, and, after full discussion, the dictum of Lord Alvanley in Harmer v. Killing 177 (supra), — which seems to be the only authority for the subsequent dicta to the same effect, — and the subsequent case of Hinely v. Margaritz, were dis- approved and overruled; and it was held that the ratification of a contract, as above stated, by an infant after reaching majority, is valid, though at the time of the ratification he did not know that he was not legally liable to pay the debt. See also Mete. on Cont. 59. But the rule would be otherwise in case of a mistake of fact material to his liability. Baker v.’ Kennett, 54 Mo. 92. ‘* But the terms of ratification need not be such as to import a direct prom- ise to pay. All that is necessary is, that he expressly agrees to ratify his contract; not by doubtful acts, such as payment of a part of the money due, or the interest, but by words, oral or in writing, which import a recognition and a confirmation of his promise.” Whitney v. Dutch, 14 Mass. 460 (re- ported in full, ante, p. 38); Henry v. Root, 33 N. Y. 541, where the author- ities are well collected. If the ratification is conditional, the party setting up the ratification must show that the condition has been ful- filled. As, if the promise was to pay when able, or as fast as able, there must be proof of ability. See Cole v. Saxby, 3 Esp. 160; Thompson ». Lay, 1 Hoyt v. Underhill; Hale v. Gerrish; Tibbets v. Gerrish ; Aldrich v. Grimes ; N.H. M. F. Ins. Co. v. Noyes (supra). See note to Lawson v. Lovejoy (ante). 2 Harmer v. Killing, 5 Esp. 102; Ford v. Phillips, 1 Pick. 202. 8 See Hoyt v. Underhill, 9 N. H. 436 (explaining Orvis v. Kimball, 3 N. H. 814), s.c. 10 N. H. 220; Hodges v. Hunt, 22 Barb. 150; Goodsell v. Myers, 3 Wend. 479; Jackson v. Mayo, 11 Mass. 152; Chandler v. Glover’s Adm’r, 82 Penn. St. 509; Reed v. Boshears, 4 Sneed, 120; Bigelow v. Grannis, 2 Hill, 120; Mayer v. McLure, 36 Miss. 389. 4 Thornton v. Illingworth, 2 B. & C. 824; Ford v. Phillips, 1 Pick. 202; per Ld. Kenyon in Thrupp v. Fielder, 2 Esp. 629; Merriam v. Wilkins, 6 N. H. 432 (overrul- ing Wright v. Steele, 2 N. H. 51); Hale v. Gerrish, 8 N. H. 874; 10 N. H. 198; 16 Me. 57; 1 Pars. on Conts. 324. But see Best v. Givens, 3 B. Monr. 72, where an affirm- ance (by way of plea, of record in a second suit between the same parties) after plea of infancy, and. before replication in the first suit, was held good. 12 178 A Pick. 48; Proctor v. Sears, 4 Allen, 95; Chandler v. Glover’s Adm’r, 32 Penn. St. 509; Minock v. Shortridge, 21 Mich. 316; Everson v. Carpenter, 17 Wend. 422. See also 4 Esp. 36; 2 H. Black. 116. As to what specific words and acts amount or do not amount to a con- firmation of executory contracts, the cases are quite numerous, and only a few instances will be here given. Thus, where an infant had given his prom- issory note for a valuable considera- tion (not necessaries), on which he had paid a part before becoming of age, and after reaching his majority made his will directing his just debts to be paid, it was held that this did not (at least at law) amount to a confirmation. Smith v. Mayo, 9 Mass. 62; Martin v. Mayo, 10 Mass. 139; Jackson »v. Mayo, 11 Mass. 147. But the rule in equity seems otherwise, and it has been held that a bond and mort- gage are confirmed by a similar clause, and may be enforced against the de- visee of the property, the property having been devised without reference to the mortgage. See Merchant's Fire Ins. Co. v. Grant, 2 Edw. Ch. 544, citing as authority for the decision Hampson v. Sydenham, Nelson’s Ch. 55; 1 Eq. Cas. Abr. 282, c. 5. See also Harris v. Lee, 1 P. Wms. 482; Marlow v. Pitfield, id. 558, where, how- ever, the debt was for money borrowed and expended in necessaries. A mere acknowledgment of indebted- ness, or even part payment made after reaching majority, will not amount to a ratification. Thrupp v. Fielder, 2 Esp. 628 ; Robbins v. Eaton, 10 N. H. 564; Smith v. Mayo, 9 Mass. 62; Whitney v. Dutch, 14 Mass. 457; Thompson v. Lay, 4 Pick. 48; Hinely v. Margaritz, 3 Penn. St. 428; Ben- ham v. Bishop, 9 Conn. 330; and the INFANCY. other cases cited at the beginning of this note. But the bringing of a suit by the + infant after reaching majority, to en- force an agreement entered into by and with him during minority, is a confirma- tion thereof. Carrell v. Potter, 23 Mich. 379; Boody v. McKinney, 23 Me. 525. See also Middleton v. Hoge, 5 Bush (Ky.), 490. But otherwise where the writ is brought by an as- signee of the infant, by an assignment executed by the infant during minority. Carrell v. Potter (supra). So where the plaintiff, while a minor, contracted to work for the defendant for a year, and worked for him only a part of that time, but until about a month after he became of age, it was held that this was a ratification,' and that, if he then left without suflicient cause, he could not recover for his ser- vices rendered before he became of age. Forsyth v. Hastings, 27 Vt. 646. So, remaining in the service of the United States for more than a year after he became of age, without dissent, receiving pay and rations, is a ratifica- tion of a contract of enlistment. State v. Dimick, 12 N. H. 194. By statute in England (9 Geo. IV. ec. 14, § 5, known as Lord Tenterden’s Act), and in some of the United States,? ‘no action shall be maintained whereby to charge any person upon any promise made after full age, to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writ- ing signed by the party to be charged therewith.” In the construction of this statute (9 Geo. IV. c. 14, § 5), where the plaintiff produced the following paper, signed by the defendant, viz.: ‘I am ! See also Cornwall v. Hawkins, 41 L. J. Ch. 485; 20 W. R. 653. — V. C. W. ? A similar statute exists in Maine (Stat. 1845, c. 166; see Thurlow »v. Gilmore, 40 Me. 878) and Kentucky, and perhaps in other States. (Rev. Stat. c. 22, sec. 1.) . HALE v. sorry to give you so much trouble in calling; but I am not prepared for you; ‘but will without neglect remit you in a short time,’’ the paper having no address or date, and specifying no sum, but where it was proved orally that defendant delivered it to plain- tiff’s agent, on being pressed for the debt, the amount of which was also proved by oral evidence, — it was held GERRISH. 179 that this was a sufficient ratification under said statute. Hartley v. Whar- ton, 11 A. & E. 934. See also Harris v. Wall, 1 Exch. 122, 129, where a distinction is taken between the words ‘‘promise” and “ ratification” contained in said statute. This case is deemed of sufficient importance to be given at length in the note below.’ See also Mawson v. Blane, 10 Exch. 206, 1 Rotre, B. The question to be decided in this special case, which was argued last term, is, whether certain letters written by the defendant after he had attained his age of twenty-one years amounted to a ratification of his liability on a bill of exchange for 500/., which he had accepted during his minority. The defendant attained his majority on the 10th of December, 1845. Under the will of his late brother, he was entitled to more than 2,000/., then in the hands of Messrs. Hall, his brother’s executors. The bill in question, which had been accepted by the defend- ant during his minority, became due on the lst of January, 1846; and the letters which he wrote are as follows: ‘I should feel particularly obliged if you would arrange to keep the bills back for a little time, as my late brother’s executors have lost their mother and only sister lately, and which prevents them from settling with you. The money will be shortly paid, say 2,000/. I have heard from Mr: Barnett this morning, and he tells me a Mr. Green has written to him for the money. Please arrange with him, and write to me by return.””— “The bills drawn out by Mr. M’Barnett and me, and my acceptances, one for 1,500/., and the other for 500/., due on the ist of January last, will most likely be settled shortly, and would have been set- tled before, had not a sudden accident occurred, which prevented their being paid.” —‘‘I beg to inform you that I have this day forwarded your letter to Messrs. Hall, and also the letters from Messrs. Green and M’Barnett. I cannot exactly tell you about what time they will be settled, as I have not the money myself, and, as I have told you before, I have left it entirely in their hands.” — “I received your letter of yesterday, and am sorry to find that you are not contented with the letter I gave you when you were at my house, some short time ago. I have heard from the Messrs. Hall yesterday, and they said they had written to their agents if Dublin to arrange the whole thing. I therefore beg that you will immediately see and inform M. Laz- arus (who I heard from this day) of it. It is not a bit of use writing these sort of letters, as payment will not be made any the sooner for them. What I tell you is perfectly correct, and the matter will be settled shortly.” .: The question is, whether from all or any of these letters the Court can say that the defendant ratified the promise made during his infancy’ to pay the 500/. bill. There-is some difficulty, in cases like the present, in understanding clearly what is meant by a ratification. It is generally, as was remarked by Lord ELLENBoRoUGH in Cohen v. Armstrong, 1 M. & Sel. 724, more correct to say that the infant made a new promise after he came of age. ‘ To say that he ratified it, is an artificial infer- ence from the fact; it is not a ratification unless done animo ratificandi ; whereas it is in general only a new promise to pay.” But whatever difficulty may exist, the law clearly recognizes ratification as something distinct from’ a new promise. In- deed, Lord Tenterden’s Act, 9 Geo. IV. c. 14, § 5, which was cited in the argument before us, expressly makes a distinction between a new promise and the ratification, after majority, of the old promise made during infancy, in both cases requiring a written instrument signed by the party. The first step, therefore, to take towards 180 where the same distinction was recog- nized. Parks, B., said: ‘‘ It seems to me that the meaning of ‘ ratification’ is something different from ‘ promise.’ It is an admission that the party is liable and bound to pay the debt arising from a contract which he made when an infant. Therefore, in order to bring this case within the 9 Geo. IV. c. 14, there must be an admission in writing by the defendant that he was liable to pay on that contract which he made when a minor; that is, that he was liable and bound in preesenti to pay the acceptance.” But as to whether the following writing amounted to such ratification, the acceptance referred to being for the accommodation of the drawer, the Court was equally divided : ‘Has L. paid you 80l. for interest on the 5002. bill? Answer by return of post.” ‘Your brother tells me that you are very uneasy about the 5001. bill drawn by Mr. Pottinger upon me. Pray make yourself easy about it, as I will take care that it is paid; and Sir Henry comes to England in June.” And in Rowe v. Hopwood, 9 B. & S. 881; s.c. Law R. 4 Q. B. 1, where goods having been supplied by the INFANCY. plaintiff to the defendant while he was an infant, when he came of age an account, with the items and prices, was submitted to him, at the foot of which he signed the following: ‘‘ Particulars of account to the end of 1867, amount- ing to 1620. 11s. 6d., I certify to be correct and satisfactory,” it was held that this did not amount to a recog- nition of the debt as an existing lia- bility, so as to be a ratification within said statute. See also Stern v. Freeman, 4 Met. (Ky.) 309, where it was held that, un- der the Kentucky statute, a writing, showing that the defendant had per- formed an act of ratification is as effect- ive as one containing an express ratifi- cation; and that where a writing ad- dressed to another than the plaintiff is relied on, not as constituting a rati- fication, or containing a promise, but as evidence of a ratification previously made by the defendant, it is entitled to the same weight as if it had been ad- dressed to the plaintiff. That the provisions of this statute do not apply to an action for necessaries furnished the infant, see Bonney ». Reardin, 6 Bush (Ky.), 34, 40. a decision of this case is, to understand clearly what is meant by a ratification as distinguished from a new promise. We are of opinion (apart from Lord Tenterden’s act), that any act or declaration which recognizes the existence of the promise as binding, is a ratification to it; as, in the case of agency, any thing which recognizes as binding an act done by an agent, or by a party who has acted as an agent, is an adoption of it. Any written instrument signed by the party, which in the case of adults would have amounted to the adoption of the act of a party acting as agent, will in the case of an infant who has attained his majority amount to a ratification. Applying this test to the case now before us, we think it clear that there has been a ratification. There cannot, we think, be a doubt but that if the bill in question, instead of having been accepted by an infant, had been accepted by A. B. on behalf ofthe de- fendant, being an adult, the letters in question would have amounted to an adoption of the agency of A. B., and that the defendant would have been liable ; and he must on the same grounds be liable in the present case. He, in truth, treats his own act during infancy as having been done on behalf of himself after his majority. Our decision is thus conformable to that of the Court of Queen’s Bench, in Hartley v. Wharton, 11 Adol. & E. 984, where, however, the letter of ratification was certainly stronger than the letters now before us. We should have had great difficulty in holding that the letters of the present defendant were such as to amount to another promise; but, according to the meaning we have attributed to the word ratification, we think that the plaintiff has made out his ratification, and therefore is entitled to our judgment. Judgment for the plaintiff. PALMER v. MILLER. 181 PatmMer v. MILurr. eo (25 Barb. 399. Supreme Court of New York, September, 1857.) Mortgage of Infant voidable. Disaffirmance.— A mortgage executed by an infant, like other executed contracts of infants, is valid until some act is done by him to avoid it. The subsequent execution, after becoming of age, of a deed of the mortgaged premises to a third person, without referring to the mortgage, will not amount to a repudiation of the mortgage. Where the con- trary is not expressed, the intent of the deed will be deemed to be that the grantee shall take subject to any prior mortgage. Ratification relates back to making of the Contract.— Where an infant exe- cutes a mortgage, and, after he becomes of full age, he acknowledges and redelivers it, the subsequent acknowledgment is a ratification of the instru- ment, and relates back in its effect to the original delivery, and cuts off a vol- untary conveyance executed by the mortgagor to another person, in trust for the wife and children of the grantor, after the making and before the acknowl- edgment of the mortgage. AppraL by the defendants from a decree of foreclosure, made at a special term. On the 13th of February, 1854, the defendant, Michael Miller, executed a bond and mortgage to W. K. Strong, to secure the payment of $5000. On the 13th of November following, he exe- cuted another bond and a mortgage on the same premises, to the plaintiff Palmer, to secure the payment of the sum of $5000. He was not of full age until December of that year. In the month of January, 1855, he executed a deed of the same premises to W. K. Strong, in trust for his (the grantor’s) wife and chil- dren, without receiving any valuable consideration. Subse- quently, on the 15th of April, 1855, he and his wife went before’ a commissioner and acknowledged the execution of the mortgage given to the plaintiff, and redelivered it to him, and it was re- corded after the trust deed. About the same time, Miller paid to the plaintiff one hundred and thirty dollars, in the note of a third person, to apply on the mortgage. The plaintiff brought this suit to foreclose the mortgage, and to set aside the trust deed. The Court below held the mortgage to be a valid lien upon the premises, and entitled to priority over the trust deed, and directed a foreclosure of such mortgage, and a sale of the mort- gage premises ; subject, however, to the lien of the prior mortgage given to W. K. Strong. . 182 INFANCY. Wm. Curtis Noyes, for the appellants. John N. Taylor, for the plaintiff. By the Court. Mircusti, P. J. A mortgage is an executed con- tract, and gives a present interest in or to the land, by way of lien upon it. It is a deed to be void on a certain event. Like other executed contracts of an infant, it is valid until some act is done by him to avoid it. In this case the infant did no such act. The deed to Strong, the trustee, did not refer to the mortgages; it simply ‘conveyed all the undivided moiety of all those certain lots” in question. The grantee under such a deed would take subject to any prior mortgages. Such would be its intent, when the contrary was not expressed. It is impossible, then, to infer that this deed repudiated, or was intended to repudiate, the mort- gage to the plaintiff. The subsequent acknowledgment of the mortgage was a ratification of it, and related back, in its effect, to the first delivery, and affected all intermediate persons except purchasers for a new and valuable consideration. The trustee was not such a purchaser. There was no valuable consideration for the deed to him. See Stafford v. Roof, 9 Cowen, 626 ; Bigelow v. Grannis, 2 Hill, 120; Lathrop v. Furguson, 22 Wend. 116; Bool v. Mix, 17 id. 119; The Eagle Fire Co. v. Lent, 6 Paige, 685; Dominick v. Michael, 4 Sand. 418. The judgment should be affirmed with costs. The cases seem generally to concede that the ratification of a contract by the infant after majority relates back to and renders it binding from its incep- tion, in the same manner as, in Mustard v. Wohlford’s Heirs (ante, p. 142), dis- affirmance is said to render it void by relation. See, besides the principal case, Minock v. Shorfridge, 21 Mich. 316; Hall v. Jones, 21 Md. 439; Mc- Cormic v. Leggett, 8 Jones, Law, 425. See also Dunn v. Dunn, 1 Jur. N. 8. 122,8s. c. 24 L. J. Chane. 581, 31 Eng. L. & Eq. 212, as to the point, that, where a suit instituted on behalf of an infant by his next friend is repudiated before the hearing by the infant on his becoming of age, the repudiation has relation to the commencement of the suit; and deeds deposited in court for inspection by an order in the suit, will be ordered to be returned to the party by whom deposited, the defendant in this case. notwithstanding the existence of a claim of lien for costs incurred for the infant plaintiff in the suit, put in by the next friend and his solicitor. And where a minor makes two sales of the same piece of property (slaves in this case) during his minority, if he ratify the younger sale first, after at- taining full age, it will defeat a subse- quent ratification of the former sale. Derrick v. Kennedy, 4 Porter, 41. But, if an infant conveys his land, and on attaining his majority ratifies the conveyance by written instrument, and then conveys to another person for a valuable consideration, the last grantee having notice of the deed made PALMER ¥v. MILLER. 183 in infancy, but no notice, actual or con- the registry laws, and the last grantee structive, of the ratification, such rati- will hold the land. Black v. Hills, 36 fying instrument is within the policy of Ill. 376.1 1 This case is deemed of sufficient interest to be given in full (omitting only argu- ments of counsel), and is as follows : — ApreaL from the Circuit Court of Schuyler County; the Hon. C. L. Hiener, J., presiding. This was a bill in chancery, filed at the October Term, 1858, of the Circuit Court of Schuyler County, by the appellants, to compel a conveyance by the appellees of their title to certain lands. The Circuit Court denied the relief to the extent prayed by the appellants, and they brought the case to this Court. The facts appear in the opinion. Mr. Justice Lawrence delivered the opinion of the Court : — The testimony in this case is somewhat contradictory, but we consider the following state of facts sufficiently proven : On the 18th of August, 1857, the appellee, Henry Hills, then a minor, sold and conveyed to Black, one of the appellants, two tracts of land, not adjoining each other, and described as the E. S. W. and N.4N. W. 81, 2 N.,1 W. Hills attained his majority on the 28th September, 1858; and on that day executed to the appellants, Black and Farwell, his bond for the conveyance to them of the above described lands, upon the payment of $1,700. At the same time that he executed this bond, he indorsed upon it a receipt for $1,000, paid by Black. It appears, from the evidence, that this receipt was in settlement of the transactions which had previously occurred between Hills and Black. In October, 1858, Hills executed one receipt for $300, paid by Farwell, and another for $600, paid by Black. On the 17th of October, 1858, Black took possession of the east half, S. W. 31, above described; but neither he nor Farwell has ever had possession of the other tract. The deed to Black, made while Hills was an infant, was recorded ; but the bond to Black and Farwell’was not. On the 19th of October, 1858, the defendant, Gammon, bought of Hills both the above described tracts, paid him a valuable consideration in property and money, and received a deed. We find nothing in the record showing that Gammon had any knowledge whatever of the previous trans- action between Hills, Black, and Farwell, or that this purchase was made with any fraudulent intent. Hills received from Gammon a pair of mules, a carriage and harness, valued at $750, his note, and some money. The precise amount does not appear. On the foregoing state of facts, the appellants filed their bill for a conveyance from Gammon to themselves of both tracts of land. The Court below decreed a conveyance of the E. 3 of S. W. 31, of which Black was in possession at the time of the sale by Hills to Gammon; but refused it as to the other tract. This refusal is now assigned for error. It is urged by the counsel for the appellants, that, when Gammon bought of Hills, he had constructive notice through the record that Hills, while a minor, had conveyed to Black; and that he bought with knowledge that such conveyance might be ratified, and subject to the chances of ratification. Ex- pressed as an abstract proposition, this would imply that a written ratification by a grantor, after he reaches his majority, of a recorded deed made by him while a minor, need not be recorded as against a subsequent purchaser. No authority to this effect has been adduced ; and we have searched the books in vain for the decisions of other Courts upon this point. As a question of principle, we have little difficulty in saying, that a subsequent purchaser for a valuable consideration will hold the land conveyed, as against a ratification by the grantor of a deed made during his minority, of which ratification the subsequent purchaser has neither actual nor con- structive notice. The argument that the subsequent purchaser takes with knowledge 184 INFANCY. that his grantor may have ratified, and therefore takes subject to that risk, would apply as well to all conveyances. For in every instance where a deed is made, the grantee knows that his grantor may have made a former conveyance; and it is precisely to protect the innocent purchaser against such chances, that our registry laws are enacted. It can in no just sense be said, that the grantee of a person who had conveyed during his infancy, is not to be deemed an innocent purchaser, if he has notice of the first deed. He has as perfect a legal right to purchase land which his grantor had sold during minority, as he would have to purchase land that had never been conveyed at all. The moment the second deed is made, the deed made in infancy is disaffirmed, and becomes void. It is as if it had never been. This right of disaffirmance is necessarily given by the law, to prevent great frauds. Yet the right would be practically of little value to the minor, if the person buying of him, after he becomes of age, is to be considered as incurring, in any way, the censure of the law, and to be therefore denied the position of an innocent purchaser. It does not devolve upon him to investigate whether, in the particular case, his grantor ought to disaffirm, as a question of morals between him and the first grantee. It is enough for him to know that the law gives the absolute right to disaffirm in every case; and he may presume that his grantor is exercising that right for reasons that would be as satisfactory in the forum of conscience as the act is valid in a Court of law. The deed of an infant may be ratified by a written instrument, or by acts in pais, or by long acquiescence. While it is true that the title after ratification is held, for most purposes, to relate back to the original deed, yet it is the ratification which is the effective act, and which secures the deed from its liability at any mo- ment to be made a nullity. We have no doubt that, if the ratification is by means of a written instrument, it is within the policy of the registry laws. It is the object of those laws to disclose to all the world the exact condition of a title; and written instruments relating to land not appearing there, are to be taken as not existing, unless the knowledge of them is brought home in some other way. If the ratifica- tion is by acts in pais, then a subsequent purchaser must be affected with notice of those acts. Of course, possession by the first grantee would be notice, not only of the original deed, but of any acts of ratification. If these principles are correctly laid down, this case has been rightly decided. It does not matter whether the instrument executed by Hills to Black and Farwell should be regarded as a ratification or a ngw sale. In the view we have taken of this case, the result would be the same. The appellants are entitled to a deed for the tract of which Black had actual possession at the date of Gammon’s purchase. As to the other tract, the instrument of ratification being unrecorded, and neither Black nor Farwell being in possession, the title must be left in Gammon. The case of Ogden v. Haven, 24 Ill. 59, depends upon quite other principles than those which control this case. There there was actual notice to the subsequent incumbrancer. Decree affirmed. JENNINGS v. RUNDALL. 185 JENNINGS v. RUNDALL. (8 Term, 335. Court of King’s Bench, Mich. Term, 1799.) Infant not liable in an Action founded upon Contract, though in form ex delicto. —A plaintiff cannot convert an action founded on a contract into a tort, so as to charge an infant defendant. Therefore, where the plaintiff declared that at the defendant’s request he had delivered a mare to the defendant to be moderately ridden, and that the defendant, maliciously intending, &c., wrong- fully and injuriously rode the mare so that she was damaged, &c., it was held that the defendant might plead his infancy in bar, the action being founded on a contract. THE first count in this declaration stated that the plaintiff, on, &e., at the instance and request of the defendant, delivered to the defendant a certain mare of the plaintiff, to be moderately ridden by the defendant; yet that the defendant, contriving and maliciously intending to injure the plaintiff whilst the mare was in the defendant’s custody under such delivery, and before the mare was returned to the plaintiff on, &c., wrongfully and injuri- ously rode, used, and worked the said mare in so immoderate, excessive, and improper a manner, and took so little and such bad care thereof that, by reason of such immoderate, &c., riding, &e., the said mare became, and was greatly strained, damaged, &c. Tn the second count it was alleged, that the plaintiff at the instance and request of the defendant let to hire, and delivered to the defendant, a certain other mare, to go and perform a cer- tain reasonable and moderate journey, &c., yet that the defendant contriving, &c., wrongfully and injuriously rode and worked the said mare a much longer journey, &c. There was also a count in trover for two mares. The defendant pleaded his infancy to the two first counts, to which plea the plaintiff demurred. Marryat, in support of the demurrer (after observing that it was immaterial whether or not infancy could be pleaded to the second count, because, it being pleaded to both counts, if it was a bad plea as to either count, the whole plea was bad), contended that, as the first count was not founded on a contract, but on a-tort, the defendant could not plead infancy to it. That, that count did not state any consideration for the delivery of the mare by the plaintiff 186 INFANCY. to the defendant, or any promise by the defendant to take care of her, or to redeliver her; but that it appears to be a delivery on bail to the defendant, who had abused the plaintiff’s property. That the tort here did not consist in mere neglect or omission, but in a tortious act done by the defendant. That the dictum in the books, that, if the action arise out of the contract, the plaintiff shall not, by declaring in tort, prevent the defendant pleading infancy, must be confined to cases where the wrong complained of consists in omission, or in some act which is a tort only by construction of law. That such was the ground of decision in Grove v. Nevill, 1 Keb. 778; (said in 1 Keb. 918, 914, to have been decided), where in an action upon the case in nature of a deceit on sale by the defendant of goods as his own, when in truth they belonged to another, the Court said, “ This is no actual tort, or any thing ex delicto, but only ex contractu.”” That in Johnson v. Pie; where the defendant had falsely and fraudulently asserted him- self to be of full age, and had, as such, executed a mortgage to the plaintiff, and where it was holden that the defendant, an infant, was not answerable, the action was founded on the very contract in which the defendant had cheated the plaintiff: whereas here is a tortious act done by the defendant, and that, too, subsequent to the time when any supposed contract could have been entered into respecting the hire of the mare. He ob- served, that an infant is answerable in an action for slander, Noy, 129; because there an act is done by the defendant; and in that case it was said that malitia supplet etatem ; so here malice is laid. That in trover an infant is also responsible, on account of the wrongful conversion subsequent to the bailment ; though in most instances in trover the act is only a breach of trust, or violation of duty; and that, even in an action of trespass for mesne profit, he cannot plead infancy, though there he becomes a trespasser by construction of law. That, if an infant wilfully destroyed any thing that had been bailed to him, there is no doubt but that he would be liable in an action for the tort; and that this was in effect the same, because. here he rendered a mare, that had been bailed to him, less valu- able by his wrongful and injurious act. Wood, contra, was stopped by the Court. 1 1 Keb. 905, 918, and 1 Lev. 169. JENNINGS v. RUNDALL. 187 Lord Kenyon, C. J. The law of England has very wisely protected infants against their liability in cases of contract ; and the present case is a strong instance to show the wisdom of that law. The defendant, a lad, wished to ride the plaintiff's mare a short journey; the plaintiff lent him the mare to hire; and in the course of the journey an accident happened, the mare being strained; and the question is, whether this action can be maintained. Iam clearly of opinion that it cannot: it is founded on a con- tract. If it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infants. Lord Mans- FIELD, indeed, frequently said that this protection was to be used as a shield, and not as asword ; and, therefore, if an infant commit an assault, or utter slander, God forbid’ that he should not be answerable for it in a Court of justice. But where an infant has made an improvident contract with a person who has been wicked enongh to contract with him, such person cannot resort to a Court of law to enforce such contract. And the words, “ wrongfully, injuriously, and maliciously,” intro- duced into this declaration cannot vary the case. Grose, J. I am of the same opinion. In the case of Manby v. Scott,! this distinction was taken, that, if the action against an infant be grounded on a contract, the plaintiff shall not convert it into a tort. “If one deliver goods to an infant on a contract, knowing him to be an infant, the infant shall not be charged for them in trover and conversion; for by that means all infants in England would be ruined.” A very few years after the decision of that case, the case of Johnson v. Pye arose, according to one report of which Lord C. J. KEELING expressed great indignation at the attempt to charge an infant in tort, for that which was the foundation of an action of assumpsit. He said, “ The judgment shall stay for ever, else the whole foundation of the common law will be shaken; for this was but a slip, and he might have pleaded his minority here.” Lawrence, J. The true distinction is that mentioned by my Brother Grosz, and not that stated at the bar, between negli- gence and an a€t done by the infant. It is argued, that if no act be done by the infant he may plead his infancy, but that infancy 1 1 Sid. 129. 188 INFANCY. is not a defence where an act has been done. If that were so, an infant would not be liable in many instances of trover, where the conversion consists merely in a non-delivery; and yet in trover an infant is always liable. According to the same rule, if an action were brought against an infant for negligently keeping the plaintiff’s cattle, by which they died, infancy might be pleaded in bar; but if the declaration charged the defendant with having given the cattle bad food, by which they died, it could not. But this certainly is not the true distinction. Le Buanc, J. The plea of infancy is a good bar to this action, on the ground that the act done in this case is the foun- dation of an action of assumpsit. And the reason of the distinc- tion taken in the case in Siderfin is, that the plaintiff shall not, by changing the form of the action, vary the liability of the infant- Now, if the plaintiff could not have maintained an action of assumpsit against the infant, neither can he maintain the action in its present form. On this short ground, therefore, I think the plea of infancy is a good defence to this action. Judgment for the defendant. See the following cases and notes. Homer v. THwine. (8 Pick. 492. Supreme Judicial Court of Massachusetts, July 22, 1826.) Infant liable when Action sounds in Tort. — An infant who hires a horse to go to a place agreed on, but goes to another place in a different direction, is liable in trover for an unlawful conversion of the horse. Trover for a horse. One of the defendants was defaulted. ” Thwing, who was an infant, defended by guardian. The plaintiff offered evidence that the horse was let by him to the defendants to drive in a chaise to the Punch Bowl in Brook- line, and that they went to Fresh Pond in Cambridge without leave ; and afterwards to the Punch Bowl; and that the horse was returned much injured. The counsel for Thwing contended, that as this was a transaction arising originally on contract, in which the infancy of Thwing would have been a good defence, HOMER v. THWING. 189 the plaintiff should not recover upon the same facts by changing the form of his action to tort. But the jury were instructed, for the purposes of this trial, that the action would lie against Thwing, notwithstanding his infancy ; and a verdict was returned for the plaintiff. If the Court should be of opinion that the instruction to the jury was wrong, the plaintiff was to be nonsuited; but, other- wise, judgment was to be entered according to the verdict. Dunlap now insisted upon the objection made at the trial. Jennings v. Rundall, 8 T. R. 335, is decisive of this case. The wrong here arises out of a contract belonging to the third class of bailments in Coggs v. Bernard, 2 Ld. Raym. 918; but the wrong for which infants are responsible must arise wholly ex delicto. Johnson v. Pie, 1 Lev. 169, and 1 Keb. 905, 918. Ifthe facts here would furnish a good defence to an action on the con- tract, they will to an action of tort; for the Court will look at the substance, rather than the form, of the action. Bristow v. East- man, 1 Esp. 172, s. c. Peake’s Cas. 222; Manby »v. Scott, 1 Sid. 129. In Jennings v. Rundall, it is said that trover will lie against an infant; but that must be where his conduct is wholly tortious. That was an action against an infant for riding immod- erately a mare which had been delivered to him to be moderately ridden, and the declaration contained a count in trover; and yet the action could not be sustained. See also 1 Dane’s Abr. 148; 1 Chit. Pl. 65; 1 Pothier on Oblig. 71. The only case which seems to have a contrary bearing is that of Wheelock v. Wheelwright, 5 Mass. 104. That case was decided without any allusion to the distinction now taken in respect to an infant, that his acts must be wholly tortious to sustain an action. In the case at bar there was only a constructive tort, for which an infant is not liable. S. D. Parker, for the plaintiff, relied on the case last cited, of Wheelock v. Wheelwright. Morton, J., delivered the opinion of the Court. The defence in this case is infancy. It is contended that this action is founded in contract, and that the defendant cannot be ousted of this, defence by changing the form of action from contract to tort. Infants are liable in actions arising ez delicto, but not in those arising ex contractu. The defendant, however, contends, that 190 INFANCY. there is a qualification of this rule; and that infants are liable for positive wrongs only, and not for constructive torts. But we know of no such distinction; and in the case of Jennings »v. Rundall, so much relied upon by the defendants’ counsel, it is expressly rejected. It is true that an infant cannot become a trespasser by any prior or subsequent consent; but he may be guilty of torts, as well by omissions of duty as by the commission of positive wrongs. 1 Chit. Pl. 65 (6 Amer. ed. 87); Co. Lit. 180 4, Butler’s note, 56. He is also liable for frauds as well as for torts. And his liability is to be determined by the real nature of the transaction, and not by the form of the action. 1 Dane’s Abr. 143; 1 Esp. 172. Although an infant shall not be charged in trover for goods sold to him with a knowledge of his infancy (Manby v. Scott, 1 Sid. 129), and although an ac- tion will not lie, against an infant for affirming himself to be of full age in the execution of a contract (Johnson v. Pie, 1 Lev. 169, and 1 Keb. 905), yet detinue will lie against an infant for goods delivered upon a special contract, for a specific purpose, after the contract is avoided, Mills v. Graham, 1 New Rep. 140; and assumpsit will lie against an infant for money embezzled ; for the Court will look through the form of the action into the tortious nature of the transaction, 1 Esp. 172. It has been hol- den, that trover will not lie against an infant for immoderately using a horse which he had contracted to use moderately, on the ground that the action could only be supported upon the contract. Jennings v. Rundall, before cited. But, in the case at bar, the driving of the horse beyond the place to which the defendant had permission to go, was a conversion ; and trover is the proper remedy. . In the case of Wheelock v. Wheelwright, 5 Mass. 104,— which, in the facts as well as the principles, is similar to this, — it was decided, not only that case for improperly using the horse would not, but that trover was the only action which would, lie. Whenever trover is the proper form of action, it will lie against an infant. The defence therefore is insufficient, and judgment must be entered on the verdict. See the cases immediately following and notes. PENROSE v. CURREN. 191 PENROSE v. CURREN. (3 Rawle, 351. Supreme Court of Pennsylvania, Feb. 2, 1832.) Infant not liable when Action sounds in Contract.— An infant who hires a horse to go to one place, but goes to another, and kills the animal by severe usage, may plead his infancy in bar of an action on the case for damages. On a writ of error to the District Court for the city and county of Philadelphia. This appeared to be an action on the case brought by William Curren, the defendant in error, against Samuel Pen- rose, who appeared by his guardian Randall Hutchinson, in which the plaintiff below filed the following statement: ‘“ On Saturday the 2d day of June, 1827, the defendant hired from the plaintiff a horse and gig, to go to Germantown on the following day. On the following day, to wit, June 3, 1827, the defendant took the said horse and gig, and rode and drove to Chester in Delaware County, and to other places to the plaintiff unknown; and, by hard, severe, unnecessary, and cruel driving and treatment, killed the said horse, on the said 3d day of June, 1827. The plaintiff's claim is for this injury to his property, and he claims damages in the sum of one hundred and twenty-five dollars. The defendant pleaded “infancy, ” and that “he is not guilty of the supposed grievances laid to his charge,’ &c. The jury returned a special verdict, by which they found, that all the allegations contained and set forth in the plaintiffs state- ment of his cause of action were true; and that the defendant, at the time of committing the said trespass mentioned in the said statement, was under the age of twenty-one years. If the Court should be of opinion that the defendant was legally responsible in this form of action, and under these facts, the jury found for the plaintiff, and assessed the damages at one hundred and twenty- five dollars, with six cents costs; and, if otherwise, they found for the defendant. On this special verdict, the District Court gave judgment for the plaintiff below. Bouvier, tor the plaintiff in error. The statement filed by the plaintiff below, which is in the nature of a declaration, is upon a contract for hiring a horse, to be returned to the owner; which 192 INFANCY. the defendant failed to do, but killed him by hard driving. Upon the contract the defendant was not liable, being in his minority, and the subject-matter of the contract not being necessaries fur- nished to him. The plaintiff now attempts to render the infant liable, by converting an action ex contractu into an action ex delicto. This he cannot do. Where goods are delivered to an infant, know- ing him to be such, trover cannot be maintained. Manby v. Scott, 1 Sid. 129. So where a plaintiff declared, that, at the defendant’s request, he had delivered to him a mare to be moder- ately ridden ; and that the defendant, maliciously intending, &c., wrongfully and injuriously rode the mare, so that she was dam- aged, &c. it was held that the defendant might plead his infancy in bar, the action being founded on a contract. Jennings v. Rundall, 8 T. R. 335. The defendant, being an infant, affirmed himself to be of full age, by which means he obtained a loan of one hundred pounds of the plaintiff. After verdict for the plaintiff, on not guilty pleaded, the judgment was arrested. John- son v. Pie, 1 Keb. 905, 918; s.c. 1 Sid. 258; 1 Lev. 168. Aninfant cannot be made a trespasser either by a prior command or subse- quent assent. Co. Litt. 180 6, note 4. It is against the policy of the law to make an infant liable upon a contract, except for necessaries, and the law will not permit it to be done indirectly by converting the contract into a tort. Curtin v. Patton, 11 Serg. & Rawle, 310; 1 Com. on Cont. 150, 151; Schenk v. Strong, 1 Southard, 87. Brewster, for the defendant in error. If an action such as this cannot be maintained by the English Courts, it can in those of Pennsylvania. In England the Courts uniformly favor infants, perhaps to preserve wealth in particular families, — a reason which can have no influence here. The case in Southard was decided on the ground that the carriage was broken by accident, which distinguishes it in an essential manner from the case at bar, the basis of which is fraud and tort. There was fraud in the inception of the contract; and the defendant cannot shelter himself under the form of contract, to avoid the consequences of the fraud. Infants are liable for deceit, though in form the action is on a contract; assumpsit will lie against an infant for money embezzled by him. So an action may be maintained against an infant on a warranty of a horse. The Court will look through the form, in order to get at the merits of PENROSE ¥v, CURREN. 193 the case. Wood v. Vante, 1 Nott & McCord, 197; Homer ». Thwing, 3 Pick. 492; Vasse v. Smith, 6 Cranch, 226. The opinion of the Court was delivered by Rocrrs, J. The law has wisely provided that infants shall not be liable on contracts, except for necessaries. It cannot be pretended that here the infant would be liable on the contract of hiring, as the plaintiff has not brought his case within the principle of the exception, The plaintiff rests his right to recover on the fact, that the minor was guilty of a con- version by riding to Chester instead of Germantown. He con- tends that, wherever trover is the proper form of action, it will ‘lie as well against an infant as an adult; and in this position, it must be admitted, he is supported by a decision of a Court of high authority in Homer v. Thwing, 3 Pick. 492. I have exam- ined that case with the attention it merits, and I am compelled to say, I cannot agree to the principle which is there decided. It is true that detinue will lie against an infant for goods delivered upon a special contract, for a specific purpose, after the contract is avoided. It is also true that assumpsit will lie against an infant to recover money embezzled. To this I fully accede ; because the ‘object of the suit, in the first case, is to recover the article itself, or damages for its detention. And this decision is founded in sheer justice, as the privilege of protection is given to the minor as a shield, and not as a sword; nor is it necessary for his safety that he could be permitted to retain the article when the con- tract has been rescinded, without paying an equivalent for it. The vendor is remitted to his original rights when the contract has been rescinded ; and, as a consequence, he may assert them either by action of detinue, replevin, or trover. It is also altogether proper that money embezzled by an infant should be recovered in assumpsit. The occupation in which he is employed is for the benefit of the infant; and the embezzlement is a tortious act, in which no blame is imputable to the employer. But is that the case here? The infant derives no benefit from the transaction ; and, what is of more consequence, the plaintiff himself is in fault. The loss which ensues results from the contract of hiring with a person whom he is bound to know was a minor, and as such inca- pable of contracting. This is a transaction in which parents and guardians have a deep interest, and particularly such as educate their children from under their own eye, at a distance, in our semi- 18 194 INFANCY. naries of learning. It amounts to this: If the keeper of a livery- stable, or an innkeeper, whose business it is to let out horses and carriages to hire, chooses to trust them to a minor, contrary to the assent and wish of the parent, and an injury is done by the young man, in the folly and heedlessness of youth, going to a different place or farther than he intended, the father must either pay the debt or damages, to whatever amount they may be, or suffer his child to be disgraced by imprisonment. It seems to me that parents would have much reason to complain of a tule which involves such consequences. If the plaintiff should succeed, there would be no want of pretences upon which infants might be charged, and there would be an end to the protection’ which the law so wisely affords them. I cannot agree that, from the commission of a wrong, a right of action can arise. If the contract of hiring came within the exception of necessaries, as might be where a horse was hired to visit a sick parent, &c., then the infant would be liable for the consequences ; and, if injury ensued from cruel driving or improper treatment, the owner would have an appropriate remedy. Had the minor gone to Ger- mantown, as he intended, then Schenk v. Strong, 1 Southard, 87, would have been express authority adverse to the plaintiff’s claim. The foundation of the action is contract, and, disguise it as you may, it is an attempt to convert a suit originally,in con- tract into a constructive tort, so as to charge the infant. So far are minors shielded from the consequences of their own acts, that action will not lie against them where they affirm them- selves to be of full age, nor on a warranty in the sale of a horse. Johnson v. Pie, 1 Lev. 169; 1 Keble, 905. Nor will, I appre- hend, trover lie against an infant for goods sold to him, either with or without a knowledge of his infancy ; certainly not where he knows the fact of infancy. Manby v. Scott, 1 Sid. 129. The contract being unlawful, no action arises to the adult, who is bound to know with whom he is contracting, and must be aware that such contracts are contrary to the policy of the law. It operates not only as a shield to the infant, but as a penalty upon the adult. Wherever a person has not parted with the property, then he can assert his right, as well against an infant as an adult, as in every kind of bailment; and, if the conversion had been the non- delivery of the horse and carriage hired, the owner might have VASSE v. SMITH. 195 sustained detinue, replevin, or trover. I would here remark, that, notwithstanding what is said in Homer v. Thwing, I cannot distinguish this from Jennings v. Rundall, 8 T. R. 335. In the second count of the declaration, it was alleged that the plaintiff let to hire and delivered to the defendant a certain other mare, to go and perform a certain reasonable and moderate journey, &.; and yet that the defendant, contriving, &c., wrongfully and injuriously rode and worked the said mare a much longer jour- ney, &c. The defendant pleaded infancy to both counts, to which the plaintiff demurred. Here, then, there was the construc- tive conversion of the property, which is the turning-point of the decision in Homer v. Thwing ; and yet the Court, notwithstanding, gave judgment for the defendant. The fundamental error seems to me to consist in considering the conduct of the infant as a violation of contract, whereas there was no contract which could be enforced. ° Judgment reversed, and judgment for the defendant. See notes to Gilson v. Spear (post). Vasse v. SMITH. (6 Cranch, 226. Supreme Court of the United States, February Term, 1810.) Plea of Infancy. Effect of, in Actions ex delicto. — Infancy is a bar to an action by an owner against his supercargo for breach of instructions, but not to an action of trover for the goods. Still, however, infancy may be given in evi- dence in an action of trover, upon the plea of not guilty; not as a bar, but to show the nature of the act which is supposed to be a conversion. An Infant is liable in Trover, although the goods were delivered to him under a contract, and although they were not actually converted to his own use. A Bill of Exceptions ought to state that evidence was offered of the facts upon which the opinion of the Court was prayed. Error to the Circuit Court for the District of Columbia. The declaration had two counts: 1st, a special count, charg- ing the defendant Smith, who was a supercargo, with breach of orders; 2d, trover. The first count stated that Vasse, the plain- tiff, was owner and possessed of seventy barrels of flour, and, at 196 INFANCY. the instance and request of the defendant, put it on board a schooner at Alexandria, to be shipped to Norfolk, under the care, management, and direction of the defendant, to be by him sold for and on account of the plaintiff, at Norfolk, for cash, or ona credit at sixty days, in good drafts on Alexandria, and negotiable in the Bank of Alexandria. That the defendant was retained and employed by the plaintiff for the purpose of selling the flour as aforesaid, for which service the plaintiff was to pay him a rea- sonable compensation. That the defendant received the flour at Alexandria, put it on board the schooner, and sailed, with the flour under his care and direction, to Norfolk: ‘‘ yet the defendant, not regarding the duty of his said employment, so badly, carelessly, negligently, and improvidently behaved himself in said service and employment, and took such little care of the said flour by him so received -as aforesaid, that he did not sell the same, or any part thereof, at Norfolk, for cash, or on a credit of sixty days for drafts on Alex- andria, negotiable in the Bank of Alexandria; but the said defend- ant, on the contrary thereof, by and through his own neglect and default, and through his wrongful conduct, carelessness, and im- providence, suffered the same and every part of the said seventy ‘barrels of flour, in his possession as aforesaid, to be embezzled, or otherwise to be wholly lost, wasted, and destroyed.” The second count was a common count in trover for the flour. The defendant, besides the plea of not guilty, pleaded infancy to both counts; to which last plea the plaintiff demurred gen- erally. The Court below rendered judgment for the defendant upon the demurrer to the plea of infancy to the first count; and for the plaintiff, upon the demurrer to that plea to the second count. Upon the trial, in the Court below, of the issue of not guilty to the count for trover, three bills.of exception were taken by the plaintiff. The first bill of exceptions stated that the de- fendant offered evidence to prove that the flour was consigned and delivered to the defendant by the plaintiff, under the follow- ing letter of instructions : — “ Mr. SAMUEL SMITH: Sir, — I have shipped on board the schooner ‘ Sisters,’ Captain , bound to Norfolk, seventy barrels of superfine flour, marked A. V., to you consigned. As soon as you arrive there, I will be VASSE v. SMITH. 197 obliged to you to dispose of it as soon as you can, to the best advantage, for cash, or credit at sixty days in a good draft on this place, negotiable at the Bank of Alexandria. I should prefer the first, if not much difference. However, do for the best of my interest.” (Signed) “* AMB. VaSsE.”’ And that the defendant received the flour in consequence of that letter of instructions, and upon the terms therein men- tioned. That the flour was not sold by the defendant at Norfolk ; but was shipped from thence by him, without other authority than the said letter of instructions, to the West Indies, for and on account of one Joseph Smith, as stated in the bill of lading, which was for three hundred and ninety-eight barrels, seventy of which were stated in the margin to be marked A. V., 198 I. S., 100 D. J. S., and 30 P. T. That the defendant, when he received the flour, and long after he shipped it, was an infant under the age of twenty-one years. Whereupon the Court, at the prayer of the defendant, instructed the jury that, if they found the facts as stated, the defendant was not liable upon the count for trover. The second exception was the admission of evidence of the de- fendant’s infancy. The third exception stated that, ‘upon the facts aforesaid (the facts in the first bill of exceptions mentioned), the plaintiff prayed the Court to instruct the jury that, if they shall be of opin- ion that the defendant was under the age of twenty-one years, and between the age of nineteen and twenty years; and that the defendant of his own head shipped the flour to the West Indies, in a vessel which has been lost by the perils of the sea; and that the said shipment was made with other flour, on account of his father, Joseph Smith, — in such case the defendant has thereby committed a tort in regard to the plaintiff, for which he is liable in this action notwithstanding his infancy aforesaid ; which instruc- tion the Court refused to give. The verdict and judgment being against the plaintiff, he brought his writ of error. E. F. Lee and C. Lee, for the plaintiff in error. Swann, contra. Marswat., C. J., delivered the opinion of the Court, as follows: The first error alleged in this record consists in sustaining the plea of infancy to the first count in the declaration. This count 198 INFANCY. states a contract between the plaintiff and defendant, by which the plaintiff committed seventy barrels of flour to the care of the defendant, to be carried to Norfolk, and there sold for money, or on sixty days’ credit, payable in drafts on Alexandria, negotiable in the bank. The plaintiff then alleges that the defendant did not perform his duty in selling conformably to his instructions ; but, by his negligence, permitted the flour to be wasted so that it was lost to the plaintiff. This case, as stated, is completely a case of contract, and exhibits no feature of such a tort as will charge an infant. There can be no doubt but that the Court did right in sustaining the plea. The second count is in trover, and charges a conversion of the flour. That an infant is liable fora conversion is not contested. The Circuit Court was itself of that opinion, and therefore sustained the demurrer to this plea. But, in the progress of the cause, it appeared that the goods were not taken wrongfully by the defendant, but were committed to his care by the plaintiff; and that the conversion, if made, was made while they were in his custody under a contract. The Court then permitted infancy to be given in evidence on the plea of not guilty. To this opinion an exception was taken. If infancy was a bar to a suit of trover brought in such a case, the Court can perceive no reason why it may not be given in evidence on this plea. If it may be given in evidence on non-assumpsit, because the infant cannot contract, with at least as equal reason may it be given in evidence in an action of trover in a case in which he cannot convert. But this Court is of opinion that infancy is no complete bar to an action of trover, although the goods converted be in his pos- session, in virtue of a previous contract. The conversion is still in its nature a tort: it is not an act of omission, but of commis- sion, and is within that class of offences for which infancy cannot afford protection. Yet it may be given in evidence; for it may have some influence on the question, whether the act complained of be really a conversion or not. The Court, therefore, does not consider the admission of this testimony as error. The defend- ant exhibited the letter of instructions under which he acted, which is in these words: ‘ Sir,” &c.; but the plaintiff offered evidence that the flour was not sold in Norfolk, but was shipped by the defendant to the West Indies, for and on account of a certain Joseph Smith, as by the bill of lading which was pro- VASSE v. SMITH. 199 duced. The defendant then gave his infancy in evidence, and prayed the Court to instruct the jury that, if they believed the testimony, he was not liable on the second count stated in the plaintiff's declaration, which instruction the Court gave, and to this opinion an exception was taken. This instruction of the Court must have been founded on the opinion that infancy is a bar to an action of trover for goods com- mitted to the infant under a contract, or that the fact proved did not amount to a conversion. This Court has already stated its opinion to be, that an infant is chargeable with a conversion, although it be of goods which came lawfully to his possession. It remains to inquire whether this is so clearly shown not to be a conversion as to justify the Court in saying to the jury the defendant was not liable in this action. The proof offered was, that the defendant shipped the goods on account of Joseph Smith. This fact, standing unconnected with any other, would unques- ‘tionably be testimony which, if not conclusive in favor of the plaintiff, was at least proper to be left to the jury. But it is urged that this statement refers to the bill of lading, from the notes in the margin of which it appears that, although the bill of lading, which was for a much larger quantity of flour, was made out in the name of Joseph Smith, yet, in point of fact, the shipment was made for various persons, and among others for the plaintiff. The Court perceive in this bill of exceptions no evidence explanatory of the terms under which this shipment was made ; and the marks in the margin of the bill of lading do not, in them- selves, prove that the shipment was not made for the person in whose name the bill was filled up. It is possible that it may have been proved to the jury that this flour was really intended to be shipped on account of the plaintiff, and that the defendant did not mean to convert it to hisown use. But the letter did not authorize him so to act. It was not, therefore, a complete dis- charge; and, should it be admitted that an infant is not charge- able with a conversion made by mistake, this testimony ought still to have been left to the jury. The defendant would cer- tainly be at liberty to prove that the shipment was in fact made for Vasse, and that he acquiesced in it so far as to consider the transaction not as a conversion; but, without any of these circumstances which, if given in evidence, ought to have been 200 INFANCY. left to the jury, the Court has declared the action not sustain- able. This Court is of opinion that the Circuit Court has erred in directing the jury that, upon the evidence given, the defendant was not liable under the second count; for which their judgment is to be reversed, and the cause remanded for further proceedings.1 See notes to Gilson ». Spear (post). JOHNSON v. PIE. (1 Levinz, 169. Court of King’s Bench, Trin. 17 Car. II. 1665.) An infant, guere, if chargeable in an action for a false affirmation, whereby one is deceived. Cass, for that the defendant, being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him 1000. and so he had cheated the plaintiff by this false affirmation. After verdict for the plaintiff on not guilty, and 1007. damages, ’twas moved in arrest of judgment that the action would not lie for this false affirmation. But the plaintiff ought to have informed him- self by others, and cited Grove and Nevill’s case, to be adjudged in this Court in Easter Term 16 Car. II. Rot. 400; where, in case against an infant for selling a false jewel, affirming it to be a true one, ‘twas adjudged the action did not lie; to which ’twas an- swered, that this is a trespass on the case, and an infant is charge- able for trespass, though not for contracts. Kelynge and Wyndham held that the action did not lie, because the affirmation, being by an infant, was void: and it is not like to trespass, felony, Se. ; for there is a fact done. Twysden doubted, for that infants are chargeable for trespasses (Dyer, 105); and so if he cheat with false dice, &c. But ‘twas adjourned. But see 1 Keb. 905, 913. ‘ Judgment arrested. See notes to Gilson v. Spear (post). 1 The Chief Justice noticed also the phraseology of the third bill of exceptions. It prays the opinion of the Court upon certain facts, without stating that any evi- dence of those facts was given to the jury. It is doubtful whether those facts exist in the case, and whether the Court would be bound to give an opinion upon them. 28. c. 1 Siderfin, 258. . GILSON ¥. SPEAR. 201 GILson v. SPEAR. (38 Vt. 811. Supreme Court of Vermont, November Term, 1865.) Infant, when liable for Fraud. — An infant is liable in an action ex delicto for an actual and wilful fraud only in cases in which the form of action does not sup- pose that a contract has existed ; but where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defence. Therefore, an Action on the Case for Deceit in the sale of a horse cannot be sus- tained against an infant; nor would the fact that the deceit consisted in a fraudulent concealment of a material fact distinguish the case from one in which there was a false and fraudulent affirmation im respect to the same fact; nor would the plaintiff's cause of action derive any additional strength from his offer to return the horse and receive back the purchase-money. THis is an action on the case for deceit, or fraudulent conceal- ment of unsoundness, in the sale of a horse. The plaintiff in his declaration alleged that, on the Ist of April, 1863, he purchased of the defendant a horse for the price of one hundred and fifteen dollars, as and for a sound horse: and that the defendant, at the time of the sale, to induce the plaintiff to give this price, affirmed that the horse ‘‘ was sound, wind and limb, and free from any defect whatever, but refused to warrant the same ;’’ whereas, the horse at that time in fact was unsound, and then and for a long time before had an incurable disease called the heaves, and was Jame; all which was well known to the defendant; and that the defendant, intending to cheat and defraud the plaintiff, concealed this disease and lameness from him, and he, the plaintiff, was wholly ignorant of the same; and that by reason of the same the horse is rendered worthless; and the plaintiff averred in his decla- ration that he has offered to return the horse to the defendant and receive back,the purchase-money given for the same, which offer was refused by the defendant. The defendant plead in the county Court to this declaration: (1), not guilty; and (2), that, at the time of the sale of the horse to the plaintiff, he, the defendant, was an infant within the age of twenty-one years, to wit, of the age of twenty years, concluding with a verification. The plaintiff joined issue on the first plea, and demurred to the second plea. At the December Term, 1865, Windsor County Court, Barrert J., presiding, the demurrer was pro forma over- 202 INFANCY. ruled, and the plea of infancy was adjudged sufficient, and judg- ment was thereon rendered in favor of the defendant. To this decision and judgment the plaintiff excepted. J. J. Wilson and A. P. Hunton, for the plaintiff. Hutchinson & Rowell, for the defendant. The opinion of the Court was delivered by Ketioce, J. The sole question in this case is whether an action on the case for deceit in the sale of a horse can be sustained against an infant; and, in considering this question, the facts alleged in the plaintiff ’s. declaration are to be treated as admitted by the demurrer. It is an admitted general principle that an infant is liable in actions ex delicto for positive wrongs and con- structive torts or frauds; and it is equally well settled that, where the substantial ground of action is contract, a plaintiff cannot, by declaring in tort, render a person liable who would not have been liable on his contract. Whether the fraud in this case should ren- der the defendant liable to an action ex delicto, is the question which we are to consider. In Johnson v. Pie, reported in 1 Levinz, 169, and 1 Siderfin, 258, and 1 Keble, 905, 918 (decided in 1664 after being twice argued), the infant had affirmed that he was of full age, and, confiding in this representation, the plaintiff had lent him money ; and the action was an action on the case for the infant’s fraudulent representation in respect to hisage. After verdict for the plaintiff, judgment was arrested on the ground that, “although infants may be bound by actual torts, as trespass, &c., which are v7 et armis et contra pacem, they will not be bound by those which sound in deceit ;”” and Lord Chief Justice KEELING is reported to have expressed great indignation at the attempt to charge an infant in tort upon that which was the foundation of an action of assumpsit, and to have said that, if the judgment was not arrested, the whole foundation of the common law would be at stake. In Graves v. Neville, 1 Keble, 778,—an action on the case in the nature of deceit for the sale by the defendant of goods as his own, when in truth they belonged to another, — the Court said that this was no actual tort, nor any thing ex delicto, but only ex contractu. The principle of these cases has uniformly been adhered to in the English Courts. In Green v. Greenbank, 2 Marshall, 485 (4 E. C. L. 875), where the plaintiff declared in an action on the case, that, having agreed to exchange mares with the defendant, the latter by falsely GILSON v. SPEAR. 203 warranting his mare to be sound, well knowing her to be un- sound, &c., falsely and fraudulently deceived the plaintiff, &c., it was held that infancy was a good plea in bar, on the ground that the assumpsit was clearly the foundation of the action, and that the deceit was practised in the course of the contract. The case of Johnson v. Pie was recognized as of unquestioned author- ity in the cases of Price v. Hewett, 8 Exch. 146 (18 Eng. L. & E. 522), decided in 1853; Liverpool Adelphi Loan Association v. Fairhurst et ux., 9 Exch. 422 (26 Eng. L. & E. 393), decided in 1854; Wright v. Leonard et uz., 11 J. Scott, n. s. (Cc. B. 103 E. C. L.) 258, decided in 1861; and Bartlett v. Wells, 1 Best & Smith, Q. B. (101 E. C. L.) 836, decided in 1862. See also the case of De Roo et al. v. Foster, 12 J. Scott n. s. (C. B. 104 E. C. L.) 272, decided in 1862. In the case of the Liy- erpool Adelphi Loan Association v. Fairhurst et uz., ubi supra, Parke, B., says expressly ‘that where the tort is incidental to the contract, as the contract is altogether void, the fraud goes for nothing.” The rule of decision in the case of Johnson v. Pie seems never to have been questioned, much less overruled, in any English case; and it remains as good law in the English Courts at the present day. In this country, although there has not been the same uniformity in the decisions of the Courts, it has been recognized and approved in many cases. Brown »v. Dunham, 1 Root, 272; Geer v. Hovy, id. 179; Wilt v. Welsh, 6 Watts, 9; Brown v. McCune, 5 Sandf. Sup. Ct. 228; Homer v. Thwing, 3 Pick. 492; Tucker v. Moreland, 10 Peters, 59. In the case of West v. Moore, 14 Vt. 447, it was expressly held, as in the English case of Green v. Greenbank, udi supra, that in- fancy was a good bar to an action founded upon a false and fraudulent warranty upon the sale of a horse ; and in the opinion delivered by Bennett, J., the case of Johnson v. Pie is expressly recognized as being of controlling authority. The same princi- ple was recognized and reaffirmed in the case of Morrill v. Aden, 19 Vt. 505. There are cases in this country in which this rule of decision has been questioned or overruled: as in Wood »v. Vance, 1 Nott & McCord (S. C.), 197, which was an action on the case for deceit in a warranty on an exchange of horses ; and Peigne v. Sutcliffe, 4 McCord (S. C.), 387, which was an action on the case for the embezzlement of goods entrusted to an infant as a carrier; and Fitts v. Hall, 9 N. H. 441, in ¢ 204 INFANCY. which it was distinctly held that an infant is answerable for a fraudulent representation and deceit which is not connected with the subject-matter of the contract, but by which the other party is induced to enter into one with him, if he afterwards avoids the contract by reason of his infancy; as where he repre- sents himself to be of full age, and thereby induces a person to sell him goods upon a credit; and a distinction is suggested of this nature, that an infant is not liable in case for any fraudulent affirmation that makes a part of the contract, — as for a fraudu- lent representation as to the quality of goods, — but that for fraudulent representations anterior or subsequent to the con- tract, and not parcel of it, he is liable. This last case is entitled to great respect as being well considered, and was referred to with approbation by Repriexp, J., in Towne et al. v. Wiley, 23 Vt. 355, — a case which stood upon ground which did not require any such rule of decision. If the question was to be reconsidered in the English Courts, we should readily agree that there is great cogency and force in the reasoning by which the decision in the case of Fitts v. Hall is sustained; but the case itself is in direct opposition to the whole current of the English and most of the American cases. 1 Amer. Lead. Cas. (4th ed.) 262. In Burley v. Russell, 10 N. H. 184, it was admitted that such an affirmation as in Fitts v. Hall would not estop an infant so as to render him liable on the contract; and the same decision was made in Merriam v. Cunningham, 11 Cush. 40. This doctririe implies as a logical sequence that the avoidance of a contract induced by such a representation is the legal right of the infant, and not a fraud. The case of West v. Moore, udi supra, which was decided in this Court nearly four years after the decision of the case ef Fitts v. Hall, proceeds in this respect on the same ground with Burley v. Russell, ubi supra; and there is no appar- ent difference in principle between a falsehood expressed in words and the same falsehood properly inferred from actions, demeanor, or silence. Both are equally fraudulent, and the damage resulting from the one would be as great as from the other. The allegation of concealment would not, therefore, dis- tinguish this case from one in which the falsehood was distinctly affirmed in words; and the plaintiff’s cause of action in this case derives no additional strength from his offer to return the property. GILSON v. SPEAR. 205 The refusal of the defendant to return the price of the prop- erty was not a disaffirmance or avoidance of the contract by him; and unless he had the money in his possession, so that he could restore it to the plaintiff when the horse was tendered back to him, no action of trover for it could be sustained against him. This was held in the case of Fitts v. Hall. We think that the fair result of the American as well as of the English cases is, that an infant is liable in an action ex delicto for an actual and wilful fraud only in cases in which the form of action does not suppose that a contract has existed; but that, where the grava- men of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defence. For simple deceit on a contract of sale or exchange, there is no cause of action, unless some damage or injury results from it; and proof of damage could not be made without referring to and proving the contract. An action on the case for deceit on a sale is an affirmance by the plaintiff of the contract of sale ; and the liability of the defendant in such an action could not be established with- out taking notice of and proving the contract. It was held by this Court in West v. Moore, ubi supra, that the deceit or fraud to charge an infant must be wholly tortious; and that, if the matter arises from contract, although infected with fraud, it cannot be turned into a tort to charge him by a change in the form of action; and this principle fully sustains the defence of infancy in this action. We think that there is no greater liability for deceit resulting from the fraudulent concealment by an infant of a material fact, than there is for his false and fraudulent affirmation in respect to the same fact; and if the recognized rule of law by which our judgment is controlled is wrong, it should be changed by statute, as it has been changed in some other States. Code of Towa, 1851, p. 224, § 1489;! Compiled Laws of Kansas, 1862, 1 Sec. 2541 of Revision of 1860. Under this section, it is held that suit may be brought and judgment rendered against a minor during his minority, in cases where, on account of the minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the orher party had good reason to believe the minor capable of contracting. Oswald v. Broderick, 1 Clarke (Iowa), 880. See also Prouty v. Edgar, 6 Clarke (Iowa), 872. But to render an infant who engages in business, and thus holds himself out as capable of contracting, liable under this section (2541), his infancy must have been unknown to the party contracting with 206 INFANCY. p- 720, c. 146, § 8. It was well said by Grsson, C. J., in Wilt v. Welsh, ui supra, that, “in contemplation of law, an infant of three years is not inferior in discretion to one of twenty ;” and it is to be remembered, that no general principle of policy can be established without being the occasion of hardship or in- justice in particular cases. Judgment of the County Court for the defendant on demurrer to the defendant's plea affirmed. It is well settled that an infant is liable for his pure torts + which do not arise from the breach of, and are dis- connected from, his contracts. 2 Kent's Com. 241; Bing. on Inf. 110; Reeve’s Dom. Rel. * 258; Benj. on Sales, § 22, note (i), where the cases are fully col- lected; 1 Am. Lead. Cas. (4th ed.) 261; 1 Chit. Pl. *76; Bigelow on Es- toppel, 492; Conklin v. Thompson, 29 Barb. 218; Gilson v. Spear, 38 Vt. 620; School District v. Bragdon, 23 N. H. 516; Huchting v. Engel, 17 Wisc. 230, where an infant under seven years of age was held liable in trespass for compensatory damages, for breaking down and destroying shrubbery, flow- ers, &c. Reeve’s Dom. Rel. * 258-9. But the only tortious acts for which an infant can be made responsible are those committed by himself, or under his immediate inspection and express direction, and not those committed by persons assuming to act under his im- plied authority. He cannot legally create an agent. Robbins v. Mount, 4 Rob. (N. Y.) 553, s. c. 33 How. Pr. 24. %It seems that he cannot be made a trespasser by prior or subse- quent assent.? Co. Litt. 180 0, note 812; Chandler v. Commonwealth, 4 Met. (Ky.) 68; 37 Tex. 407; 59 Il. 52. Thus an infant is liable for a tres- pass, an assault and battery, slander, &c., though not for slander, till doli capax. Bullock v. Babcock, 3 Wend. -891; Hartfield ». Roper, 21 Wend. him. If known to him, the statute creates no shield to the contract. Beller v. Mar- chant, 30 Iowa, 350. The statute referred to reads thus :— “See. 2540. A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party the money or property received by him by virtue of the contract, and remaining within his control at any time after his attaining his majority. “ Sec. 2541. No contract can be thus disaffirmed in cases where, on account of the minor’s own misrepresentations as to his majority (a), or, from his having engaged in business as an adult, the other party had good reason to believe the minor capable of contracting.” 1 But an infant is not bound by a note given by him in pursuance of an award, though the matter submitted was a tort committed by the infant. Hanks v. Deal, 8 McCord, 257. Nor by a note given in direct settlement for a tort. Shaw v. Coffin, 68 Me. 256. ? Nor is an infant liable for the malicious prosecution of a suit during his infancy, in his name by his next friend, which was brought without his knowledge or author- ity, even if he expressly assented to it after he had knowledge of it. Burnham v. Seaverns, 101 Mass. 860. See also 1 Chit. Pl. *76; Bing. on Inf. 111. But an infant (a) Substantially this proposition, irrespective of statute, is stated to be the law in Kilgore v. Jordan, 17 Tex. 865. XN GILSON v. SPEAR. 4; 1 Chitty Pl. *76; Bing. on Inf. 111; Fitz. N. B. 179 6; Bac. Abr. Inf. H. In Sikes »v. Johnson, 16 Mass. 389, it was held, however, that an infant is liable in trespass, even though the tres- pass is constructive; as by procuring another to commit an assault and bat- tery. See also Tyler on Inf. 183. So an infant is liable in case, or tres- pass quare clausum, though the tortious act was committed by the express com- mand of the father. Scott v. Watson, 46 Me. 362; Humphrey v. Douglass, 10 Vt. 71. So in Wallace v. Morss, 5 Hill, 391, it was held that an infant is chargeable by action for a tort in obtaining goods fraudulently, with an intention not to pay for them. So in trover for the conversion’ of goods and chattels. Walker v. Davis, 1 Gray, 506; Towne v. Wiley, 23 Vt. 355; Green v. Sperry, 16 Vt. 390; Baxter v. Bush, 29 Vt. 465; Lewis v. Littlefield, 15 Me. 233. See the sub- ject of trover considered further, infra. So in detinue for the wrongful deten- tion and conversion of property. Oliver v. McClellan, 21 Ala. 677; Mills v. Graham, 1 Bos. & P. N. R. 140. So in ejectment, disseisin being a tort. McCoon v. Smith, 3 Hill, 147 (post) ; Marshall v. Wing, 50 Me. 62; Beckley v. Newcomb, 24 N. H. 363. There is no difficulty where the action clearly sounds in or is founded upon contract, the infant in such case not being liable; nor, on the other hand, where the act is wholly tortious and in no wise connected with nor oc- casioned by a contract. And where, though a contract may have furnished the occasion for commit- ting the tort, yet the tort is entirely disconnected therefrom, or outside 207 thereof, so that a cause of action may be made out without the plaintiff's being obliged to set up and prove the ‘contract as an essential part of his case, — the contract being mere matter of in- ducement, and the tort the substantive cause of action, — there would seem to be no objection to holding the infant liable. The rule is thus stated in 1 Am. Lead. Cas. (4th ed.) 262: ‘‘ The test of an action against an infant is, whether a liability can be made out without taking notice of the contract.” The difficulty lies in drawing the line of distinction between the two classes of cases above mentioned. In Jennings v. Rundall, 8 Term, 335 (ante p. 185), the first count of the dec- laration stated that the plaintiff, at the request of defendant, delivered to hima certain mare to be moderately ridden by defendant; yet the defendant, con- triving and maliciously intending to injure the plaintiff, &c., wrongfully and injuriously rode, used, and worked the mare, in so immoderate, excessive, and improper a manner, &c., that the mare became greatly strained, damaged, &c. The second count alleges a letting to go and perform a certain reasonable and moderate journey, and that the defend- ant wrongfully, &c., rode and worked the mare a much longer journey, &c. There was also a count in trover. To a plea of infancy to the first two counts, the plaintiff demurred.- The Court held the action to be founded upon a contract, and not sustainable. See also Moore v. Eastman, 1 Hun, 578, s. c. 4 N. Y. Supreme Ct. 37; Schenk v. Strong, 1 South. 87. It will be ob- served that the injury complained of consisted mainly of an excessive, &e., use in the same line as the original bailment; and the attention of the Court does not seem to have been may be liable for prosecuting, after arriving at majority, a suit commenced by him maliciously, and without probable cause, while an infant. Sterling v. Adams, 3 Day, 411, 1 But it is said, in Root v. Stevenson, 24 Ind. 115, that, in an action for conversion, infancy is a protection for a mere non-feasance. 208 directed to the question, whether proof of part of the allegations in the second count might not have sustained a count in trover. See the case commented on and criticised in Fitts v. Hall (infra), and Woodman v. Hubbard, 25 N. H. 78, where a voluntary driving by an adult beyond the place for which the horse was let to be driven, was held to constitute a conversion. See also Wentworth v. McDuffie, 48 N. H. 406; Eaton v. Hill, 50 N. H. 238 (post). In Homer v. Thwing, 3 Pick. 492 (ante), (approved in Woodman v. Hub- bard, 25 N. H. 73); and in Towne v. Wiley, 23 Vt. 355, both of which were actions of trover, the same rule was applied to the case of an infant; and in the latter case the Court say: ‘So long as the defendant kept within the terms of his bailment, his infancy was a protection to him, whether he neg- lected to take proper care of the horse or to drive him moderately. But when he departs from the object of the bail- ment, it amounts toa conversion of the property, and he is liable as much as if he had taken the horse in the first in- stance without permission.”’ See also 1 Pars. on Cont. (5th ed.) 316; dictum in Green v. Sperry, 16 Vt. 393; Fish v. Ferris, 5 Duer, 49. Also, Burnard v. Haggis, 14 C. B. n. 8. 45; Hall ». Corcoran, 107 Mass. 251; Campbell v. Stakes, 2 Wend. 187, where it was held that where an infant took a mare on hire, and drove her with such vio- lence, and otherwise so cruelly treated her, that she died, trespass lay, though it was said case did not lie. In their opinion the Court say: ‘‘ But if an in- fant does any wilful and positive act which amounts to an election on his part to disaftirm the contract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not protect him.” Citing Vasse v. Smith, 6 Cranch, 226. See also Moore v. Eastman, 1 INFANCY. Hun, 578, s.c. 4 N. Y. Supreme Ct. 37; 2 Kent’s Com. 241; Story on Sales (4th ed.), § 28, note (3); Bing. on Inf. (Bennett’s ed.) 111, note (5); Lewis v. Littlefield, 15 Me. 235; Fitts v. Hall (infra). _ “Acts, however aggravated, which merely establish a breach of the con- tract on the part of the infant, mani- festly are insufficient” to render the infant liable in trespass. Moore v. Eastman (supra). Penrose v. Curren, 3 Rawle, 351 (ante, p. 191), which was an action on the case, is an authority to the contrary of Homer v. Thwing, and in which Rog- ERs, J., says that the case of Homer v. Thwing is not distinguishable from Jen- nings v. Rundall. See, to the same point, Wilt v. Welsh, 6 Watts, 9 (which was an action of trover), in which Campbell v. Stakes is denied. See also 1 Am. Lead. Cas. (4th ed.) 262, 263 (infra) ; Schenk v. Strong, 4 N. J. L. 87. In Lewis v. Littlefield, 15 Me. 236, itewas said by SHrpiey, J., that ‘*‘ What amounts to proof of conversion has oc- casioned the difference between the Courts of Massachusetts and Pennsyl- vania.”’ And though perhaps in the cases in Massachusetts and Vermont, and the cases approving them, the principle is extended to its utmost limit, yet ‘‘ it seems difficult to see, if such an act is a conversion in an adult, why it is not equally so when done by an infant;” and it seems equally difficult to see why what amounts to proof of a conversion by an adult should not be equally so in the case of an infant of years of dis- cretion. See Bing. on Inf. (Bennett’s ed.) 111, note (5). The weight of authority seems to support the rule laid down in Homer v. Thwing. As to the form of action to be em- ployed, in Bristow v. Eastman, 1 Esp. 172, s. c. Peake’s Cas. 223, which was an action for money had and received, brought against an infant, to recover money which he had embezzled, Lord Kenyon said, ‘‘ That he was of opin- GILSON v. SPEAR, ion that infancy was no defence to the action; that infants were liable to actions ex delicto, though not ex con- tractu, and, though the present action was in its form an action of the latter description, yet it was of the former in point of substance; that, if the as- signees had brought an action of trover for any part of the property embezzled, or an action grounded on the fraud, that unquestionably infancy would have been no defence; and, as the object of the present action was precisely the same, that his opinion was that the same rule of law should apply, and that in- fancy was no bar to the action.” This doctrine is approved in Reeve’s Dom. Rel. * 245-6; 2 Greenl. Ev. § 368; 1 Story on Cont. (4th ed.) § 65. The same point was decided in El- well v. Martin, 32 Vt. 217; Shaw ». Coffin, 58 Me. 254. See also Towne v. Wiley, 23 Vt. 359; Oliver v. Me- Clellan, 21 Ala. 675; Penrose v. Cur- ren, 3 Rawle, 353; Word v. Vance, Nott & McCord, 197; Peigne v. Sut- clife, 4 McCord, 387. The rule above stated, though per- haps supported by the weight of au- thority, is at best anomalous, and, as it seems, out of harmony with established legal principles. See Met. on Cont. 54, 55. ‘ The learned editor of the American Leading Cases, in Vol. 1, page 261 et seq. (4th ed.), uses the following lan- guage: ‘‘ But as to the mode of avoid- ing the liability ex contractu, when urged in the form of an action ex delicto, some distinctions exist in consequence of differences of pleading. In an action on the case, the declaration shows upon its face that the tort is merely constructive, being in effect but a breach of contract; the action, there- fore, cannot be maintained at all, after the fact of infancy appears; in other words, a plea of infancy is a bar, and 1 Citing Vasse v. Smith, 6 Cranch, 226 ; bell v. Stakes, 2 Wend. 188. 209 evidence of infancy, under the general issue, a conclusive defence. It has been determined, therefore, that an action on the case against an infant, for injuries done negligently or wrongfully to goods entrusted to him under any kind of bailment,' or for fraud or warranty on a sale,? will not lie. ‘« In trover, the nature of the liability does not appear from the declaration ; and it cannot be told whether the action is brought for a pure tort or such merely constructive conversion as consists only in a breach of contract. In trover, therefore, infancy cannot, as a special plea, be a bar, nor be a con- clusive defence under the general issue; but it may be given in evidence upon the question whether the alleged act be, in the case of an infant, a conversion or not. This is the satisfactory princi- ple established in Vasse v. Smith; and it gives the infant, through another channel, the full benefit of his legal protection. For the evidence is to be applied in accordance with the general principle above stated; that is to say, a mere breach of contract — such as, in case of hiring, going elsewhere or fur- ther than the agreement allowed—is not an actionable conversion in an infant; but an actual and wilful conversion, totally unconnected with the contract,— such as a destruction of the property, or a refusal to deliver on demand when it is in his possession, —is an actionable tort in trover; the test still being whether a conversion is made out with- out calling the contract in aid. ‘In regard to trespass, where there has been a possession by the infant under a contract, as the declaration takes no notice of any contract, the action will always lie against an infant : but, as trespass is an injury to posses- sion, it will not lie against either adult or infant where there has been a bail- ment, unless the bailee has determined Schenks v. Strong, 1 South. 87; Camp- 2 See cases cited at beginning of this note. 14 210 his legal possession by some violent act done to the property ; but, if he has so determined it, and has in law commit- ted a trespass upon the property, the INFANCY. but that, where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defence.” Where the form of the action nec- essarily supposes the existence of a contract as a subsisting obligation or liability on the part of the infant, and as an essential part of the plaintiff's case, there would seem to be no doubt that the infant is not liable. But it is held in Eaton v. Hill. 50 N. H. 235,) that an action upon the case will lie infant is Hable for it, notwithstanding the contract. Campbell v. Stakes, 2 Wendl. 138, 143.” The rule is laid down in the princi- pal case of Gilson v. Spears, ‘‘ That an infant is liable in an action ex delicto for an actual and wilful fraud, only in cases in which the form of action does not suppose that a contract existed ; 1 In this case the authorities are well collected and collated, and it is deemed of sufficient importance to be given in full, omitting only arguments of counsel. Case, by Eaton & Whittemore v, Charles E. Hill & Dana Cummings. The decla- ration and plea of Charles i. Hill make part of the case, and to the plea the plaintiffs demurred generally. Declaration. “Ina plea of the case for that the said defend- ants, on the twenty-fourth day of June, 1870, at Manchester aforesaid, in the county aforesaid, hired of the said Eaton & Whittemore a certain horse and carriage, to ride from said Manchester to said Nashua, for a certain price; and the said Eaton & Whit- temore delivered to the said defendants the said horse and carriage for that purpose. Yet the defendants so carelessly and immoderately drove said horse, that by means thereof the said horse, on the said twenty-fourth day of June, 1870, at Nashua afore- said, died.” Plea. ‘And the said Charles E. Hill, who is under the age of twenty-one years, by Charles R. Morrison, his guardian, who is admitted by the Court to defend for him, comes and defends, &c., when, &c.; and says, that at the time of the letting, careless and immoderate driving and death of the horse therefrom, in said declaration mentioned, the said Charles EK. Hill was under twenty-one years of age, — to wit, was of the age of eighteen years, and no more, and this he is ready to verify. Wherefore he prays judgment, if the plaintiffs their action aforesaid ought to have or maintain against him, and for his costs,” &c. Clark and Huse, for plaintiffs. C. R. Morrison, for Hill. Bettows, C.J. The substance of the declaration is, that the defendant, having hired the plaintiff’s horse for a short journey, drove him so carelessly and immoder- ately as to cause his death. No promise is alleged to drive him moderately and with due care; but the plaintiffs put their case upon the ground of a breach of duty by the defendant, and the doing of a tortious act, and the question is whether a minor is liable in such case. On this point the authorities are not altogether harmonious. In Fitts v. Hall, 9 N. H. 441, the cases were examined, and this principle deduced from them, in the opinion by Parker, C. J., that, “if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract, by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable’ In that case it was decided that an infant was liable for deceit in falsely representing himself to be of age, and thereby inducing the plaintiff to sell him goods on credit, and afterwards avoiding his promise to pay by pleading infancy. The general doctrine of Fitts v. Hall is fully approved in Prescott v. Norris, 32 N. H. 108, per Pervey, C. J., and is supported by the reasoning of the Court in Woodman GILSON ¥v. SPEAR. 211 against an infant bailee for his positive is injured or destroyed; but in such tortious act, by which the thing bailed case the character of the act should be v. Hubbard, 25 N. H. 67, 78. Indeed, it would seem to be too clear to admit of con- troversy, that an infant bailee must be liable for the injury or destruction of the thing bailed, by his positive, wilful, and tortious act, even although it was part of the contract, express or implied, that tle goods should be safely returned. As if, in the case of the bailment of a horse, he wilfully beat him to death, or wilfully drove him so immoderately as to endanger his life, and knowing that he did so, and actually causing his death. Such acts, indeed, would be wholly unauthorized by the contract of bailment ; and in respect to them the infant would stand as if no such contract existed. So that an action of trover might be maintained against him on the ground that the bailment was thereby determined. Wentworth v. McDuffee, 48 N. H. 402. It does not follow from this that, for every case of immoderate driving for which an adult would be liable, an infant bailee would also he liable. The bailee in these cases is understood to stipulate for ordinary care and skill in the use of an animal so bailed; and for any injury caused by the want of it, he is liable. In the case of the infant, however, his promise to use due care and skill does not bind him; but he is still liable for positive, tortious acts, wilfully committed, whereby the thing bailed is injured or destroyed. If, through want of skill and experience, the animal is unin- tentionally injured by the infant, it might well be contended that he would not be liable, because he has made no binding promise to exercise such skill. There are eases which hold that an infant who hires a horse for a journey is not liable for an injury caused by immoderate driving. The case of Jennings v. Rundall, 8 T. R. 835, is of this character; and the Court held that the course of action arose out of a contract, and that the infant could not be made liable by changing the form of action to tort. This case is criticised and doubted by Parker, C. J., in Fitts v. Hall, upon the ground that Lord Kenyon seemed to regard the injury as resulting from an accident, without adverting to that part of the declaration which might, with proper proof, have made a case of conversion. It is very true that Lord Kenyon, in his opinion, assumes that the injury to the horse was accidental; although the declara- tion alleges that the defendant wrongfully drove the mare immoderately, and so caused the injury. The other judges also assume that the cause of action was sub- stantially a breach of contract; and, if this were so, the decision was clearly right, vand would not conflict with the doctrine of Fitts v. Hall. There are other authorities that accord with Jennings v. Rundall. See 1 Am. Lead. Cases, 4th ed. 261-263, and cases cited. In Schenk v. Strong, 1 South. 87, infancy was held to be a good bar to an action on the case alleging that a chair was lent to defendant for a particu- lar journey, to be used carefully, and returned at a specified time; yet that he went on a different journey, carelessly broke it, and did not return it at the time agreed, thereby violating his engagement in every particular. In all respects, except the going « different journey, this has the character of a mere breach of contract, for which the infant cannot be made liable by changing the form of action. The using the chair for a different journey was not a mere breach of contract, but a positive tortious act, for which the infant was liable in some proper form of action. Homer v. Thwing, 8 Pick. 492; Towne et al. v. Wiley, 23 Vt. 353. In such cases the infant stands like an adult, and is liable on the ground that using the thing bailed for another purpose is a conversion. In such case an adult is clearly liable. Woodman ve. Hubbard, 25 N. H. 72, where it was held by Perey, J., that driving a horse to a place beyond the limits fur which he was hired, was a wrongful invasion of the plain- tiff’s right of property, and not a mere breach of contract; and the case Homer v. Thwing is cited and approved. The judge says that this case and Vasse v. Smith, 212 INFANCY. stated in the declaration, that it might to a disaffirmance of the contract of be seen to be such a tort as amounted bailment. See also Peigne v. Sutelife, 6 Cranch, 281; Campbell v. Stakes, 2 Wend. 137, and Mills v. Graham, 1 Bos. & P. N. R. 140, are strong authorities to the point that an infant who receives goods on a contract, and disposes of the property without right, is liable in trover. In Mills v. Graham, 1 Bos. & P. N. R. 140, it was held that an infant who had received of the plaintiff skins to be dressed and returned, was liable in trover for refusing to return them on demand. In Parsons on Cont. 264, it was laid down that, for a tort or fraud which is a mere breach of his contract, an infant is not liable; but where the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable: as, if he hires a horse for an unnecessary ride, he is not liable for the hire; but if, in the course of the ride, he wilfully abuses and injures the horse, he is liable for the tort; and if he should sell the horse, trover would lie. In 2 Greenl. Ev. § 368, it is laid down, that an infant bailee of a horse is not liable for treating him negligently, or riding him immoderately ; but is liable if he goes to a different place, or beats the animal to death. In Campbell v. Stakes, 2 Wend. 137, it was held that, ifan infant who has hired a horse wilfully and intentionally injures the animal, trespass will lie against him, or if he does any wilful or positive act which amounts to a disaffirmance of the contract; but if he neglect to use him with ordinary care, or to return him at the time agreed on, he is not liable. This case is cited with appro- bation in Fitts v. Hall. Campbell v. Stakes was an action of trespass ; and the Court held that infancy, with an averment that the injury occurred in driving the horse through the unskilfulness and want of knowledge, discretion, and judgment of the defendant, was a good plea. In Towne et al. v. Wiley, 23 Vt. 859, the doctrine is said to be that infants are held liable for positive and substantial torts, but not for violations of contracts merely, although by the rules of pleading a plaintiff might declare in tort or contract at his election; and in this case Judge REDFIELD» indorses the doctrine of Fitts v. Hall. We think, then, that the doctrine is well established that an infant bailee of a horse is liable for any positive and wilful tort done to the animal distinct from a mere breach of contract, — as, by driving to a place other than the one for which he is hired, refusing to return him on demand after the time has expired, wilfully beating him to death, and the like; so if he wilfully and intention- ally drive him at such an immoderate speed as to seriously endanger his life, know- ing that it will doso. In Wentworth v. McDuffee, 48 N. H. 402, such driving by an adult was held to te a conversion; and, for aught we can see, the same principle would apply to the case of an infant. In all these cases it may be urged that the law implies a promise, on the part of the bailee, to drive the horse only to the appointed place, to return him at the end of the journey, not to abuse him or drive him immod- erately; and that a failure in either respect is merely a breach of contract. So it might be said that the law would raise a promise not to kill him; and yet no one would fail to see that to kill him wilfully would be a positive act of trespass, for which an infant should be liable the same as if there were no contract. Between acts that are to be regarded as mere breaches of the contract of bailment and positive and wil- ful torts, a line must be drawn somewhere; and although it must often be difficult to discriminate between them, we think it is safe to hold that the acts we have named, and others of a like character, are positive torts for which an infant is liable, and not mere breaches of contract. When the infant stipulates for ordinary skill and care in the use of the thing bailed, but fails for want of skill and experience, and not from any wrongful intent, it is in accordance with the policy of the law that his priv- ilege, based upon his want of capacity to make and fully understand such contracts, should shield him. A failure, in such a case, from mere want of ordinary care or GILSON v. SPEAR. 213 4 McCord, 387; Bristow v. Eastman, In Mathews v. Cowan, 59 III. 341; and cases cited (ante). and Densmore »v. Cowan, 59 IIL 347, skill, might well be regarded as in'substance a breach of contract for which the infant is not liable, even although in ordinary cases an action ex delicto might be sustained. But when, on the other hand, the infant wholly departs from his character of bailee, and by some positive act wilfully destroys or injures the thing bailed, the act is in its nature essentially a tort, the same as if there had been no bailment, even if assumpsit might be maintained in the case of an adult, or a promise to return the thing safely. In the case before us, the declaration embraces a charge of immoderate driving, whereby the plaintiff’s horse was killed ; and, as we have seen, the proof might be such, under a proper declaration, as to charge the infant; and it might be such as to show that the immoderate driving was unintentional, and wholly owing to want of experience and discretion, in which case he would not be liable. The question then is, whether an action on the case, as this is, can be maintained for any cause of action that may be proved under this declaration. If it can be, the demurrer must Le sus- tained. In some cases it is held, that by a positive and wilful tort the bailment is determined, and the remedy must be by action of trespass or trover, and that case will not lie. Such is the doctrine of Campbell v. Stakes, before cited ; and the Court put it upon the ground that the action on the case necessarily supposes the defendant to have a right to the possession off the property, under the contract of hiring, at the time the injury was committed, and that by declaring in case the plaintiff affirms the existence of such contract, and the plea of infancy would be a good defence to such action, — citing Jennings v. Rundall, 8 T. R. 885, and Green v. Greenbank, 2 Mar- shall, 485; 4 Eng. Com. Law, 375. ‘To the correctness of this view we are unable to subscribe. Ifa wrong has been done to the property bailed, of such a nature that an action on the case would ordinarily be an appropriate remedy, and at the same time an infant would be liable for it in any form of action, we perceive no reason for hold- ing that case would not lie against him. If the declaration sets out a cause of action which is good against an infant bailee, by reason of its being a positive and wilful wrong, and not a mere breach of contract, and at the same time, according to the rules of pleading, an action on the case appears to be the appropriate remedy, we think it clear that such an action would be maintained. If it were necessary that the bail- ment should be determined in order to maintain the action, the facts stated would show it, the same as it would be shown by stating a conversion in trover. In many cases trespass or trover will lie for injuries done by bailees, and to maintain those suits the bailment must have been determined; and this is shown by proof of tor- tious acts inconsistent with the bailment, and, from the bringing of these suits, it may fairly be inferred that the plaintiff elects to consider the bailment at an end. In bringing an action on the case setting out such a positive and wilful tort as is wholly inconsistent with the contract of bailment, and amounts to a disaffirmance of it, the ‘same inference may be made. In all these cases the actions are based upon acts which disaffirm the contract of bailment, and the bringing the suits is an election by the bailor to consider the bailment terminated ; and this appliés to an action on the case for a tort which disaffirms the contract, the same as to trespass or trover; the latter is indeed but a subdivision of actions upon the case. We are brought then to the conclusion, that case will lie against an infant bailee for a positive and wilful tort of such a nature that, upon general principles of pleading, case is a proper remedy. Whether such a cause of action exists here, remains to be seen. ‘The declaration does not state such a course. It states a bailment of the horse to defendant, and that he drove him so carelessly and immoderately as to cause his death. This we think does not go far enough to charge an infant bailee. It indeed goes no farther than to charge him with what is in substance a breach of contract, 214 (note), the fraud arose in carrying a con- tract into execution. The minor, in those cases, made a purchase of chat- tels, to be paid for in cash, on delivery ; and procured their delivery by drawing a check on a bank where he had no funds, and which he had no reason to believe wonld honor his check, and ap- propriated the chattels to his own use ; held, that this was a fraud for which he was liable in case or in trover for the conversion of the chattels. And in such a case, without refer- ence to intentional fraud, the sale being for cash, and the defendant appropri- ating the chattels to his own use with- out paying therefor, and without a waiver by the vendor of the condition of payment, trover lies for the conver- sion of such chattels. Id. “Tf the tort or fraud of an infant arises from a breach of his contract, although he may have been guilty of false representations or conccalments respecting the subject-matter of the contract, he cannot be charged for a and to that the plea of infancy is a good defence. INFANCY. breach of his contract by changing the form of the action.” He is not liable where a contract is the substantial ground of action. See Fitts v. Hall, 9 N. H. 441; Prescott v. Norris, 32 N. H. 103; Eaton v. Hill, 50 N. H. 237; Moore v. Eastman, 1 Hun, 578; People v. Kendall, 25 Wend. 401; Munger v. Hess, 28 Barb. 75; Wilt v. Welsh, 6 Watts, 9; Schenk ». Strong, 1 South. 87; Jennings v. Rundall, 8 Term. 335; Lewis »v. Littlefield, 15 Me. 235; 1 Pars. on Cont. (5th ed.) 316; 2 Kent’s Com. 241. Thus, infancy is a good defence to an action on the case (as well as an action on the contract), for deceit and false warranty in the ‘sale of goods.! Brown v. Dunham, 1 Root, 272; Green v. Greenbank, 2 C. Marsh. 485; Gilson v. Spear, 38 Vt. 311 (supra), and cases cited; Fitts v. Hall, 9 N. H. 441; Pres- cott v. Norris, 82 N. H. 101; Morrill v. Aden, 19 Vt. 505; West v. More, 14 Vt. 447.2 See also Geer v. Hovy, 1 Root, 179. In this respect it comes within the principle of Jennings v. Rundall, 8 T. R. 335, before cited. It is true that the immoderate driving may have been a positive and wilful act, so as to make the infant liable; but we think that, unless it is so stated, the plea of infancy is a good defence. If the facts will justify it, the plaintiffs may have leave to amend their declaration upon terms which will be the costs of demurrer. Whether the facts will justify such an amendment of the count in case as will support it, remains to be seen. That a count in case might under some circumstances be the appropriate remedy, may be inferred from the case of Gilson v. Fisk, 8 N. H. 404, and the cases cited, as well as the case of Waterman v. Hall, 17 Vt. 128, and numerous cases where it is held that a party may, at his election, sue in trespass, or waive the trespass and sue in case. Under some circumstances trover would lie, as we have seen; and as case and trover may be joined, there would seem to be no objection to adding a count in trover by way of amendment, if the identity of the cause of action would be pre- served. As it now stands, the conclusion is, the Demurrer must be overruled. 1 But the infant must either affirm or avoid the whole contract; and if he choose to affirm it after he arrives at his majority, by bringing an action upon the notes given upon consideration of the sale, he cannot upon his plea of infancy preclude the defendant from taking advantage of the false warranty, in any proper manner as a defence. Morrill vy. Aden (supra). 2 The opposing case of Word v. Vance, 1 Nott & McCord, 197, is contrary to the great weight of authority, both English and American. See also, however, dicta in Norris v. Wait, 2 Rich. 151, and Evans v. Terry, 1 Brev. 80, where two of the Court were of the opinion that the plaintiff might maintain an action for the deceit practised on her by the defendant, a minor, in the breach of his promise of marriage, — an opinion, however, which would seem to be entirely incorrect. GILSON v. SPEAR. 215 So far the cases seem mostly to but by which the other party is induced agree; but here they begin to diverge, to enter into one with him, if he after- a few cases holding that an infant is wards avoids the contract by reason of answerable for a fraudulent representa- his infancy; as in Fitts v. Hall, 9 N. H. tion and deceit which is not connected 441 (given in full in note,! below), with the subject-matter of the contract, where he represented himself to be of 1 Casx. The declaration alleged that, on the 26th day of May, 1880, the plaintiff owned and was possessed of a large quantity of palm-leaf and chip hats; that a con- versation was then had between the parties about the defendant’s purchasing the hats of the plaintiff; that the plaintiff, not knowing whether the defendant was of age, inquired of him whether he was of full age or not ; and that the defendant, well knowing that he was an infant under the age of twenty-one years, and intending to deceive and defraud the plaintiff, falsely and deceitfully represented that he was then of full age ; and that thereupon the plaintiff, confiding in that representation, sold and delivered the hats to the-defendant, on a credit of six months, and took his note therefor, on that time, for the sum of $57. The declaration further set forth that, the note not being paid when due, the plaintiff sued the defendant thereon, and duly entered and prosecuted his action ; that the defendant pleaded, first, the general issue, and, secondly, infancy ; that the plaintiff joined the general issue, and to the plea of infancy replied that the defendant, at the time of giving the note, represented himself to be of full age, &c.; that to this replication there was a demurrer and joinder, and it was considered by the Court that the replication was bad and insufficient ; and there- upon the plaintiff became nonsuit, and the defendant recovered judgment for his costs, taxed at $37.62; and that the defendant, by his said false and deceitful affirmation, obtained possession of said hats, and deceived and defrauded the plaintiff, and has never paid said note, nor redelivered the hats to the plaintiff, nor paid him therefor. There was also a count in trover for the hats. ‘The plaintiff on the trial intro- duced evidence in support of the allegations in the first count. The Court instructed the jury, that, if they were satisfied, from the plaintiff’s evidence, of the truth of the facts set forth in the declaration, they might, for the purpose of this trial, consider the action sustainable in point of law; and that, if they found a verdict for the plaintiff, they might find such an amount as would in- demnify the plaintiff for the loss he had sustained in consequence of the defendant’s false and fraudulent representations. The jury found a verdict for the plaintiff for $128.91; whereupon the defendant moved that the verdict be set aside, and a nonsuit entered. Christie, for the defendant, contended: 1. That all the facts in the first count, if properly stated and proved, were not sufficient in law to entitle the plaintiff to maintain this action. 2 Kent’s Com. 197, and cases cited. 2. That the plaintiff was not at liberty to abandon the contract, and call upon the defendant in an action of tort, in order to charge him; especially as he had attempted to enforce the con- tract after he knew the ground of defence. 3, That, if the plaintiff recovered at all, he ought only to recover the amount of the note, and not the costs and expenses of the suit upon the note. 4. That the count in trover could not be maintained with- out proof of a demand and refusal, as the goods were voluntarily delivered to the defendant by the plaintiff. J. P. Hale, and James Bell, or the plaintiff, cited Com. Dig., Action on the Case for Deceit, A. 10; 2 Kent’s Com. 241; Badger v. Phinney, 15 Mass. 859; Stoolfoos v. Jenkins, 12 Serg. & Rawle, 899 ; Homer v. Thwing, 8 Pick. 493 ; Bristow v. East- man, 1 Esp. 172; Vasse v. Smith, 6 Cranch, 226; Jennings v. Rundall, 8 D.& I 385; Fosdick v. Collins, 1 Stark. 173; 2 Stark. Ev. 849; 2 Wheaton’s Selwyn, 457. Parker, C.J. The general principle applicable to this case is, that an infant is 216 INFANCY. full age, and thereby induced a person in this case was approved by Rep- to sell him goods on credit. The rule rieLp, J., in Towne v. Wiley, 23 Vt. liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds. 2 Kent’s Com. 197; 1 Chitty’s Pl. 65. Thus he is liable in trover, although the gocds converted were in his possession by virtue of a previous contract. Vasse v. Smith, 6 Cranch, 231; Homer v. Thwing, 8 Pick. 492. And in detinue, where he received skins to finish, and afterwards withheld them. Mills v. Gra- ham, 4 Bos. & Pul. 140. And assumpsit for money had and received has been sus- tained against an infant for money embezzled. Bristow v. Eastman, 1 Esp. 172; 8. ¢. Peake, 222. But a matter of contract, or arising ex contractu and properly belonging to that class, is not to be turned into. a tort, in order to charge the infant by a change of the form of action. 2 Kent’s Com. 197. As, for instance, where the plaintiff declared that, having agreed to exchange mares with the defend- ant, the defendant, by falsely warranting his mare to be sound, well knowing her to be unsound, falsely and fraudulently deceived the plaintiff, &c. ; held, that infancy was a good plea in bar. Greenv. Greenbank, 2 Marshall, 485; 4 E. C. L. 875. In Jennings v. Rundall, the plaintiff declared in case, that, at the request of the defendant, he delivered to him a certain mare, to be moderately ridden, and the defendant wrongfully rode her in an immoderate, excessive, and improper manner, and took so little care of her that, by reason thereof, she was strained and damaged ; and, in a second count, alleged that he delivered the mare to the defendant to go and perform a reasonable and moderate journey, and the defendant wrongfully rode and worked her a much longer journey. Ona demurrer to a plea of infancy, the Court considered the action as founded substantially on the contract, and gave judgment for the defendant. Lord Krnyown said: ‘“ The plaintiff let the mare to hire; and in the course of the journey an accident happened, the mare being strained; and the question is, whether this action can be maintained. I am clearly of opinion that it cannot: it is founded on contract. If it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protec- tion which the law affords to infants.” 8 D. & E. 836. It is undoubtedly true, that the substance of all the matter thus alleged in the plaintiff’s declaration, in Jennings v. Rundall, might have been set forth in an action of assumpsit ; and regarding it, as Lord Kenyon did, as an injury resulting from an accident, it would seem to be an attempt to conyert an action founded on contract into a tort. But the attention of the Court does not seem, in the opinion delivered, to have been directed to the ques- tion, whether part of the matter thus alleged might not, upon proper proof, have sustained the count in trover, which was also contained in the declaration, or an action of trespass. It is apparent, from the cases before cited, that an infant may be charged for a tort arising subsequent to a contract, and so far connected with his contract that but for the latter the tort would not have been committed. In Homer v. Thwing, the defendant hired a horse to go to a place agreed on, but went to an- other place, in a different direction ; and he was held liable in trover for an unlawful conversion. And in Campbell v. Stakes, 2 Wend. 137, where an infant took a mare, on hire, and drove her with such violence, and otherwise cruelly used her, that she died, it was held that trespass might be maintained against him; and the judg- ment of the Supreme Court was unanimously confirmed by the Court of Errors. Chancellor WaLworta said: “If the infant does any wilful and positive act, which amounts on his part to an election to disaffirm the contract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not protect him.” The principle to be de- duced from these authorities seems to be, that if the tort or fraud of an infant arises GILSON v. SPEAR. 217 861, though not necessary to the de- v. Morss, 5 Hill, 391; Eckstein ». cision of the case. See also Wallace Frank, 1 Daly, 334; Schunemann v. from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable. Upon this principle, the count in trover, in this case, cannot be supported upon the evidence offered. The goods went into the possession of the defendant by virtue of a contract, which he has avoided by reason of his infancy. The effect of that contract was to authorize him to appropriate the goods to his own use as owner, and to dispose of them at his pleasure. If he has done so by using them, or selling them to third persons, so that he cannot redeliver them, neither his refusal to pay nor a refusal to deliver the goods can be considered as any thing more than a breach of contract. A refusal to pay is a breach of the express contract; and a refusal to return the goods, after he had converted them with the assent of the plaintiff, and when he no longer had it in his power to return them, could be considered as no more than a breach of an implied assumpsit to return the goods, upon request, after he had rescinded the contract by a refusal to pay. Were this otherwise, the law would furnish him no protection against his con- tract, in such case; for by a subsequent demand of the goods, which he had not the power to comply with, he would be made liable for their value in trover, although he could not be charged in assumpsit. It does not appear in this case that there was such a demand; but if one was made, there is no evidence that the defendant, after he denied his liability on the contract, could have complied with it. Still less is there any ground for charging the defendang in trover, because the plaintiff was induced to make the contract, upon which he received the goods, by his misrepre- sentations. The goods were, notwithstanding, received upon a contract; and if the contract had not been rescinded by the defendant, upon the ground of his infancy, there would have been no pretence for an action of trover. His thus rescind- ing it cannot be held, of itself, to be a conversion. If after the defendant in this case had interposed his plea of infancy, and refused to perform the contract, the plaintiff had demanded the hats, and the defendant, having them in his possession, had refused to deliver them, that would have been a wilful, positive wrong of itself, disconnected from the contract; and upon such evidence the count in trover might have been maintained. Where goods were sold to an infant, on a credit, upon his representa- tion that he was of full age, and a plea of infancy was interposed, an action of replevin was sustained against his administrator, after a demand upon him. Badger v. Phinney, 15 Mass. 359. In this latter case, the defence of infancy was made by the administrator of the infant; the demand of the goods was made upon him, and the action sustained against him; but the Court said: “The basis of this con- tract has failed, from the fault, if not the fraud, of the infant; and on that ground the property may ‘be considered as never having passed from, or as having revested in, the plaintiff.” And upon this ground, if the infant, having rescinded his con- tract, withholds the goods purcliased, after a demand which he had power to comply with, there seems to be no good reason why he should not answer in trover, the same as for any other conversion of property lawfully in his possession. 6 Cranch, 231; 4 Bos. & Pul. 140, before cited. The next question is, whether this action can be maintained against the defendant, for the fraudulent representation that he was of age, by reason of which the plaintiff was induced to sell him the hats, on a credit, and to take his note. An action may be maintained for false and fraudulent repre- 218 INFANCY. Paradise, 46 How. Pr. 426; Man- on Sales (4th ed.), § 28, note (3); 1 ning v. Johnson, 26 Ala. 453; Story Pars. on Cont. (Sth ed.) 317, note. sentations, in order to induce a party to sell, and whereby he was induced to sell, goods to one of the defendants, on a credit. Livermore v. Herschell, 38 Pick. 33, 86. But Jolnson v. Pie, 1 Lev. 169, was ‘case, for that the defendant, being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him 100/., and so he had cheated the plaintiff by this false affirmation.” After verdict for the plaintiff, it was moved in arrest of judgment that the action would not lie for this false affirmation, but the plaintiff ought to have informed himself by others. “ Kelynge and Windham held, that the action did not lie, because the affirma- tion, being by an infant, was void; and it is not like to trespass, felony, &c., for there isa fact done. Zwysden doubted, for that infants are chargeable for trespass. Dyer, 105. And so, if he cheat with false dice, &c.”” The report in Levinz states that the case was adjourned ; but in a note, referring to 1 Keb. 905, 913, it is stated that judgment was arrested. If this case be sound, the present action cannot be sus- tained on the first count. From a reference in the margin, it seems that the same case is reported, 1 Sid. 258. Chief Baron Comyns, however, who is himself regarded as high authority, seems to have taken no notice of this case in his Digest, Action on the Case for Deceit; but lays down the rule that, “If a man affirms himself of full age when he is an infant, and thereby procures money to be lent to him upon mortgage,” he is liable for the deceit; for which he cites 1 Sid. 188; Com. Dig., Action, &c., A. 10. We are of opinion that this is the true principle. If infancy is not permitted to protect fraudulent acts, and infants are liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds (2 Kent, 197), as for slander (Hodsman v. Grissel, Noy, 129) and goods converted (auth. ante), there is no sound reason that occurg to us why an infant should not be charge- able in damages, for a fraudulent misrepresentation whereby another has received damage. In the argument of Johnson v. Pie, Grove and Nevill’s case was cited, “where, in case against an infant for selling a false jewel, affirming it to be a true one, ’twas adjudged the action did not lie;”? and the case seems to have been con- sidered as if the affirmation that he was of age was to be regarded as part of the contract. But there is a wide difference between the two cases. In Grove and Nevill’s case, the subject-matter of the contract was the jewel which was sold. The affirma- tion that it was a true one was a false warranty of the article sold. If the defend- ant had been of age, assumpsit might have been maintained. The infant was not to be charged by adopting a different form of action. But the representation in Johnson v. Pie, and in the present case, that the defendant was of full age, was not part of the contract, nor did it grow out of the contract, or in any way result from it. It is not any part of its terms, nor was it the consideration upon which the contract was founded. No contract was made about the defendant’s age. The sale of the goods was not a consideration for this affirmation or representation. The representation was not a foundation for an action of assumpsit. The matter arises purely ex delicto. The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the hats; but that by no means makes it part and parcel of the contract. It was antecedent to the contract; and if an infant is liable for a positive wrong connected with a contract, but arising after the contract has been made, he may well be answerable for one committed before the contract was entered into, although it may have led to the contract. It has been said that “all the infants in England might be ruined,” if infants were bound by acts that sound in deceit. But this cannot be a reason why the action should not be maintained for fraudulent wrongs done ; for the same reason would seem to apply equally well in GILSON Uv. SPEAR. But in the subsequent case of Gilson v. Spear, 88 Vt. 311 (supra), the rule was condemned as contrary to the weight of authority, both English and American. See also Benj. on Sales, § 22, and note (¢), where the cases are fully collected. In a subsequent case in the same Court, Burley v. Russell, 10 N. H. 184, it was held that an infant who has rep- resented himself to be of full age, and thus procured a credit, is not estopped by such representation from setting up 219 his infancy, when sued upon the con- tract, in avoidance thereof, the princi- ple of the case of Fitts v. Iall, from which this was distinguished, applying only to actions on the case for the fraudulent affirmation that he is of age, whereby another is induced to contract with him, and where he afterwards avoids the contract by reason of his infancy, —a distinction which seems rather shadowy, inasmuch as, by thede- cision in the last-named ease, and in the others mentioned in the note below,! cases of slander, trover, and trespass. The latter are as much the results of indis- cretion as the former, and quite as likely to be committed. In Bac. Abr., Infancy, I. 8, it is said : “ Also, it seems, that if an infant, being above the age of discretion, be guilty of any fraud in affirming himself to be of full age, or if, by combination with his guardian, &c., he make any contract or agreement, with an intent afterwards to elude it by reason of his privilege of infancy, that a Court of Equity will deem it good against him according to the circumstances of the fraud.” 8 Gwillim’s Bac. 604. The authorities cited do not seem to state, specifically, the first branch of the proposition in the text ; but there are several cases sustaining the general proposition, that an infant may be bound in equity by a contract which the other party has been induced to enter into by his fraudulent representation or concealment. Lord Teyn- ham v. Webb, 2 Ves. sen. 212; Evroy v. Nicholas, 2 Eq. Cas. Abr. 489, and cases cited; Beckett v. Cordley, 1 Brown, Ch. 858; Fonb. Eq. (4th Am. ed.), 80, note z. At law, he is not bound by the contract, although it was procured by his fraudu- lent representation that he was of full age. Conroe v. Birdsall, 1 Johns. Cas. 127. If in equity the infant may be bound by the contract, because of his fraud in procuring it, he may well at law be answerable for the previous deceit through which it was procured, if he has hereby obtained the property of another, and refuses per- formance on his part. Our conclusion is that the action may be sustained on the first count. But we are of opinion that the plaintiff is not entitled to recover in damages the costs of the action he commenced on the note, or those which he was obliged to pay in that suit. For aught which appears, he knew, when he commenced that action, that the defendant was an infant, and would avail himself of his infancy. If he chose to try an experiment, he must abide the consequences. For this reason the verdict must be set aside, and a New trial granted. 1 To the point that the false and fraudulent declaration of the infant that he is of full age, made at the time of entering into a contract, does not prevent the contract’s © being avoided by him at his election, see also Conroe v. Birdsall, 1 Johns. Cas. 127 ; Price v. Hewitt, 8 Exch. 146, Merriam v. Cunningham, 11 Cush. (Mass.) 40; Norris v. Vance, 8 Rich. (S. C.) 164; Carpenter v. Carpenter, 45 Ind. 142; Bartlett v. Wells, 1 B. & S. (Q. B.) 886; De Roo w. Foster, 12 J. Scott, Nn. s. (12 C. B. N. 8.) 272; Curtin v. Patton, 11 Serg. & R. 309; Stoolfoos v. Jenkins, 12 id. 408; Brown v. McCune, 5 Sandf. (N. Y. Sup’r Ct.) 224. See also Burns v. Hill, 19 Ga. 22; Adelphi Loan Association v. Fairhurst, 9 Exch. 422; Keen v. Coleman, 39 Penn. St. 299. See, however, Seabrook v. Gregg, 2S. C. x. 8. 79, where a different rule is hinted at. So fraudulent representations made by an infant as to his means of pay- ment and the prosperous condition of his business, to induce another to enter into a contract with him, will not give it validity. Studwell v. Shafter, 54 N. Y. 249, But 220 the infant exercised a clear legal right in avoiding the contract; and as the representation in and of itself, discon- nected from any contract, is a simple, bald lie, which (however improper) is not actionable per se, and is only made so by its being followed by the exercise of a clear legal right, viz., that of dis- affirming the contract. Since without the contract there seems to be no cause of action, it seems to follow that the contract is an essential part of the INFANCY. it would seem that the defence of in- fancy is complete. See Benj. on Sales (1 Am. ed.), § 22, note (7). Criminally, an infant of sufficient age to have criminal capacity is as lia- ble as an adult;! so even though the crime arises out of a contract. Thus he is liable, criminally, for obtaining goods by false pretences. People v. Kendall, 25 Wend. 399. As to confessions by an infant, see notes to McCoon v. Smith (infra). cause of action ; and, if such is the case, McCoon v. SMITH. (3 Hill, 147. Supreme Court of New York, July, 1842.) Admissions and Confessions by Infants. may be maintained against an infant. An Infant may confess what he has Capacity to commit. —The capacity of an infant to do an act for which the law renders him liable, presupposes his abil- ity to confess it; and hence, in ejectment against him, after the plaintiff has shown title, the infant’s entry may be established by his admissions. Per Cowen, J. Estoppel of Infants. — But, in ejectment against an infant, though he had ac- knowledged he occupied the premises under the plaintiff, and it was shown, moreover, that he had given his note for the rent, held, nevertheless, that he was not estopped from setting up a title in himself adverse to the plaintiff. Estoppel. — An action of ejectment EsectMEnT, tried at the Washington Circuit, in October, 1841, before WitLarp C. J. The action was brought to recover about though not liable civiliter, an indictment lies in such a case for obtaining goods by false pretences. People v. Kendall, 25 Wend. 899. So the fact that the adult, con- tracting in the course of business with the infant, who was carrying on trade as an adult, did not know of his nonage, is immaterial. Van Winkle v. Ketcham, 3 Caines, 323. So the fact that the infant undertook to trade for himself (Houston v. Cooper, Penning. 866), working at the time apart from his father (Tandy v. Master- ton, 1 Bibb (Ky.), 880), and although holding himself out to the world as of full age (Curtin v. Patton, 11 Serg. & R. 809), is immaterial. ‘See also 54 N. Y. 252. 1 On the general subject of crimes committed by infants, see Winslow v. Ander- son, 4 Mass. 876; Commonwealth v. Green, 2 Pick. 380; State v. Handy, 4 Harr. (Del.) 566; Godfrey v. The State, 81 Ala. 823; Commonwealth v. Mead, 10 Allen, 898; State v. Learned, 41 Vt. 585; Stephenson v. State, 28 Ind. 272; Marsh »v. Loader, 14 C. B. n. 8. 686, s. c. 11 W. R, 784. McCOON v. SMITH. 221 thirty acres of land in the town of Granville. On the trial, the defendant showed title in himself and others, and out of the plaintiffs. The latter insisted that the defendant held as their tenant, and they were therefore entitled to recover possession, the defendant being estopped to question the plaintiffs’ title. To make out the tenancy, the plaintiffs relied on the defendant’s ad- mission of it while under the age of twenty-one years, by holding possession under the plaintiffs and giving them his promissory note for rent. The judge told the jury, in substance, that if they found the defendant gave the note for the rent, though under age, the relation of landlord and tenant was made out; that, though an infant, he was able to contract a tenancy by hiring the prem- ises, and to make a disclaimer. The defendant excepted ; and, a verdict having been rendered for the plaintiffs, the defendant now moved for a new trial on a bill of exceptions. J. Holmes, for the defendant. . Stevens, for the plaintiffs. By the Court; Cowrn, J. The learned judge considered the defendant’s contract of tenancy as an estoppel, although he was an infant. In this I think he erred. Even ina suit brought on the contract directly against the infant, he might have avoided its effect completely by showing his nonage. I think he may do the same, a fortiori, where his contract is set up as an estoppel to conclude him in an action of ejectment. It was said in argu- ment that an infant is liable in ejectment, on the ground of a wrongful possession ; and his power to confess is commensurate with his power to do any thing for which he would be liable to an action. I have no doubt the rule is so; and it would have let in an admission of the defendant that he entered on the land, upon the plaintiffs’ showing title in themselves. But here the title to the land was confessedly in the infant; and a constructive con- fession by contract amounting to an estoppel is sought to be raised against his assertion of that title. In other words, a confession by contract is alleged against him, by which the effect of his title and right of possession is to be overcome. This is certainly no more than the confession that a contract was made which he had no right to make; and does not come within the rule. New trial granted. See next case and note. 222 INFANCY. O , SPENCER v. CARR. (45 N. Y. 406. Court of Appeals of New York, April 28, 1871.) Estoppel in pais of Infants. The parents of an infant of six years made and executed a quit-claim deed of certain real estate to her, which was recorded. Subsequently, the parents executed a deed of the same property in trust to the appellant, under which trust he made large advances of money. The mother’s name was signed to this deed by the infant (then being about sixteen years of age), at the request of the mother. , Zeld, that, in the absence of inten- tional fraud upon her part, she having forgotten the deed to herself, the infant would not be estopped: by this act from claiming title under the previous deed to her (Chief Justice, and ALLEN, J., contra). In the case of a grantee only six years of age, where the grant is beneficial, an acceptance of the deed will be presumed. AppEaL from the judgment of the late General Term of the Supreme Court, in the seventh district, affirming the judgment of the Special Term in favor of the defendant. On the 19th day of July, 1856, Mary Ann Carr was the owner of certain real estate, and, on the same day, together with her hus- band, made and executed a mortgage on the same. The same premises were, November, 1856, by deed, duly recorded, conveyed by the defendants, Mary Ann Carr and her husband, to the infant defendant, Henrietta, then being about six years of age. On or about the 28th day of January, 1867, the said Mary Ann Carr and her husband executed a deed of the same premises, together with other real estate to which they had title, to the plaintiff, in trust; the latter executing back a declaration of trust. Under this trust the plaintiff made large advances of money, and also paid the outstanding mortgage on the premises. Mary Ann Carr’s name to this deed was signed, at her request, by the infant defendant, then about sixteen years of age. She at the time did not remember the conveyance to her. After all the advances had been made, and the plaintiff had proceeded to close up his trust, and not before, the fact of the con- veyance to her was recalled to her recollection. This action was brought to have her barred from claiming the premises, or that they be sold, and plaintiff’s advances repaid him. The Court found in favor of the plaintiff, so far as to cancel the discharge SPENCER v. CARR. 223 of the mortgage, and, declaring a foreclosure of the same, decreed that the deed of the minor had priority to his conveyance. James C. Cochrane, for the appellant. Charles S. Baker, for the respondent. By the Court. Prckuam, J. It is argued that the infant, Henrietta, under the facts of this case, conveyed her interest in the property, when she signed the name of her mother to the deed to the plaintiff. The deed was executed by her father and mother; and con- veyed, and assumed to convey, only their interest in the prem- ises. It is insisted that this was a fraud upon the plaintiff, practised by Henrietta, and that in equity her rights are made subject to the plaintiff; in other words, that she is estopped, by reason of her fraud, from setting up her title as against the plaintiff’s claim. If one obtain money, or aid in obtaining it, by falsely repre- senting that another has title to land, when he knows to the contrary, — when in fact he himself has the title, — he will be estopped from setting up his title as against the lender. The same sound rule of equity is applied to a prior incum- brancer who witnesses a second incumbrance, knowing its con- tents, and intentionally suffers the second mortgagee to act in ignorance of the prior mortgage. He is thereby auxiliary to an act of fraud. Brinckerhoff v7. Lansing, 4 J. C. R. 70; Lee v. Porter, 5 id. 272; Fonbl. Eq. 163.) FonBLANQUE says: ‘“* When a man has a title, and knows of it, and stands by and either encourages or does not forbid the pur- chaser, he shall be bound, and all claiming under him; neither shall infancy or coverture be any excuse in such case.” A case is reported, in 2 Eq. Cas. Ab. 488, where an infant, over seventeen years of age, had received the full consideration for a lease assigned by his guardian, and afterwards sought to avoid it, and demised the lands to another, yet equity compelled him to execute the lease or pay back the money; Kine, Chancellor, holding that infants had no privilege to cheat. Another case of fraud was by an infant, then about twenty years of age, who was employed by his father to raise money upon land which the father claimed to own in fee, free from incumbrance, and made affidavit to that effect. The money was 224 INFANCY. obtained ; and the infant was active in procuring it, and witnessed the mortgage. After his father’s death the infant set up, as the fact was, that he had a remainder in the land after his father’s death, which was all the time known to him, and insisted that the mortgage was not valid against him. The Lord Chancellor overruled the defence, holding that if an infant be old and cunning enough to contrive and carry on a fraud in equity, he ought to make satisfaction for it. 2 Eq. Cas. Ab. 515. See also Savage v. Foster (9 Mod. 85), where the same doctrine is recognized as to a covert, and sustained by the conceded rule applicable to infants. This was the case of a purchase of land by a third person, to which she had a title, and which she did not make known, but concealed. In Becket v. Cordley (1 Br. Ch. 353), Lord Chancellor THur- LOW recognizes the rule as applicable ‘to infants, where the infant was a party to the fraud; but he very properly repudiates the idea that merely witnessing the second conveyance by the infant is evidence of his knowledge of its contents. See also 1 Story Eq. Jur. §§ 385, 385 a, 386; Bright v. Boyd, 1 Story, 478, 493. In most of these cases in reference to infants, the rule is laid down that the infants should be of sufficient age to appreciate their rights and duties. On this subject Chancellor Kent makes some sound observations. 2 Kent, 240, 241, and cases cited. The claim of the counsel for the plaintiff is based on the alleged fraud of the defendant. The difficulty is that no fraud in the infant is found by the trial justice; but her innocence and free- dom from fraud are found. We have no power to question this finding, if it were open to question, as having no evidence to sus- tain it, as the testimony is not contained in the record. I should be entirely indisposed to listen to such an excuse from an adult as that he had forgotten his title ; but the facts of this case make it quite rational that she then had no recollection or even knowl- edge of this deed. It is also insisted that the plaintiff ought to be allowed the amount paid by the father of the infant upon the mortgage after his grant of land to the infant. An answer to this is, that no such fact is found. He may have paid money thereon; but, as it is not found that he did, or who paid it, or when, it is unimpor- tant to discuss the law of such a case. It is also urged that there was no acceptance of the deed by SPENCER v. CARR. 925 the infant; but this is contrary to the finding that the deed was delivered. A delivery cannot take place without an acceptance. Jackson v. Phipps, 12 J. R. 418. Besides, an acceptance will be presumed from the beneficial nature of the grant. Jackson v. Bodle, 20 J. R. 184. A delivery is found, and no presumption can be entertained to reverse a judgment. No fraud is found against the infant; none can be presumed from the facts found ; hence there is no ground for depriving her of her legal rights. Judgment affirmed, without costs in this court. Grover, Foucer, Rapatio, and ANDREws, J. J., concur; Chief Judge and ALLEN, J., dissent. That the admissions and confessions of an infant are competent evidence against: him, both in civil and cyiminal cases, when they relate to a matter for which the law holds him accountable, and that ‘‘ his power to confess is com- mensurate with his power to do any thing for which he would be liable to an action, seems well settled.” Mc- Coon v. Smith, 3 Hill, 147; Mather v. Clark, 2 Aik. 209 (an action against the infant for bastardy) ; State v. Guild, 10 N. J. 163. But the jury should weigh them with reference to the age and understanding of the infant. Mather v. Clark (supra). See also Moore v. Moore, 4 Sandf. Ch. 44. And should receive his confession more cautiously on account of his age. State v. Guild, 10 N. J. 189, 190. See the authorities collected in 1 Phillips on Evidence (Cow. and Hill’s and Ed- wards’s notes to 5th Am. ed.), pp. *522 note 147, *532 note 150. Indeed, in civil cases, the rule seems to be even broader, and that in general (where the infant has arrived at years of discretion) his acts and admissions rela- tive to the subject-matter are admissible against him, though their effect when received may frequently be controlled by his incompetency to bind himself by contract. See Haile v. Lillie, 3 Hill, 149, holding that where, in assumpsit by an infant for work and labor, he gives evidence tending to show a set- Judgment affirmed. tlement between the defendant and himself, his admission that no settle- ment took place is competent evidence against him. See also Ackerman »v. Runyon, 1 Hilt. 169. In Hamblett v. Hamblett, 6 N. H. 349, the rule is laid down as follows: ‘¢ But, farther, the general rule is that the acts of a party relative to the sub- ject-matter are admissible in evidence, and we find nothing to warrant us in making a minor an exception. The contract of a minor may not bind him, so that it can be enforced at law; but the contract is uniformly admitted in evidence, and the minority is only in answer or defence. So the acts of a minor may be given in evidence, to show him guilty of a trespass or a crime; and no case has been found to show that his admission may not be proved for the same purpose. What weight is to be attached to the evidence is to be settled upon the whole case; and stricter caution may be requisite in this respect on account of the mi- nority.” But the Court of Chancery will pro- tect an infant against his own immature judgment and improvident conduct, as well as the acts and designs of others, and where an infant defendant was ex- amined as a witness against his own interest by an adult co-defendant, his brother, under a common order and against the objection of the guardian 15 226 ad litem, his deposition was suppressed. Such an examination should not be bad without the special order of the Court, made upon a full understanding. of all, the circumstances. 4 Sandf. Ch. 37. As to whether the doctrine of es- toppel applies to infants, it is held, and it would seem correctly; that an infant is not estopped by his deed executed during infancy. Cook v. Toombs, 36 Miss. 688, where the infant was held not to be estopped by the recital of the receipt of a consideration in his deed. Houston v. Turk, 7 Yerg. 13, where the infant was held not to be estopped by a recital of his age in an indenture of apprenticeship.. See also Bigelow on Estoppel, 276. As to whether the doctrine of es- toppel in pais is applicable to infants, there is more doubt. There are dicta and cases to the effect that it does not apply to them. See Lowell v. Daniels, 2 Gray, 169; Brown v. McCune, 5 Sandf. 228; Ackley v. Dygert, 33 Barb. 193; Lackman v. Wood, 25 Cal. 153; Norris ». Wait, 2 Rich. 148. And the weight of authority undoubt- edly is that, where the action against the infant sounds in contract, the infant is not estopped from setting up his infancy in defence, by his false and fraudulent affirmations as to his age, means of payment, prosperous con- dition of his business, &c., made for the purpose of inducing another to contract with him, —as to sell him goods on credit; though as to whether he is liable in an action of tort for the mis- representation and deceit in such a case, the authorities are not agreed. See Gilson v. Spear (ante, p. 201), and authorities cited in notes thereto; Bige- low on Estoppel, 490, 491; Benj. on Sales, § 22, note (7). Nor is an infant defendant in eject- ment estopped, where he holds as ten- ant, from questioning his landlord’s title, and setting up a title in himself adverse to his landlord; his contract Moore v. Moore, INFANCY, of tenancy in such case cannot estop him. See the principal case of Mc- Coon v. Smith (ante). But it seems clear that if an infant, of years of discretion and fully ap- prised of his rights, having an interest in or right to property, conceals his rights, and stands by and permits or encourages another person to purchase it of another than the infant, or to take a mortgage upon it, as the property of such third person, the purchaser or mortgagee (at least in equity) will hold the property as against the infant. See 2 Sugden on Vendors (9th London ed.), 262; or page 743 of the 14th Eng. ed.; 1 Story’s Eq. Jur. (11th ed.) §§ 385, 886; Adam’s Eq. *176; Bigelow on Estoppel, 492, where the cases are well collected; Whittington v. Doe, 9 Geo. 28; Irwin v. Morell, Dud. 72; Hall v. Timmins, 2 Rich. Eq. 120; Davis v. Tingle, 8 B. Monr. 542; Schmitheimer v. Hiseman, 7 Bush, 298. See also Esron v. Nicholas, 1 De G. & S. 118; Stoke- man v. Dawson, id. 90; Wright v. Snow, 2 id. 821; Unity Joint-Stock Assoc. v. King, 3 id. 63; Thompson »v. Simpson, 2 Jones & L.110; Alsworth v. Cordtz, 31 Miss. 32; Kane Co. v. Herrington, 50 Ill. 232. But, in order to work an estoppel, the infant must be fully apprised of the facts in the case, and of his rights; and where he has forgotten or is ignorant of the fact that he is interested in the property, he is not estopped. Spencer v. Carr, 45 N. Y. 406 (ante); Schnell v. Chicago, 38 Ill. 382. See also Bige- low on Estoppel, 486, 524. And where the title of the infant is not concealed from, but is known to, the purchaser, who is not therefore de- ceived, the infant is not estopped, though present at the time of the sale by his guardian (who conveyed by warranty deed), and promising by him- self and by his guardian to convey his share when he should become of age. Burnham v. Porter, 24 N. H. 570. SLIVER v. SHELBACK. 227 SLIVER v. SHELBACK. (1 Dallas, 165. Supreme Court of Pennsylvania, April Term, 1786.) How Infants should appear. Judgments against, how and when avoided. — The appearance of an infant defendant in person is error. .A judgment rendered against him on such appearance is erroneous, and may be reversed by the infant, by writ of error, after becoming of full age; and the fact must be tried per pais, and not by inspection. THIs was a question on a writ of error, brought to reverse a judgment in the Common Pleas of Philadelphia County, against the plaintiff in error, when within age. The record of the Court below stated, that the defendant (now plaintiff) appeared in per- son, imparled to the next term, and then appeared and said noth- ing; wherefore, &c. The plaintiff attained his full age before he brought the writ of error. Levy, for the plaintiff in error, cited 8 Mod. 185; Rep. temp. Hardw. 104, 876; 1 Bl. Com. 465; Cro. El. 569, 818; Lill. Ent. 252; 3 Bac. Abr. 149. But as his arguments were afterwards admitted and repeated by the Court, it is unnecessary to insert them here. Lewis, for the defendant in error. Infancy must be tried by inspection. 38 Bl. Com. 331. By the record it is stated that the plaintiff in error appeared twice ; and the Court might then have tried the question of infancy by inspection, if he had suggested it ; so that he is not at this time entitled to be-relieved. 8 Bac. Abr. 124, 134; 3 Bl. Com. 331. In all judicial process, the error must be reversed before twenty-one years are attained for what is done in Court, though not for what is done in pais; as in the latter case, a different mode for the trial of infancy is adopted, to wit, an inquest: 3 Bac. Abr. 184-136; and that may be done either within, or at full age: 9 Vin. 877; Co. Litt. 280. ~ By M’Keay, C. J. Mil dicit is not a judicial act; but cognovit actionem would have been so. . Lewis, True: but the giving judgment upon nil dicit is a judi- cial act; and, when he says nothing, there is the greater reason for the inspection of his age, in order to protect him, who evi- dently knows not how to protect himself. But how can the 228 INFANCY. Court ascertain the truth of what is alleged? Not by the verdict of a jury, for this a judicial act; nor by the inspection of the party, for he has now attained his full age: it can only be done by the record. Lewis admitted, however, upon a question being put to him, that, by the rejoinder in error, the infancy, which was assigned for error, was acknowledged ; but he relied upon the impossibil- ity of obtaining relief for a judicial act done diens wetatem by a writ of error post plenam cetatem. The Chief Justice delivered the opinion of the Court, in sub- stance as follows : — M’Kuan, C. J. At the common law there could be no appear- ance in any suit, real, personal, or mixed, whether as plaintiff or defendant, but in proper person ; except where the king, by virtue of his prerogative, granted his writ for an attorney, and where an infant appeared to defend a suit by his guardian. The stat- ute of W. IT. c. 15, declares that if an infant is eloined, so that he cannot sue personally, his next friend shall be admitted to sue for him; and c. 10 of the same statute enables all persons of full age to sue and defend suits by attorney. But the appearance of an infant to a suit brought against him is not a judicial act. The appointment of a guardian to defend the suit, and the taking his examination when a fine is to be levied, a recovery to be suffered, or a statute staple, &c., to be acknowledged, are judicial acts. Most clearly, however, the appearance in this case is error. The authorities cited by the counsel for the defendant in error, to show that after his full age the party cannot take advantage of his previous infancy, appear to be restricted to real actions, and to fines and recoveries which are, in their operation, mere modes of assurance. But we are likewise clearly of opinion, that in other cases a judgment against an infant may be reversed after full age, and that the fact must be tried per pais, and not by inspec- tion. Moore, 460; Hardwicke’s Cases, 104; Hetly, 65. Let the judgment below be reversed. See note to next case. MILLS v. DENNIS, 229 MiLts v. Dennis. (3 John. Ch. 367. Court of Chancery of New York, June 15, 1818.) No Decree against an Infant by Default. Day in Court to show Cause. — There can be no valid decree against an infant, by default, nor on his answer by his guardian; but the plaintiff must prove his demand in Court, or before a mas- ‘ter, and the infant will have a day in Court, after he comes of age, to show error in the decree. Infant bound by Decree of Sale of mortgaged Premises, &c.— But if, instead of seeking a foreclosure of the mortgage against the infant heir of the mortgagor, “there is a decree for the sale of the mortgaged premises, the decree will bind the infant. A sale is the most useful course, as being the most beneficial to both parties. But, before a decree for the sale, there must be a special report of a master, of the proof of the debt before him, of the amount due, and of what part (if less than the whole) of the mortgaged premises a sale will be sufficient to raise the amount of debt, and, at the same time, be most bene- ficial to the infant. Brut to foreclose a mortgage executed by Isaac Dennis, de- ceased. The defendants (except one) are the heirs-at-law of the mortgagor, and two of them represented as infants. The bill was duly taken pro confesso, against all the defendants, except the two infants, who appeared and answered by their guardian, the clerk of the Court, who was appointed their guardian for this purpose by an order of the Court. A reference was made to a master to compute and report the amount due on the bond and mortgage mentioned in the bill. The cause was then regularly set down for hearing upon. the report ; and due notice thereof, as respected the infants, was served upon their guardian. G. W. Strong, for the plaintiff, moved for confirmation of the report, and a decree for the sale of the mortgaged premises. The CHANcELLOR. A decree cannot safely be obtained against an infant upon the mere fact of taking the bill pro eonfesso, or upon an answer in form by the guardian ad litem. The answer in such cases generally is that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but: leaves the plaintiff to prove them as he shall be advised, and throws himself on the protection of the Court. A decree upon such an answer would not bind the infant, and he could open it or set it aside when he comes of age. No laches can be imputed 250 INFANCY. to an infant, and no valid decree can be awarded against him merely by default. The plaintiff in every such case ought to prove his demand, either in Court or before a master; and the infant is usually entitled to a day to show cause, when he comes of age. It was the ancient, and has been the settled, practice of the Court, that no decree should be made against an infant with- out giving him a day (which was usually six months), after he comes of age, to show cause against it: 2 Vern. 282, 342; 2 P. Wus. 408 ; and he is to be served with process of subpcena for that purpose on his coming of age: Bingham on Infancy, p. 116. But though, in the case of a foreclosure of a mortgage, the infant has six months to show cause, yet he cannot then be permitted to unravel the accounts, nor will he be entitled to redeem the mortgage by paying what is reported due. He is only entitled to show error in the decree; and this was declared to be the settled rule by Lord Tausot, in Mallack v. Galton, 3 P. Wms. 3852; and was understood to be the rule in the case of the Bishop of Winchester v. Beaver, 3 Vesey, 317. If, however, instead of foreclosing the mortgage against the infant heir of the mortgagor, and thereby giving him a day after he comes of age, it be decreed that the lands be sold to pay the morigage- debt, then it seems to be understood that the sale will bind the infant. Booth v. Rich, 1 Vern. 295. So, if lands devised to be sold for payment of debts be decreed to be sold, the infant has no day after he comes of age, unless he be decreed to join in the sale. 2 Vern. 429. The English practice, until lately, has been to foreclose, instead of selling, the mortgaged premises. Thus in Goodier v. Ashton, 18 Vesey, 83, there was the usual decree of foreclosure against an infant, with a day to show cause, though it was then suggested to the Court that a decree for a sale would be more advantageous to the infant, as the estate might be mortgaged for less than its value; and it was said to be the rule in Ireland to direct a sale in all cases, instead of a fore- closure. But the Master of the Rolls did not incline to make such a precedent against the uniform practice. This course was, however, shortly afterwards adopted by Lord Expon in Mondey v. Mondey, 1 Vesey & Bea. 223, who said that if there was no precedent (as he believed there was not) he would then make one; and he directed an inquiry whether it would be for ‘the infant’s benefit that the estate should be sold. The practice eee MILLS v, DENNIS. 231 with us has been to sell, and not to foreclose, as well where infants as where adults are concerned. I think this course must generally be most beneficial to the infant as well as to the cred- itor ; and there can be no doubt of the authority of the Court to pursue it. The Court may change the estate of infants from real into personal, and from personal into real, whenever it deems such a proceeding most ‘beneficial to the infant. Amb. 419; 6 Vesey, 6; 8 Desaus. (S. C.) 18, 21. The proper inquiry in such cases will be, whether a sale of the whole, or only of a part, and what part, of the premises will be most beneficial ; and this has now become the usual inquiry, even where infants are not concerned, as appears from the case of Brinckerhoff v. Thalhimer, 2 Johns. Ch. 486. The master must not only make a special report on that point, in every case where infants are defendants ; but the plaintiff must also prove his debt before the master in the same manner as if nothing had been admitted by the answer; and the master must report such proof, and also the computed amount of the principal and interest due, and to what extent and of what part of the premises (if any part short of the whole) a sale would be sufficient to raise the debt, and at the same time be most beneficial to the infant. Every sale so decreed will be absolute, without any day to show cause. The following order was entered: “ The plaintiff’s bill of complaint in this cause having been taken pro confesso, against the defendants, &c., and this cause having this day been brought on to be heard, on the said bill so taken pro confesso, against the said defendants, and upon bill and answer as to the above-named defendants, Thomas Doty, Jun., and Elbert Doty, who are infants ; whereupon, after reading a notice of hearing of this cause, and admission of the due service thereof by the guardian ad litem to the said defend- ants, Thomas Doty, Jun., and Elbert Doty ; and after reading the said bill and answer, and an affidavit of the solicitor for the plaintiff proving the regularity of the proceedings in this cause, in taking the said bill pro confesso against the above-named defendants, as aforesaid (which affidavit is filed), and after hear- ing counsel for the plaintiff, no counsel appearing for the said defendants, Thomas Doty, Jr., and Elbert Doty, the said infants, to oppose the same, — it is ordered, adjudged, and decreed, that be referred to one of the masters of this Court to take proof of the material facts stated in the plaintiff’s bill of complaint, 232 INFANCY. and particularly whether the bond and mortgage in the plain- tiff’s bill mentioned were duly executed as therein set forth ; and if the said bond and mortgage were duly executed, that the said master compute and ascertain the amount due to the plain- tiff for principal and interest thereon ; and it is further ordered that the said master, under the circumstances of.the case, in ref- erence to the amount due to the plaintiff for principal and interest on the said bond and mortgage, and the situation, nature, and value of the mortgaged premises, ascertain whether a sale of the whole, or a part only, and what part, of the said mortgaged prem- ises would be for the benefit of the said infant defendants; and that the said master report on all the matters aforesaid to this Court, with all convenient speed. And all further directions are reserved until the coming in of the said report.” As to the time when certain judicial acts may be avoided by infants, the rule is thus stated in Bacon's Abridge- ment (Infancy & Age, I. 5): ‘ But matters of record, as statutes merchant and of the staple, recognizances ac- knowledged by him, or a fine levied by him, recovery against him by default in areal action (saving in dower), must be avoided ; viz., the statute, &c., by au- dita querela, and the fine and recovery (by writ of error), during his minority ; for being judicial acts taken by a Court or judge, the nonage of the party to avoid the same, shall be tried by in- spection, and not by the country.” See Co. Litt. 3806; Bac. Abr. Infancy, I. 7; Com. Dig. ‘‘ Enfant.” C. 11; Tucker v. Moreland, 10 Peters, 71 (ante, p. 128); 2 Kent’s Com. * 237; Reeve’s Dom. Rel. p. * 255; Mete. on Cont. 43; Tyler on Inf. & Cov. p. 64. See also Hesketh v. Lee, 2 Saund. 96 a, note; 5 J. J. Marsh. 117; 17 Wend. 132; 14 Vt. 77; 13 Vt. 88; 8 BL. Com. 331. The reason of this rule is found in the method of trial at common law of the question of infancy in such cases; viz., by inspection, which probably does not exist in any of the United States. Mete. on Cont. 43; Bing. on Inf. 57. ‘* Also, it is said that if an infant ap- pear by attorney, and suffer a recovery, it may for this error be reversed after the infant comes of age, because it shall be tried by the country whether the warrant of attorney was made when under age or not.” Bac. Abr. Inf. I. 5; 1 Sid. 321; 1 Lev. 142; 5 Mod. 209. “(So a judgment against an infant may be avoided, before or after his full age, by error, for that he appeared by attorney, being an infant, and not by guardian; for it shall not be tried by inspection, but by the country.” -Com. Dig. ‘* Enfant.” C. 9; R.2 Rol. 573, 1, 15, 25, 45. See also Powell v. Gott, 13 Mo. 458 (brief of plaintiff in error, and opinion of Court), following Sliver v. Shelback, where a motion in the nature of a writ of error coram nobis, to set aside a judgment rendered against an infant defendant, who ap- peared by attorney, was granted after he had arrived at age. The same rule was also adopted in Haigler v. Way, 2 Rich. 324. . It is well settled that an infant de- fendant cannot appear in person or by attorney, ‘‘ for an attorney’s appearing for him is without warrant;” but he must appear by guardian. See Bing. on Inf, *123 and note; 1 Story on MILLS v. Cont. (4th ed.) § 82 j; Co. Litt. 135 8, and note 220; 2 Saund. 117 f, note (1); Bac. Abr. Infancy, K. 2; Oliver v. Woodroffe, 4 M. & W. 650; Mackey v. Grey, 2 John. 192; Bullard »v. Spoor, 2 Cow. 430; Peak v. Shasted, 21 Ill. 137; Kesler v. Penninger, 59 Ill. 134; Comstock v. Carr, 6 Wend. 526; Alderman v. Tirrell, 8 Johns. 418; Shepherd v. Hibbard, 19 Wend. 96; Cruikshank v. Gardner, 2 Hill, 333 ; Powell v. Gott, 18 Mo. 458; Randalls v. Wilson, 24 Mo. 76 (where a judg- ment against an infant plaintiff, who ap- peared by attorney, was held erro- neous); Lee v. Jenkins, 30 Miss. 592; Timmons v. Timmons, 6 Ind. 8; Cav- ender v. Heirs of Smith, 5 Iowa, 192; Miles v. Boyden, 3 Pick. 219; 4J. J. Marsh. 562; Glass v. Doe, 2 Blackf. 293; Abdil v. Abdil, 26 Ind. 287; Cook’s Heirs v. Tatten’s Heirs, 6 Dana, 108; Marshall ». Wing, 50 Me. 62; Starbird v. Moore, 21 Vt. 529; Wris- ley v. Kenyon, 28 Vt. 6; Swain v. Fidelity Ins. Co., 54 Penn. St. 455 ; Jarman v. Lucas, 15 C. B. w. 8. 474; 1 Moore, 250; 7 Taunt. 488 ; 2 Wils. 50; 4M. & W. 650; 13 Geo. 472. See also 2B. Monr. 453. And the guardian must be a real and not a fictitious person; therefore the appointment of ‘‘John Doe” as guardian ad litem is error. Bullard v. Spoor, 2 Cow. 430. See also Young v. Whitaker, 1 A. K. Marsh. 400. But see Mercer v. Watson, 1 Watts, 349; Fearing v. Clawson, 1 Hall, 55; Van Deusen v. Brower, 6 Cow. 51. But after the appointment of a guardian for infant defendants, if an attorney appears and pleads in their name, it will be presumed that he is properly authorized soto do; the rule applying only to appearance upon the record, and not being intended to de- prive the infant of the benefit of coun- sel. Doe v. Brown, 8 Blackf. 444; citing 11 Wend. 164. But the judgment is not erroneous, if, pending the suit, the infant becomes of age and afterwards pleads. See DENNIS. 233 Marshall v. Wing, 50 Me. 62. See also 5 Penn. St. 109. Neither, and for the same reason, can an infant plaintiff sue by attorney, but must sue by guardian or next friend. Miles v. Boyden, 3 Pick. 219; McGif- fin v. Stout, Coxe, 92; McDaniel v. Nicholson, 2 Mill’s Const. 344; Bouche v. Ryan, 3 Blackf. 472; Jack v. Davis, 29 Geo. 219; Jeffrie v. Robi- deaux, 3 Mo. 33; Hunt v. Southern R. R. Co., 40 Miss. 394; Keeran v. Clowser, 5 Blackf. 604; Hooks v. Smith, 18 Ala. 340. See also 12 IIl. 431; 7 Tex. 201; 13 Tex. 305; 2 Doug. (Mich.) 430; 37 Geo. 217; 1 Bl. Com. * 464; 1 Tidd’s Pr. 99. It is said by some respectable author- ities that in general the infant must sue by guardian; and that the cases where an infant may sue by prochein ami, are cases of necessity,— as where the infant has no guardian; or is to sue his guar- dian; or is eloigned; or where the guardian will not sue for him, or is out of the country; or where the guardian so far countenances the suit as not to forbid the infant to sue by prochein ami ;— but that, if the guardian will not consent that the suit should be brought, he cannot sue by prochein ami. See Reeve’s Dom. Rel. 264 and note ; Palm. 296; Bac. Abr. Inf. K. 2; Apthorp ». Backus, Kirby, 429; Cavender v. Heirs of Smith, 5 Iowa, 129; Thomas v. Dike, 11 Vt. 273 ; Hardy v. Scanlin, 1 Miles (Penn.), 87; Isaacs v. Boyd,. 5 Port. 888; 1 Story on Cont. (4th ed.) § 82). And this, where the practice is not otherwise regulated by statutes (other than Westm. 1, c. 48, and Westm. 2, c. 15), may perhaps be considered the more reasonable doctrine; but in many of the States the matter is regulated by statute, and practically the distinction seems of little importance; and, per- haps, it may be stated that generally, except in cases of necessity,— as where he is to sue his guardian, or is eloigned, or has no guardian, or his guardian will not sue for him, or is out of the coun- \ 2384 try, he may sue either by guardian or prochein ami. See 2 Saund. 117 f, note (1) ; Bing. on Inf. 118, and notes; Tyler on Inf. § 133, p. 193; Co. Litt. 135 b, note 220; Miles v. Boyden, 3 Pick. 219; Mayor v. Norman, 4 Md. 352; Deford v. State, 30 Md. 199, and the authorities cited to the second pre- ceding point. But bills in chancery, it is said, can be brought by an infant by prochein ami only. Bing. on Inf. 123; Bac. Abr. Inf. K. 2; Bradley ». Amidon, 10 Paige, Ch. 239; Hoyt v. Hilton, 2 Edw. Ch. 202; Lemon v. Hansbarger, 6 Grat. 301. When an infant sues otherwise than by guardian or prochein ami, the defendant may plead his disability. Reeve’s Dom. Rel. 264; 2 Saund. 218. As to nature of the office of prochein ami, and his duties and authority, see Isaacs v. Boyd, 5 Port. 388; Smith v. Redees, 9 Ala. 99; Deford v. The State, 30 Md. 179; Baltimore & Ohio R. R. Co. v. Fitzpatrick, 36 Md. 619; Allen v. Roundtree; 1 Speers, 80; Morgan v. Thorne, 7 M. & W. 400; Sinclair v. Sinclair, 13 M. & W. 640; White v. Hall, Moore, 852; Collins v. Brook, 4 H. & N. 270, 5s. c. 5 H.G N. 700. But judgments or decrees against an infant defendant without the appoint- ment of a guardian for him, or judg- ments rendered in proceedings where infants appear as plaintiffs by attorney, are not void till reversed, but voidable only. Peak v. Shasted, 21 Ill. 138; Fulbright v. Cannefox, 30 Mo. 428; Bailey v. McGinnis, 57 Mo. 362; Por- ter’s Heirs v. Robinson, 3 A. K. Marsh. 253; Smith v. Bradley, 14 Mass. 485; Townsend v. Cox, 45 Mo. 401; Kemp »v. Cook, 18 Md. 130; Blake v. Douglass, 27 Ind. 416; Trap- nall v. State Bank, 18 Ark. 53; Austin v. Charlestown Female Seminary, 8 Metc. 196. See also Allison v. Taylor, 6 Dana, 87; Wilkiming v. Schmale, 1 Hilt. (N. Y. C. P.) 263; 26 Tex. 468. The privilege of infancy is a per- INFANCY, sonal one that may be waived; and, if not insisted upon in the original suit, or by direct process to avoid the judg- ment obtained in such suit,—such as writ of error coram nobis, audita querela, &c.,— the infant is concluded, and can- not thereafter insist upon his privilege in an action upon, or other proceeding to enforce, the original judgment ob- tained therein. Ludwick v, Fair, 7 Tred. 422 (an action on the judgment of a justice of the peace); Beeler’s Heirs v. Bullitt’s Heirs, 3 A. K. Marsh. 282; Townsend v. Cox, 45 Mo. 401; Blake v. Douglass, 27 Ind. 416, and the authorities cited next above. See also Flynn v. Powers, 54 Barb. 550; Crockett v. Drew, 5 Gray, 399; Hawes v. Hathaway, 14 Mass. 233. But in Etter v. Curtis, 7 W. & S. 170, which was debt upon a judgment rendered by a justice of the’ peace by confession against an infant, while the above doctrine was admitted to apply to judgments rendered in a Court of record, it was held that, as no writ of error lay to remove the judgment of a justice of the peace, and as a certiorari would correct no more than errors ap- parent on the face of it,— to prevent a failure of justice, the infant would be allowed to plead his infancy to the action on the judgment. See also 1 Am. Lead. Cas. (4th ed.) 267; Austin v. Charlestown Female Seminary, 8 Metc. 204, and cases cited. But an infant has no capacity to waive a proper service of process upon him, nor any of the formalities of ser- vice necessary to give the Court juris- diction over his person. Winston v. McLendon, 43 Miss. 254. As to admission of service of pro- cess by the guardian for his ward not rendering the judgment void, see White v. Albertson, 3 Dev. 242. But a judgment or decree against an infant without the appointment of a guardian, or where he appears by at- torney only, is erroneous, and may for that reason be reversed by writ of error, writ of error coram nobis, or MILLS v, other proper proceeding, according to the practice of the State where the case arises. Sliver v. Shelback, 1 Dallas, 165 (ante); Moore v. McEwen, 5 S. & R. 373; Knox v. Flack, 22 Penn. St. 887; 2 Saund. 101 a, note 1; Kemp ». Cook, 18 Md. 137; Piercy v. Piercy, 5 West Va. 199; Knapp v. Crosby, 1 Mass. 479; Crockett v. Drew, 5 Gray, 899; Swan v. Horton, 14 Gray, 179; Peak v. Shasted, 21 Hl. 188; Starbird v. Moore, 21 Vt. 533; Chase v. Scott, 14 Vt. 77; Mason v. Dennison, 15 Wend. 68; Meredith v. Sanders, 2 Bibb, 101; Somers v. Rogers, 26 Vt. 585; Powellv. Gott, 13 Mo. 458; Aus- tin v. Charlestown Female Seminary, 8 Mete. 196; Haigler v. Way, 2 Rich. 324; Cole v. Pennell, 2 Rand. 174; Nicholson v. Wilborn, 18 Geo. 467; 18 Ill. 59; 19 Ill. 226; 13 Geo. 473; 26 Tex. 293. But such judgment cannot be im- peached by matters in pais, nor collat- erally ; but in general only by writ of error where that writ lies, or by some direct proceeding for that purpose. Trapnell v. State Bank, 18 Ark. 63; Tucker v. Moreland, 10 Peters, 59 (ante, p. 128); Bac. Abr. Inf. I. 7; Bing. on Inf. * 57. And a judgment rendered against an infant upon default, or upon plea withdrawn by the guardian, is errone- ous. Chalfant v. Monroe, 3 Dana, 35 ; Rowland’s Heirs v. Cock’s Adm’r, 1J.J. Marsh. 453 ; Knapp v. Crosby, 1 Mass. 479; Swan v. Horton, 14 Gray, 179; Peak v. Pricer, 21 Ill. 164 ; Cost v. Rose, 17 Ul 276; Peak v. Shasted, 21 Ill. 187. But see Young v. Whitaker, 1 A. K. Marsh. 400. Nor can a decree be taken against DENNIS, 235 him pro confesso. Mills v. Dennis, 3 Johns. Ch. 367 (supra) ; Cost ». Rose (supra) ; Ralston v. Lake, 8 Iowa, 26 ; Heath v. Ashley, 15 Mo. 393; Wells v. Smith, 44 Miss. 803; Mellvoy »v. Alsop, 45 Miss. 374, and the cases cited to the next point. No decree can be taken against a minor on his own admissions or those of his guardian: ad litem (except, per- haps, on admissions evidently for the benefit of the infant); but, as against him, every allegation of the bill or peti- tion must be duly proved. Mills v. Den- nis, 3 John. Ch. 367 (supra) ; Ingersoll v. Ingersoll, 42 Miss. 155 ; Johnson v. Mc- Cabe, 42 Miss. 255; Mcllvoy v. Alsop, 45 Miss. 374; Wells v. Smith, 44 Miss. 296 ; Taylor's Heirs v. Parker, 1 Smith (Ind.), 225; Hough v. Doyle, 8 Blackf. 300; Thayer v. Lane, Walk. Ch. 202; Smith v. Smith, 13 Mich. 262; Ralston v. Lahee, 8 Iowa, 26; Hitt ». Ormsbee, 12 Ill. 166; Tuttle v. Garrett, 16 Ill. 354; Barnes v. Hazleton, 50 Ill. 429; Thomas v. Adams, 59 Ill. 223; Camp- bell v. Campbell, 63 Tl. 502; Chandler v. McKenney, 6 Mich. 219; Masterson v. Wiswould, 18 Ill. 48; Reavis v. Fielden, ‘18 Ill. 77; Reddick v. State Bank of Illinois, 27 Ill. 145; Tibbs o. Allen, 27 Ill. 119 ; Wells v. Wells, 6 Ind. 447; Revely v. Skinner, 33 Mo. 98; Benson v. Wright, 4 Md. Ch. Dec. 278 ; Eaton v. Tillinghast, 4 R. 1. 284, and authorities in said cases cited. Adams, Eq. * 363; 2 Kent's Com. 245. In Walsh v. Walsh, 116 Mass. 377, however, it is held that a decree made upon the consent of the guardian ad litem of an infant, and upon the repre- sentations of counsel and adjudication of the Court that it was a decree fit 1 See, however, Mason v. Denison, 15 Wend. 64, where it is held that the infancy of one of two defendants, as joint debtors, against whom judgment is rendered in form (though it is not personal as to the infant, and can only affect the joint property, and not the sole property of the infant), cannot be assigned as error in fact upon a writ of error coram nobis to revoke the judgment, where, upon the capias ad respondendum, ‘the infant is returned not found, and the other defendant taken, and judgment is entered against both defendants, pursuant to the statute authorizing proceedings against joint debtors. See also Van Bramer v. Cooper, 2 Johns. 279. 286 and proper to be made as against the infant, is binding upon him. But if a judgment or decree is taken against him by nil dicit or default, or by pro confesso for want of an answer, without taking any proof, it is errone- ous only, and not void. White v. Al- bertson, 3 Dev. 242; Shields v. Powers, 29 Mo. 3817. But where the judgment against an infant is properly rendered and entered, and he is properly represented in the suit, he is bound thereby. Priest v. Hamilton, 2 Tyler, 50; Wisleys v. Ken- yon, 28 Vt. 5. In like manner judgments and decrees in suits where infants are plain- tiffs, and properly represented, are in general binding upon them; at least, where the decrees are for the benefit of the infants they are binding; and neither they nor their representatives are allowed to open the proceedings, unless upon new matter, or on the ground of gross laches, fraud, or collu- sion. Sheffield v. Duchess of Bucking- hamshire, 1 Atk. 631; 1 West, 684; Gregory v. Molesworth, 3 Atk. 626; Lord Brook v. Lord Hertford, 2 P. Wms. 519; Cannon v. Hemphill, 7 Tex. 201; Becton v. Becton, 3 Jones, Eq. 422; 2 Madd. Ch. Pr. 461; Simp- son v. Alexander, 6 Cold. 629; Darvin v. Hatfield, 4 Sand. 478. See also Reeve’s Dom. Rel. * 255, 256. ‘ There are, however, cases where it is said that an infant plaintiff may be allowed to show cause, when he comes of age, against a decree in his own cause respecting real estate; but that he is bound by a decree in a cause re- garding personal estate where plaintiff, as much as if of full age. 2 Madd. Ch. Pr. 461; Sir John Napier v. Lady Effingham, 2 P. Wms. 401, s. c. 3 Br. P. C. 1; Gregory v. Molesworth, 3 Atk. 627. See also Cannon v. Hemphill, 7 Tex. 202, where this distinction between real and personal estate was disapproved. The case (Napier v. Lady Effingham) cited to sustain the distinction was a case of a bill filed by the minor, to be INFANCY. relieved from a conveyance of settle- ment obtained by undue influence, in which a cross-bill was filed to establish. the settlement, and the original bill was. dismissed, and the defendant let into possession of the premises ; but leave was given the plaintiff to show cause, witbin six months after he should come of age, both as to the decree dismissing the original bill and the decree against: him in the cross-cause. In his opin- ion, when the case subsequently came before him, the Lord Chancellor said: “ Therefore, this cause is to be con- sidered as if there had been a common decree against an infant relating to his, inheritance, with a nisi causa within six , months after he should come of age; in - which case it would be plain the de- fendant might amend his answer ;” and leave was given the plaintiff to amend his answer and have the causes reheard, but not to amend the original bill, or to file a new or supplemental bill. So that it seems that the case is no au- thority for the distinction, except, per- haps, in cases of decrees against an infant plaintiff affecting his inheritance. See s. c. 3 Bro. P. C. 301. See also, as to the point that a de- | cree need not give a day to infant com- plainants, Williamson ». Johnston, 4 Mon. 255; Jameson v. Moseley, 4 Mon. 416; McClay v. Norris, 9 Ill. 883; Brown v. Armistead, 6 Rand. 602 ; Hanna v. Spotts, 5 B. Monr. 367. But a decree in chancery against an infant defendant should give him a day in Court (usually six months), after becoming of full age, in which to im- peach the decree for fraud, collusion, or error. Beeler v. Bullitt, 4 Bibb, 11; Collard ». Groom, 2 J. J. Marsh. 488; Jones v. Adair, 4 id. 220; Arnold v. Voorhies, 4 id. 508; Passmore v. More, 1 id. 593; Harlan v. Barnes, 5 Dana, 223; Mills v. Dennis, 3 Johns. Ch. 367 (supra); Bushnell v. Harford, 4 Johns. Ch. 302; Pope v. Le Master, 5 Litt. 77; Drayton v. Drayton, 1 Dessaus. 125; Wilkinson v. Wilkinson, 1 Dessaus. 202; Whit- MILLS v. ney v. Stearns, 11 Metc. 819; Ander- son v. Irvine, 11 B. Monr. 343; Simp- son v. Alexander, 6 Cold. 629; Harris v. Youman, 1 Hoff. Ch. 178; Wright v. Miller, 1 Sandf. Ch. 120; Coffin v. Heath, 6 Mete. 81; Jameson v. Mose- ley, 4 Mon. 417 ; Long ». Mulford, 17 Ohio St. 506 ; Mair v. Kerr, 2 Grant (U. C.) 223; Reeve’s Dom. Rel. * 255, 256; 2 Vern. 342; Bing. on Inf. 131; 2 Kent's Com. 245. But he need not wait till of age, but may apply for redress against the decree as soon as he sees fit. Bing. on Inf. 131; Richmond v. Tayleur, 1 P. Wms. 736; Newland v. Gentry, 18 B. Monr. 671. See also Loyd v. Malone, 23 Ill.*43; 41 Ill. 177. See also Napier v. Lady Effingham, 2 P. Wms. 401, where the infant, who was plaintiff in an original bill and de- fendant to a cross-bill, on arriving at age, and petitioning for leave to amend, &c., in order to show cause, was re- fused leave either to amend his original bill, which had been dismissed upon the merits, or to bring a new or supple- mental bill ; but was allowed to amend his answer or put in a new answer to the cross-bill. See s.c. 3 Bro. P. C. 1; 3 Bro. P. C. 301. Also, as to amending or putting in a new answer, see Fountain v. Cain, 1 P. Wms. 504; Bennet v. Lee, 2 Atk. 531; Ralston v. Lahee, 8 Iowa, 17. In Sheffield v. Duchess of Bucking- ham, 1 West. 684, Lord Harpwicke said he took it to be the course of the Court not to give a day, unless a con- veyance was directed in form or sub- stance. See Whitechurch v. White- church, 9 Mod. 125; also, Hendricks v. McLean, 18 Mo. 41, where the cases are considered, and the conclusion ar- rived at ‘‘that no day is given where the decree directs the sale of lands to be made for payment of debts, and the conveyance is not to be made by the infant. Where he is required to unite in the conveyance, or to make the con- veyance, time is given him to show cause against the decree after his ma- DENNIS, 237 turity.” And the further conclusion was arrived at that, as by their statute the decree itself passes the title, and no act is required to be done by the in- fant, no day is. necessary to be given. The rule in Whitechurch v. White- church, and Sheffield v. Duchess of. Buckingham, is also approved. in Creath v. Smith, 20 Mo. 121; Svorr, J., dissenting, and referring for his views to Ruby v. Strother, 11 Mo. 422. See Shields v. Powers, 29 id. 318; Dow v. Sewell, 21 N. H. 440. But in Harris »v. Youman, 1 Hoff. Ch. 182, the case of Sheffield v. Buck- ingham is criticised, and the rule in England is stated to be that, ‘‘when-— ever the inheritance of an infant is bound by the decree, there must be a day given him to show cause, whether. a conveyance is decreed or not.” And ‘Horrman, V: C., said: ‘‘Upon the whole, I consider that the rule is broader than Lord HarDWwIckE stated it in the single case referred to, and that in general the infant must have his day, where his inheritance is af- . fected.” See also Long v. Mulford, 17 , Ohio St. 506. There would seem to be no doubt (in the absence of statutory regulations to the contrary) that in all cases where a conveyance, in form or in substance, | by the infant is required, or where he is _ required to unite in a conveyance, that a day must be given after arriving at full age. Creath v. Smith, 20 Mo. 116. And perhaps the rule may properly be considered. to extend even farther, as stated above in Harris v. Youman, 1 , Hoff. Ch. 182. Aud it seems customary to insert the provision for showing. cause in decrees _, for strict foreclosure. See Harris v. Youman, 1 Hoff. Ch. 180; Mallock v. Galton, 3 P. Wms. 352; Lyne v. Wil-. hs, ibid. note; Williamson v. Gordon, 19 Ves. 114; Creath v. Smith, 20 Mo. | 117; and the cases cited to the second , point below. But in foreclosure cases, the decree can only be impeached for error, and i 238 the infant cannot even redeem; where- as, in other cases he may amend, or file a new answer.) Mallock v. Galton, Lyne v. Willis, Williamson v. Gordon, Mills v. Dennis, 3 John. Ch. 367 (su- pra); McClay v. Norris, 9 Ill. 881, and cases cited. But if the decree is for the sale of the mortgaged premises to pay the mortgage debt, or for the sale of lands devised to be sold for’ the payment of debts, it is held that the infant has no day, and the sale is absolute. 2 Kent’s Com. 245; Reeve’s Dom. Rel. 256; Booth v. Rich, 1 Vern. 295; Cooke v. Parsons, 2 Vern. 429; Mills v. Dennis, 3 John. Ch. 367 (supra); Brown »v. Armistead, 6 Rand. 594; Smith v. Brad- ley, 14 Miss. 485; Scholefield v. Hea- field, 7 Sim. 667. See also the cases collected and considered generally in Hendricks v. McLean, 18 Mo. 82, 45. But see Chandler v. McKinney, 6 Mich. 219. In the most of the American cases, however (where the subject is not con- trolled by statute), a day has been given to show cause, and this (though most of the cases relate to real estate) apparently without reference to any distinction as to the subject-matter of the suit. See the cases cited at the be- INFANCY. ginning of this subject, and Creath v. Smith, 20 Mo. 118. Those wishing to pursue this subject further, besides the foregoing authori- ties, are referred to Bing. on Inf. * 131 ef seqg.; 1 Am. Lead. Cas. (4th ed.) 266; 1 Barb. Ch. Pr. 206; Regla v. Martin, 19 Cal. 463; 1 Danl. Ch. Pr. (3d Am. ed.) p. 154 e seq., where the subject is quite fully considered ; also, especially, to Long v. Mulford, Harris v. Youman, Hendricks v. McLean, and Creath v. Smith, above cited. Under the practice in Illinois, a decree in chancery against an infant is, in the first instance, absolute, and no day is given to show cause ; but, instead thereof, the statute allows him five years after becoming of age to bring his writ of error. See Barnes v. Hazle- ton, 50 Ill. 482; Wadhams v. Gay, 7 Chicago Legal News, 169; Kucken- beiser v. Beckert, 41 Ill. 177. As to the effect of a decree between defendants, see Elrod v. Lancaster, 2 Head, 571. ae But the rule requiring the decree against an infant to allow a day to show cause, is held not to apply to an infant trustee, even where the trust results by implication of law. Walsh v. Walsh, 116 Mass. 377. Cutts v. GorDoN. (13 Maine, 474. Supreme Judicial Court of Maine, August Term, 1886.) Plea of Infancy by one of several Joint Defendants. — Where one of several defendants in an action of assumpsit pleads his infancy, and gives it in evi- dence upon the trial, the jury may find a verdict for the infant, and for the 1 But in Walker v. Page, 21 Grat. 643, it was held that “the right of an infant to show cause against a decree which affects his interests, after he arrives at age, must be lim- ited to this extent, to show cause existing at the rendition of the decree, and not such as arose afterwards. The question always must be, Can any cause be shown why the decree, at the time it was rendered, was not a legal and binding decree ?” CUTTS v. GORDON. 239 plaintiff against the other defendants; and judgment may be rightly rendered on such verdict. This, however, is but an exception to the general rule, that, if a plaintiff in an action of assumpsit declare against several, he must prove a promise by all the defendants, or he cannot maintain his action against any of them. Exceptions from the Court of Common Pleas. This was an action of assumpsit, and was tried before Wuitman, C. J. One of the defendants was defaulted. Gordon and Haskell, the other two defendants, pleaded the general issue, and filed a brief statement, alleging that Haskell was a minor at the time the contract was made. Evidence was offered to show that Haskell was a minor. The counsel for the plaintiff requested the Court to instruct the jury that they might find a verdict for the infant defendant, and a verdict for the plaintiff against the other defendant. Wuut- MAN, C. J., declined to give this instruction, and instructed the jury that, if they found that Haskell, the alleged minor, was under age, that they must find a general verdict for all the de- fendants. A general verdict for all the defendants was returned. The counsel for the plaintiff excepted to the ruling of the judge. J. Appleton and 8. H. Blake, for the plaintiff. J. B. Hill, for the defendants. Weston, C.J. It is a well established principle in the English law, that in assumpsit, where too many defendants are joined, the plaintiff must fail in his action, though he prove an express or implied promise against some of them; and that the objection cannot be removed by discontinuing, or entering a nolle prosequi, as to such as ought not to have been joined. And the same rule has been recognized by this Court in Redington v. Farrar et al., 5 Greenl. 379. There is, however, an exception to the rule, which is thus laid down by Sergeant Williams in note (2) to Salmon v. Smith, 1 Saund. 207: “If in such actions the de- fendants sever in their pleas, as where one pleads some plea which goes to his personal discharge, such as bankruptcy and the like, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others.” But it has been ruled at nist prius, in two English cases, Chandler vy. Parkes et al. and Jaffrey v. Freebain et al., cited for the de- fendant, that a plea of infancy is not within the exception. In Gibbs v. Merrill, 8 Taunton, 307, the Court seem to incline to 240 INFANCY. the same opinion. But in Burgess v. Merrill, 4 Taunton, 468, which turned upon the same facts, Mansrrexp, C. J., by whom the judgment of the Court was delivered, says no cases are found decided by the Courts upon consideration upon this point. He then adverts to the two nist prius cases, and decides that the action may be brought against the adult contractor only, over- looking the promise of the infant, which he considers as void. But we have cases upon this point in this country, where the contract of an infant is regarded not to be void, but voidable, settled upon consideration. -In Hartness 2. Thompson, 5 Johns. 160, the Court held that where one of several defendants, in an action of assumpsit, pleads infancy, or gives it in evidence at the trial under the general issue, the jury may find a verdict for the infant, and proceed to judgment against the others. The same question was presented to the Supreme Court in Massachusetts, very soon after our separation, when the opinion of that Court is to be regarded as high evidence of the law of both States. Woodward v. Newhall et al.,1 Pick. 500. Parxer, 0. J ., Speak- ing for the Court in that case, goes into an examination of the English authorities; and he holds that neither reason, justice, nor principle, require that the plaintiff should be turned round to a new action, where the objection of infancy is interposed by one of the defendants. The Chief Justice refers to the case of Tappan et al. v. Abbot et al., decided to the same effect by that Court, before the separation ; and be cites with approbation the New York case before referred to. In Tuttle v. Cooper, 10 Pick. 281, Saw, C. J., after citing the English nist prius cases, says a different rule has been adopted in New York and in Mas- sachusetts, as an exception, however, to the more general rule which is recognized in both States, in conformity with the English practice. The case of infancy appears to us to fall within the rea- son of the exception, as much as that of bankruptcy. It secures to the infant the full enjoyment of his privilege. The objection is purely technical. If Lord Kenyon and Lord ELLENBOROUGH. distinguished as they were among English jurists, have unneces- sarily narrowed the exception, we are under no obligation to follow their example. The common law of both countries is derived from the same source. But the evidence of what it is, which is authoritative here, is to be found in our own judicial decisions. It should be remembered that every member of the CUTTS v. GORDON. 241 Court by whom the judgment in Woodward v. Newhall was pronounced, had been called to the bench many years before the erection of Maine into a separate State. If not then our Court, it had been a short time before. The law of both States was the same.' If we hold the law to be otherwise here, it must be because we are satisfied it was erroneously declared in Massa- chusetts. But appreciating as we do the reasons upon which that decision was founded, and sanctioned as it is by the authority of the Supreme Court of New York, we are of opinion that it should be regarded also as the law of this State. It is insisted, that, if the action may be sustained against other defendants, the plaintiff should be holden at once to discontinue, or enter a nolle prosequi against the infant, as soon as the defence of infancy is set up; but if he elects to try that question, and it is found against him, it shall defeat the whole action. It is the province of the jury to pass upon the: facts in controversy, and of the Court to enter such judgment as is warranted by their verdict. In general, in assumpsit, if they find one defendant did not _promise, no judgment can be rendered against either. But if they find that one defendant made no binding promise, by reason of infancy, this forms an exception to that rule, and the promise of the others remains, notwithstanding, binding upon them. Why should the plaintiff be precluded from trying that question? The protection of the infant does not require it. A nolle prose- qui is justified and entered, because the objection of infancy is admitted. If tried, the fact is found., In either case it appears from the record why judgment is entered for one defendant for his costs, and in favor of the plaintiff against the others. The proof must conform to the declaration; but the plaintiff is not required to prove all that he avers. If one defendant escapes on the ground of infancy, the plaintiff is entitled to judgment if he proves the alleged promise made by the other defendants. Of this opinion were the Supreme Court of New York; and we per- ceive no sufficient reason to question its correctness. Upon the whole, the judgment of the Court is that the presiding judge of the Common Pleas should have instructed the jury, as requested ; that they might find for the infant defendant, and for the plaintiff against the other defendant. Exceptions sustained. See next case and notes. 16 242 INFANCY. Sg NO Burczss v. MERRILL. ; (4 Taunt. 468. Court of Common Pleas, June 3, 1812.) ‘Infancy a good Replication to Plea of Non-joinder of an Infant Defendant. — If ‘one of two partners is an infant, the holder, of a bill accepted by both partners may declare on it as accepted by the adult only, in the names of both; and, if the defendant pleads in abatement that the other partner ought also to be sued, the plaintiff may reply his infancy, and it is no departure. MansrFIELD, ©. J. This is an action brought by the plaintiff against the defendant Merrill on a bill of exchange. The decla- ration states that one, John Gibbs, according to the custom of merchants, made a bill of exchange and directed it to the defend- ant, under the name of Messrs. Merrill and Le Blond; and that the defendant accepted the bill under the name of Merrill and Le Blond. The defendant pleaded in abatement that the prom- ises, if made, were made by the defendant and Robert Le Blond jointly, and not by the defendant solely; and that Robert Le Blond is still alive. The plaintiff replied that Robert Le Blond was an infant; and the defendant demurred to the replication, and the demurrer was argued. The same cause once came before us in another shape,! and many cases were cited on the doctrine (which I never could understand) that the corftracts of infants were voidable only, and not void ; and it was given in evidence that Le Blond had‘ not avoided it. The cases are not intelligible, nor reconcilable to common-sense. It is said in some of the cases, the infant may avoid the contract by pleading; that is, he pleads it is not his contract. Now how is that a contract which does not bind a man? it is inseparable from the idea of a contract that it should be binding. There is a famous case in 2 Stra. 938, Holt v. Ward Clarencieux, wherein the consideration of a promise of marriage was a promise to marry made by an infant. The distinction laid down is intelligible enough, that the infant may confirm contracts which are for his own benefit. But 1 See Gibbs v. Merrill, 8 Taunt. 307. BURGESS v. MERRILL. 243 all that doctrine does not apply here. If an infant forms a part- nership with an adult, he holds himself forth to the world as not being an infant; he practises a fraud on the world; and it does not lie in the mouth, as the phrase is, of an adult, who combines with him in practising this fraud, to avoid his own contract by saying his partner is an infant, and incompetent to make a con- tract. It is an extremely familiar doctrine, resulting upon all deeds and instruments, that they operate to form a contract according to their legal effect; this, therefore, is a binding con- tract as to the adult, though void as to the infant. And it is extremely proper to say, that the plaintiff may safely overlook the privity of the infant, as to whom the contract is nugatory, and may describe it as a contract made by the adult contractor only. No cases are found decided by the Courts, upon consider- ation, on this point. But ina case in 3 Esp. 76, Chandler v. Parkes & Danks, where the plea pleaded was the general issue by Parkes and infancy by Danks, the plaintiff entered a nolle prosequi as to Parkes, and continued his action as to Danks. Lord Kenyon, C. J., said the plaintiff should have discontinued and newly sued Parkes, and nonsuited him. Lord ELLENBoR- ovcH, C. J., has followed the same doctrine, that the plaintiff, , having declared on a joint contract, could not convert it to a sole contract by discontinuing against one of the contractors, but that he ought to have declared on it as a sole contract from the beginning. We are of opinion, therefore, that the demurrer must be over- ruled, and that judgment must be for the plaintiff, and that the action is well brought against the adult only. Judgment for the plaintiff. The doctrine of the case of Cutts v. Gordon seems well settled in the United States. _ See, besides the cases therein cited, Barlow v. Wiley, 3 A. K. Marsh. 457; Allen v. Butler, 9 Vt. 126 ; Cole v. Pennell, 2 Rand. 179; Wams- ley v. Lindenberger, id. 478. In such a case the plaintiff may enter anolle prosequi against the infant, and proceed to judgment against the other defendant. See Woodward v. Newhall, 1 Pick. 500; Kirby v. Can- non, 9 Ind: 871; Mason v. Dennison, 15 Wend. 66; Ex parte Nelson, 1 Cow. 417. See also Britton v. Wheeler, 8 Blackf. 31; Robertson v. Smith, 18 John. 478. , So where, in an action on contract, the defendant pleads the non-joinder of his copartner as defendant, areply that such copartner is an infant is bad on demurrer. Slocum v. Hooker, 13 1 But see Johnson v. Pie, and notes to Gilson v. Spear (ante, p. 200 et seq.). 244 Barb. 586 (reversing s. c. 12 Barb. 563), where the cases are fully collected and considered. See also Butler v. Morris, 1 Bosw. 833; Hyde v. Van Valkenburg, 1 Daly, 418. And an action brought against the adult alone, the declaration setting forth the execution of the note in the firm name, and alleging that the partner omitted to be sued, was, at the date of executing said note a minor, and hence not liable on said note, by reason whereof the said adult became liable to pay the same, is badly brought, the con- tract of the infant being voidable only, and not void, and a demurrer to the declaration was sustained. Wamsley v. Lindenberger, 2 Rand. 478. Seealso 1 Am. Lead. Cas. (4th ed.) 250. The doctrine in England, however, is admitted to be otherwise. Burgess v. Merrill, 4 Taunt. 468 (ante), was a case where a bill of exchange had been . accepted by the firm of Merrill & Le- Blond. LeBlond was an infant, and Merrill was sued alone. He pleaded in abatement the non-joinder of LeBlond, and the plaintiff replied that LeBlond was an infant; to which replication the defendant demurred, and judgment was rendered for the plaintiff. The same INFANCY. question was raised by the pleadings, and in the same form as in Slocum ». Hooker, 13 Barb. 536; but the action was upon a different kind of contract, and the case seems to go upon the ground that the contract was void. This case was recognized also in Con- nolly v. Hull, 3 McCord, 6. See also Boyle v. Webster, 17 Q. B. (Ad. & E. n. 8.) 950, where Burgess »v. Merrill is approved. In this case, in an action against two upon joint prom- ises, defendants pleaded severally. Both pleaded non assumpsit, and one infancy. The plaintiff in answer to the latter plea admitted on the record that he could not deny the infancy, and entered a nolle prosequi as to the de- fendant pleading it, but went to trial against the other ; and it was held that he could not recover agajnst this last, his admission on the record being con- clusive evidence that there was no joint promise. The English practice in such cases seems to be, after infancy pleaded, to discontinue, and sue the adults alone, omitting the infant altogether; or to sue the adults alone in the first instance, and to the plea of non-joinder reply infancy, as in Burgess v. Merrill. CAGE v. ACTON. 245 oT COVERTURE. CaceE v. ACTON, (La. Raymond, 515; 8. c. under the title Gage or Gray v. Acton, 1 Salk, 825; /12 Mod. 288; Com. 68; Jenk. 166; Carth. 511; Lilly, Entr. 214; Cases, B. R. 288; Holt, 309. Court of King’s Bench, Hilary Term, 1699.) Effect of Intermarriage of Contracting Parties. — Where a bond is given to a _ feme sole with a condition to pay money to her if she marry and survive the ' intended husband, it is not discharged by her marriage with the obligor. TuHE plaintiff brought an action of debt for rent against the defendant as administratrix to her husband, and_he declared upon a demise made to the intestate rendering rent; and for rent arrear in the life of the intestate this action was brought, &c. The defendant pleads that the intestate in his lifetime, in considera- tion of a marriage to be soleninized between the said intestate and the defendant, became bound to the defendant in a bond of 2,0001., solvendis to the defendant cum ad -inde requisitus esset, upon condition that, if the defendant should survive the intestate, if then the intestate should leave to the defendant 1,000/., or if his heirs, executors, or administrators should pay to the defend- ant 1,0002. within, &c., after the death of the intestate, that then the bond should be void; and then the defendant avers that the marriage afterwards took effect ; she avers also the death of the intestate, and that he had not left her 1,000/., nor had his heirs paid it to her; and then she shows that she herself took out let- ters of administration of the goods, &c., of the intestate, and that assets to the value of 2507. came to her hands, which she retains in part of satisfaction of the money due by this bond, and that, she hath not assets ultra, &c. The plaintiff demurs. This case was argued several times at the bar by Mr. Conyers and Mr. Sergt. Levine, for the plaintiff, and by Mr. Carthew and Mr. Northey, for the defendant. And now the judges pronounced their opinionsin solemn arguments. And two questions were made in this case: 1. If debt for rent was not of a higher nature than debt due upon bond: for if it were, then this plea could not 246 . COVERTURE. be good ; because the administratrix cannot retain the assets for the debt due by the bond, when there is a debt of a higher nature, viz., a debt for rent, owing by the intestate. 2. Admit- ting that this retainer is well pleadable in bar in respect of the nature of the debts; yet, whether there is here any debt due to the defendant upon this bond, in regard that there was an extin- guishment of it upon the intermarriage or not. And, as to the first point, the whole Court was of opinion that a debt due by bond and a debt due for rent were of an equal nature, and con- sequently that this plea in that respect was well enough. But Turton and GouLp, JJ., did not give their reasons why they were of that opinion, because they thought it a clear point; save . that GouLp, J., said that he knew it twice adjudged so in the Common Pleas. But Hoxr, C. J., answered to the objection made by the counsel at the bar — viz., that debt for rent sounds in the realty, and therefore is of a higher nature than debt due upon bond, and for support of this assertion Newport v. Godfrey, 2 Vent. 184, was cited — that rent due upon a parol demise is a debt equal to a debt due upon bond, and that an executor or ad- ministrator may plead a retainer ‘for such rent, in bar of an action ‘upon a bond, &c., et sic vice versa; and that the case in 2 Vent. 184, does not impugn this opinion, for there the defendant exec- utor pleaded several bonds due from the testator, in bar of an action for rent upon a parol demise (for it must be intended to be by parol, it not being expressed to be by deed), and that he retained towards satisfaction, &c.; and the plea was overruled. But that proves only that they are in equal degree; for in the said case it could not be pleaded by the executor, unless he had paid them before the action brought, or that judgment was obtained against him upon them; and therefore for that reason the plea was ill. But he might have pleaded a judgment against himself upon them, or payment, in bar of the said action; but that does not prove any superiority, but only that a specialty is equal to a debt in the realty. And though in this case the debt arises as well in the realty as by his specialty, yet they will not make any alteration; being a difference only in number, and not in quality. And therefore he was of opinion, notwithstanding this objection, that the plea was well enough. But as to the sec- ond point the Court was divided: viz., Turton and Goutp, JJ., were of opinion that this debt was not extinguished by the CAGE v. ACTON, 247 intermarriage, and therefore that the plea was good, and judg- ment ought to be for the defendant; but Hott, C..J., held, that this debt was extinguished, and therefore that judgment ought to be given for the plaintiff. And Goutp, J., argued for the de- fendant in this manner following: 1. He said he agreed that the wife before the marriage might have released this bond by a lease of all actions, because she had the right of action in her. 2. That by the intermarriage all contracts for debts due in pra- senti or in futuro, or upon contingency, which may become due during the coverture, are extinct. 1. Because the husband and wife make but one person in law. 2. Because the action is sus- pended. 11 Hen. VII. 46; Co. Litt. 1645; 8 Co. 1364; Dyer, 140; Cro. Car. 373. 3. That, if there was an express agreement that they should not be released by the intermarriage, it would be void, because it would be inconsistent with the state of matri- mony,—the husband and wife being but one in person in law, — and so there is no debtor and debtee, and therefore the debt is extinct in such case, notwithstanding such covenant. 4. He said that he was at the beginning, when the case was first argued at the bar, of opinion that this bond was extinct by the- intermarriage. But now, after mature consideration, he was of opinion that it might subsist by the rules of law; for the law does not love that rights should be destroyed, but, on the contrary, for the supporting of them invents notions and fictions, as abeyance, &c. Litt. sect. 646; Co. Litt. 342. Now in this case the express agreement of the parties created a right, and such a right as is not inconsistent with the rules of marriage, since the bond here ought not to have any effect till after the death of the husband ; and therefore the law will not work a release, especially since there are two rules of law which would be broken by the destruction of this agreement. 1. Modus et conventio vineunt legem; 2. That the law will not work a wrong. But since a suspension of rights in personal duties does not always work an extinguishment, as appears by the cases hereafter put, he was of opinion that this bond was suspended only during the coverture. As 8 Co. 186 a; Co, Litt. 264 6, the wife, executrix of the debtee, takes the debtor in mar- riage; the debt is not released, but the right is suspended pro tempore. And so here the law preserves it from extinguishment, by interposing and taking it into its custody, for the making of the agreement of the parties effectual. If the obligee make the 248 COVERTURE. obligor executor, because it is his own act it is a release of the ‘debt ; but otherwise if administration was committed. Needham’s case, 8 Co. 186; Dorchester v. Webb, Cro. Car. 878. Besides that 26 Hen. VIII. 7 8, proves that the law does not absolutely work an extinguishment ; for it is held there that, if there be a divorce, the wife shall have her goods again; and Fitzherbert and Norwich put the case of a bond by the husband to the wife before the coverture, and said.that, though it was in suspense during the coverture, yet after the divorce the wife might sue him upon it. So here he agreed that this debt was qualified and remeditess during the coverture. And (by him) there is no solid difference between the cases of Clark v. Thompson, Cro. Jac. 571, and Smith v. Stafford, Hob. 216; Hutt. 17; Noy, 26; Hetl. 12, ofa promise made by the husband to the wife, before the coverture, to leave her 100/. at his death, and this case of a bond; for, as Hobart there observes, it is a promise presently, though futurely to be performed, and has a present lien. And therefore as the promise was held to be in suspense, so here the debt is suspended during the coverture, for preserving an honest agreement, which otherwise would be destroyed. For the difference taken in Noy, and there said to be | by the Court, viz., that it would be otherwise in case of a bond, no such matter is reported in Hobatt or Hutton; and therefore he’ could not say how far the said point of the bond was under their consideration. It is said in Hutton that the law will not work a release contrary to the intent of the parties; because the marriage, which is the cause, will not destroy that which itself creates; which is the same in the case of the bond. And in Litt. 32, the same with Hetl. 12, the promise is said to be suspended by the marriage, which he said is done here in the case of the bond. And Hobart does not seem to make any difference between a promise and a bond; and he could not believe that there is any ; and therefore he was of opinion that the plea was good, and that judgment ought to be given for the defendant. Turron, J., argued much to the same purpose. And he agreed that, if this bond had been given for a precedent debt, it had been destroyed by the marriage, which had been a release in law. But a release in law will never destroy the provision that was intended for the wife by the express agreement of the parties. But such releases shall be taken strictly. And Hutt. 17,18; Plowd. 184; Hutt. 94; CAGE v. ACTON. 249 Hob. 10; Moor, 855, were cited by him to prove it. And he said that this debt, being in contingency during the coverture, could . not be released ; for the bond and condition make but one deed; and upon oyer of the condition it appears that, if the wife did not survive the husband, nothing would be due to her; and therefore, being a contingency, and only a bare possibility, could not be released. As 5 Co. 70 6, Hoe’s case. A man cannot release to the bail in the King’s Bench before judgment against the principal. And, therefore, if it could not be released by a release in fact, no more could it be released by a release in law. And a bond cannot be sued until the condition is broken, which in this case could not be during the coverture; and therefore this debt is qualified. Then he cited the aforesaid cases cited by Goutp, J., concerning the promises; and also 2 Sid. 58, the roll of which he had seen, and which is entered Mich. 1657; Rot. 629, Sup. banc, Hoblin v. Lupart, where the case was thus: Debt was brought upon a bond by Hoblin, a stranger, against Lupart, of which the condition was, that Lu- part should perform covenants in certain marriage articles, in which Lupart covenanted with his wife, before marriage, ‘to leave to her, &c., if she should survive him, and, if he should survive her, that he should pay to the executors of his wife, 4007. Lupart pleaded there covenants performed. Hoblin replied, and assigned a breach, that he had not paid the 400/., &c.; and judgment was entered for the plaintiff, as appears upon the record. And this case he urged as strong in point, together with the arguments and reasons therein used, in 2 Sid. 58. And as to the objection that this was debitum in presenti, &c., he answered, that this was rather sound than substance. And he cited Litt. 87, that by a release of all demands a bond with condition to perform cove- nants shall not be released before the covenants are broken; and yet it is debitum in presenti as much there as in this case. But a release of the covenants would discharge the bond. Dier, 57. And he cited the words of Henden, in Littleton’s Report, that is not chose in action, but the possibility of a chose in action. And he relied upon the case of Hancock v. Field, there cited, as a case in. point. [Butsee Cro. Jac. 170; 2 Roll. Abr. 407, that the said case was an action of covenant, and not debt upon a bond with condition to perform covenants, as it is there cited.] And there- fore he agreed with GovuLp, J., that judgment ought to be given for the defendant. 250 COVERTURE. Hout, C. J., argued ¢ contra, for the plaintiff, viz., that the bond was extinguished by the intermarriage. And the founda- tion of his opinion was, because it is an immediate debt due from the sealing of the bond. Litt. sect. 512. And the reason which Coke, in his comment upon Littleton, 292 6, gives why a release of all actions before the day of payment will discharge it, though no action can be maintained upon it until after the day of payment, is because it is a chose in action. And then if it is a present debt, the question will be, whether the condition will make any alteration. The nature of the condition, therefore, ought to be considered; and the condition here is a subsequent condition, and therefore cannot diminish, alter, or qualify the debt; but the debt will have the same existence that it had be- fore. And in its nature it cannot be a subsequent condition, unless there be precedent debt to which it was annexed. And the difference is put in Hoe’s case, 5 Co. 70 6, as to the matter of the release, between a duty certain with a condition subsequent, and a duty uncertain to be reduced to a certainty upon a condition precedent; the first is releasable before the day, the second not. And to say here that this is not a present debt is expressly con- trary to the words of the bond, viz., that the obligor binds himself in 200. to be paid when he should be required. The condition | goes in defeasance, but does not suspend the debt; for that would make the condition repugnant. And if the breach of the con- dition were to raise the debt, it ought always to be shown in the declaration, which is against constant experience; and yet it ought necessarily to have been shown,.if it raised the debt, as they always do in a case of a condition precedent. And as to the objection that the defendant might have oyer of the condi- tion, and then it becomes part of the declaration, he answered, that that did not compel the plaintiff to show a breach of the condition; which nevertheless ought to be done, if the breach of the condition was necessary to raise the debt. But the rea- son why there is oyer of the condition is, because it is part of the same deed; but that does not drive the plaintiff to alter his dec- laration. If the defendant says nothing, nor demurs, the Court must give judgment upon the bond, without having any regard to the condition ; but if it appears upon the whole matter that the condition is not broken, the Court cannot give judgment for the plaintiff. Then, since it is an immediate debt, by the inter- - CAGE v. ACTON. 251 marriage it is discharged: 1. Because the husband cannot be indebted to his wife, for they are but one person in law. 2. The husband might pay the money due upon the bond, without hav- ing respect to the condition, and that would discharge the bond (11 Hen. IV. 48), which, since he cannot do to his wife, such pay- ment being impertinent, as if the right hand should pay to the left, for this reason it is released. 8. The intermarriage is an actual payment, because the husband is entitled to receive the money. And when the person who ought to pay the money is the same with the person who ought to receive it, it is in law a payment. Suppose a stranger, who was bound to the wife dum ‘sola, would pay the money, he ought to pay it to the husband ; then if the husband be debtor to the wife dum sola, and would pay, &c., after marriage, he must pay himself. Ifa stranger had been bound to the wife in a bond with the same condition as here, a release by the husband would have discharged the bond. Co. Lit. 264 6; Woodward v. Darcy, Plowd. 184. The law- books do not make any distinction between bonds in which there is a precedent duty, and others: et ubi lex non distinguit, nec judices distinguere debent. And therefore he held that the bond was discharged. If this had been a single bill, statute, or recog- nizance, with a defeasance of the same purport as the condition of this bond (he said), that without doubt the intermarriage would have released them: yet the statute, &c., would have been as much qualified by the defeasance, as the bond here by the condi- tion ; and the agreement of the parties had been the same in both. The only difference is that, in the case of the bond, the defea- sance is contained in the same deed, and therefore, the deed being in Court, one may have oyer of the condition; in the other case the defeasance is in the hands of the defendant, being in another deed, and therefore there cannot be oyer of it; but yet in both cases the defendant ought to plead the condition or defeasance, and therefore in both cases the law is the same. Objection: If the executor of the obligee marries the obligor, the debt is not extinguished. Answer: That depends upon different reasons. For, 1. The difference of the rights there preserves the debt from extinguishment. As where a man has a term as executor, and purchases the inheritance, the term is not extinguished. Co. ‘Litt. 264 6, 338 6. 2. If that should be an extinguishment, it would be a wrong to creditors, and amount to a devastavit, which 252 COVERTURE. an act in law will not do.. 8 Co. 186 a. And things shall be extinguished between the parties, which yet shall remain, and have existence as to strangers. As if a tenant for life grants a rent-charge, and then surrenders to the reversioner ; or if a man who has a rent in fee acknowledges a statute, and then releases to the terre tenant, — the estate for life in the one case will con- tinue as to the grantee of the rent, and the rent in the other case as to the conusee. Butif the husband pays debts of the testa- tor with his own money, amounting to the sum in which he was bound to the testator, that will amount to a release of the debt; because it is an honest payment, and prevention of a wrong. Objection: The intermarriage will not destroy that which itself supports. Answer: That the bond is not supported by. the marriage, but by its own efficacy. The bond was made in con- sideration of an intended marriage, but it had its full force and effect instantly upon the sealing and delivery. Objection: That the law will not do wrong. Answer: That this was the act of the wife herself, and therefore she is not injured. And this is no more than that she did not well understand what she was going to do, and there is no third person in the case. Objection: 26 Hen. VIII. 7 6, that a wife after a divorce shall have her goods again, and the bond would revive. Answer: He agreed the said case ; because the divorce, being a vinculo matrimonii, by reason of some prior impediment, as precontract, &c., makes them never husband and wife ad initio. But if the husband had made a feoffment in fee of the lands of his wife, and then the divorce had been, that would have been a discontinuance as well as if the husband had died; because there the interest of a third person would have been concerned. But between the parties themselves it will have relation to destroy the husband's title to the goods. And it proves no more than the common rule, viz., that relation will make a nullity between the parties themselves, but not among strangers. And as to the objection made by Mr. Justice Turton, that there is nothing here to be released, because it is but a contingency, and a bare possibility, he answered, that that avails nothing, because a release of the condition will not release the bond, but they must release the bond itself. He agreed also the cases of Smith v. Stafford and Clark v. Thomp- son,! that the intermarriage would not extinguish such a promise, 1 Hutt. 17; Noy, 26; Cro. Jac. 571. CAGE v. ACTON. 253 though Hobart is of a contrary opinion. - But there is a difference between the said cases and this present case, because the promise must raise a future duty upon a contingency; so that there i ig nothing due there, nor ever was; and it isa question whether there ever will be. In an action upon the promise, all the special matter must be shown in the declaration, but otherwise in the ease ofa bond. Pleading, though it does not make the law, yet is good evidence of the law, because it is made conformable to it. If, therefore, in the one case there is no need to show a breach, and in the other one must show it, that proves that in the case of the bond the duty arises immediately, and is defeasanced by the condition ; but in the other case it arises upon the performance of the condition, which ought to precede it; and consequently the cases are as different as a condition precedent and subsequent. He said also that there is no difference between the case of Lupart v. Hoblyn, which is covenant (2 Sid. 58), and the case of a promise. For in covenant one must show the special matter and assign a breach, as one ought in that of a promise. And a release of all demands will not discharge the covenant before it be broken, as it will not discharge the promise before the time of performance ; but it will discharge a bond before the condition broken ; but the lien of the bond, if it was upon condition precedent, would be of the same nature. If a stranger promised to a woman that, in consideration that she would marry such a man, he would pay her so much if she survive her husband, the husband could not have released this promise, because nothing could become due during the coverture ; but when the wife has a duty which may become due during the coverture, the husband may discharge that, according to Lampet’s case, 10 Co. 46. The reason given in Clark v. Thompson, 2 Cro. 571, why the marriage of the prom- isor with the promisee is no discharge of the promise, viz., be- cause the husband could not release it, ought to be understood, of a promise made by a stranger, and those words ought to be added, as appears by the reason of it; but in case of such a bond the husband might release it. In Belcher v. Hudson, Yelv. 156, it is insinuated as if the husband might have released such a promise made bya third person ; but the book there is nonsense. And in the same case, Cro. Jac. 222, the only question is, there, whether it be released by a release of all demands, and no con- sideration had of the case upon the point of the marriage. Noy, 254 COVERTURE. in his report of the case of Smith and Stafford, reports that it was said by WarBurton that it would be otherwise in the case of a bond, and that the whole Court agreed it, and nevertheless they resolved otherwise in the case of a promise ; which proves that it must necessarily be that they grounded themselves upon the difference between a bond and a promise, or otherwise their resolution will be contradictory. And one must consider the whole case, and not disallow the distinction and agree the reso- lution ; for that would be to agree the conclusion, and deny the premises. Objection: The intent and agreement of the parties. Answer: That the intent of the parties cannot alter the rules of the law, and make an immediate present lien not to have any efficacy. Besides that, he said, in such a case as here, the Chan- cery will not give relief, as appears in Lady Darcy and Chute, Chane. Cas. 21. Much less ought the King’s Bench, upon equi- table considerations, to give judgment against the rules of law. And therefore, for these reasons, he was of opinion that judgment ought to be given for the plaintiff. But judgment was given for the defendant by the other two judges. Afterwards error was brought upon this judgment.) _ As a consequence of the legal unity of husband and wife, whether due to toa third party by a husband before his marriage, is not extinguished by the the merger of the wife’s existence in ~ her husband, or to her being sub po- testate viri, contracts made directly between them previously to entering into the married state, except where the contract is to be performed after the coverture is ended, as in the principal case of Cage v. Acton, are at law ex- tinguished by their intermarriage. 2 ‘Story’s Eq. Jur. §§ 1367, 1870; Boat- right v. Wingate, 3 Brev. 423; Smiley v. Smiley, 18 Ohio St. 543; Burleigh v. Coffin, 22 N. H. 118; Chapman». Kel- logg, 102 Mass. 246; Abbott v. Win- chester, 105 Mass. 115. See also Cannel v. Buckle, 2 P. Wins. 242 (post); 1 Salk. 306. But in Russ v. George, 45 N. H. 467, it was held that a negotiable note given mere fact’ of its purchase from such third party by the wife after marriage, with money belonging to her before marriage, not reduced to possession by the husband ; and that one to whom the wife has, subsequently to her purchase of the note, transferred it with her hus- band’s assent, may maintain an action upon it against the husband, such as- sent being inferrible from circumstan- ces, and ordinarily a question of fact for a jury. See, however, Chapman v. Kellogg, 102 Mass. 246, where a note made by the wife to a third party while sole, and by him indorsed to the husband after marriage, was held to become a nullity, and incapable of revival by transfer by the husband back to the 1 It is probable either that this judgment was affirmed on error, or that the plaia- tiff in error deserted his writ of error. See remarks of Butxer and Gross, JJ., in Milbourn v. Ewart, 5 Term, 375, and of the Lord Chancellor in Honner v. Morton, 3 Russ. 88 (post). CANNEL v. BUCKLE. payee in pursuance of the previous agreement to take it back in case of difficulty between husband and wife. The doctrine of the principal case of Cage v. Acton is approved in Mil- bourn », Ewart, 5 Term, 875, and may be regarded as well settled at law. See Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83; Mitchel v. Mitchel, 4 B. Monr. 380; Dougherty v. Snyder, 15 S. & R. 91; ‘Gibaon v. Gibson, 15 Mass. 111; 2 Story’s Eq. §§ 1370, 1871. See also Willes, 188; Vogel v. Vogel, 22 Mo. 161. As to the rule in equity, see Cannel v. Buckle (infra). But the contract, to be extinguished by intermarriage, must be entered into in their own right; and, therefore, the intermarriage of an administratrix with the obligor in a bond payable to her as administratrix, does not extinguish the debt, but merely suspends the right of action during coverture and while she gv 255 continues administratrix. See Cage v. Acton (supra); King v. Green, 2 Stew- art, 183; 1 Salk.-306. And in Bemis v. Call, 10 Allen, 512, it was held that where a woman mort- gaged her land to secure the debt of a third person, no personal liability ex- isting on her part to pay the mortgage debt, and she being seised only of an equity of redemption therein, her sub- sequent marriage to the mortgagee did not extinguish the mortgage; and that after his death his legal representatives might enforce it. The dictum of Hott, C. J., in Cage v. Acton (ante), as to the husband’s power to release the wife’s contingency or bare possibility, &c., seems erro- neous, and has been since disapproved. See Milbourn v. Ewart, 5 Term, 384; Rogers v. Acastor, 14 Beav. 445, 451; Honner v. Morton, 3 Russ. 87 (post).. CANNEL v. BUCKLE. (2 Peere Williams, 243; s. c. 2 Eq. Ca. Abr. 23, pl. 24; 136, pl. 1. High Court of Chancery, Mich. Term, 1724.) Ante-nuptial Agreements between Husband and Wife, in Contemplation of Mar- riage, sustained in Equity, though void at Law. — Feme gives a bond to her intended husband, that, in case of their marriage, she will convey her lands to him in fee; they marry; the wife dies without issue, and then the husband dies; the bond, though void at law, yet is good evidence of the. agreement in equity; and the heir of the husband shall compel a specific performance _ against the heir of the wife. - A FEME SOLE was seised in fee of land of about 10/. per annum, and, designing to marry, agreed with her intended husband, that she upon the marriage would convey her lands to the husband and his heirs; and for that purpose, previous to the marriage, she gave a bond of 200/. penalty to the intended husband, in which the intended marriage was recited; and the condition was that, in case the marriage took effect, she would convey all her said 256 COVERTURE. lands to the husband and his heirs. The marriage took effect, and there was issue of the marriage, and the wife made her will reciting her said bond, and devised all her land to her husband in fee, and died. The issue of the marriage died without issue ; after which the husband enjoyed the land during his life, and on his death the heir of the husband brought a bill against the heir of the wife, to compel him to convey the lands of the wife to the heir of the husband. Oss. This bond given by the wife became void upon the intermarriage because it was then! suspended ; and a personal action once suspended is extinct; besides, wherever no action lies at law to recover debt or damages, there no suit in equity lies to compel a specific performance, which specific performance is given in equity only in lieu of damages; and 1 Chan. Cases, 21 (Lady Darcey’s case), was cited, proving that where a woman, on a treaty of marriage, agrees with a man, or a man witha woman, there the subsequent intermarriage determines the agree- ment. Lorp CHanceLtor. The impropriety of the security, viz., a bond from a woman to a man whom she intends to marry, or the inaccurate manner of wording such bond, is not material; for it is sufficient that the bond is a written evidence of the agreement of the parties, that the eme in consideration of marriage agrees the man shall have the land as her portion; and this agreement being upon a valuable consideration, shall be executed in equity. It is unreasonable that the intermarriage, upon which alone the bond is to take effect, should itself be a destruction of the bond; and the foundation of that notion is that, in law the husband and wife being one person, the husband cannot sue the wife on this agreement; whereas, in equity it is constant experience that the husband may sue the wife, or the wife the husband, and the hus- band might sue the wife upon this very agreement in the prin- - cipal case.?_ Neither is it a true rule, which had been laid down by the other side, that, where an action cannot be brought at law on an agreement for damages, there a suit will not lie in equity for a specific performance, as is plain from this case: — Suppose a Jeme infant seised in fee, on a marriage with the consent of her 1 V., Gage v. Acton, Com. Rep. 67, and 1 Salk. 825; s.c. Acton v. Peirce, 2 Vern. 480. 2 See 2 Story’s Eq. Jur. § 1370 and notes. RIPPON v. DAWDING. 257 guardians, should covenant in consideration of a settlement to convey her inheritance to her husband; if this were done in con- sideration of a competent settlement, equity would execute the agreement, though no action would lie at law to recover dam- ages.! But in regard this bond was a very stale one (being given so long since as in 1678), and the husband had for so long a time omitted to sue upon it in equity, the Court ordered a trial at law to see whether this bond was executed or not, and all other mat- ters to be respited till after the trial.? The doctrine that ‘‘ an agreement, entered into by husband and wife be- fore marriage, for the mutual settlement of their estates, or of the estate of either upon the other, upon the mar- riage, even without the intervention of trustees, will be enforced in equity, ‘though void at law,” seems well settled; ‘*for equity will not suffer the intention of the parties to be defeated by the very act which is designed to give effect to such a contract.” 2 Story’s Eq. Jur. §§ 1370, 1871, 1880, and notes, where the cases are fully collected ; Schouler's Dom. Rel. p. 266. See also thé next two cases. Rippon v. Dawnine.®. (Ambler, 565. High Court of Chancery, Nov. 22, 1769.) Ante-nuptial Contract between Husband and Wife, to allow Wife to dispose of her Freehold Estate by Deed or Will, sustained in Equity. — Husband, before mar- riage, gives bond to enable his intended wife to dispose, by deed or will, of her freehold estate. She devises during coverture. Her heir at law is bound, and shall convey to the devisee. DorotuHy , widow, was seised of a freehold estate; and, previous to her marriage with Deeping, her second husband, a “bond was entered into by Deeping, with a condition empowering 1 As to the case put by Lord MaccixsriExp, of the feme infant, vide Lucy v. Moor, 8 Bro. P. C. 514; Price v. Seys, Barnard. 122; Seamer v. Bingham, 8 Atk. 56; Har- vey v. Ashley, 8 Atk. 607, 615; Earl of Buckinghamshire v. Drury, 5 Bro. P. C. 570; Durnford v. Lane, 1 Bro. Ch. 106; Williams v. Williams, 1 Bro. Ch. 152; Slocombe v. Glubb, 2 Bro. Ch. 545. Contra, etiam, vide Shaw v. Boyd, 5 S. & R. 812. 2 Reg. Lib. A , 1728, fol. 484. 3 Reg. Minute Book, Mich. Term, 1769; 8. c. Hill, MSS., vol. 8, 429 ; vol. 10, 286 ; vol. 11, 66. Fora note of what took place at the hearing of this cause, as reported in Sergt. Hill’s MSS., vol. 3, 429, see Blunt’s ed. of Ambler’s Ch.-566, note (8). 17 258 COVERTURE. her to dispose of her freehold estate by deed or will, notwith- standing her coverture. No settlement appeared to have been made upon the occasion, nor any other transaction passed but the above-mentioned bond. The wife afterwards by will gives her estate to her younger children in fee. The eldest son being dead, and leaving a daughter, his only child; bill by the younger children against the daughter, to have a conveyance of the estate. And the case of Wright v. Lord Cadogan, in Chancery, after- wards in the House of Lords, was cited as an authority in point. And it was said, the principle upon which that case was deter- mined holds in this case; that is, the performance of the mar- riage agreement, as against the heir at law of the contracting party. On the other side, it was said, that this case differs materially from Wright v. Lord Cadogan. In that case, the legal interest was in trustees; in this, the legal interest remained in the wife, and nothing passed by the devise. That, whatever might have been the case if the wife had made a disposition for a valuable consideration, yet, it being a question between volunteers, the Court will not interfere to compel a performance of the agree- ment. Lord Campen, Chancellor: It is a mistake to call it a question between volunteers.! The agreement was made on marriage, and the wife might have compelled the husband to join with her in a fine. Though the two cases differ, in respect that the wife had only an equitable interest in the one and the legal interest in the other, yet the principle of determination is the same in both; equity follows the law. And, as the Court decreed performance of the agreement in Wright ». Lord Cadogan, which was a trust interest, it will do so in this, which is the case of a legal interest. Therefore decree conveyance, $e. See next case and notes. 1 See Harvey v. Harvey, 1 Atk. 567. BRADISH v. GIBBS. 259 Bravisu v. Gress. (3 Johns. Ch. 528. Court of Chancery of New York, Nov. 9, 1818.) Ante-nuptial Agreement between Husband and Wife, to allow Wife to dispose of her Real Estate by Will, sustained in Equity. Execution of a Power by Will. —A feme covert may execute, by a will in favor of her husband, a power, given or reserved to her while sole, over her real estate. Where the wife, before marriage, entered into an agreement with her intended husband, that she should have power, during the coverture, to dispose of her real estate by will, and she afterwards devised the whole of her estate to her husband, this was held a valid disposition of her estate in equity; and the heirs at law of the wife were decreed to convey the legal estate to the devisee. In April, 1814, the plaintiff and Helen Elizabeth Gibbs entered into a marriage contract ; she being seised in her own right of a valuable real and personal estate, which the plaintiff agreed should be at her disposal, notwithstanding the contemplated mar- riage. Articles of agreement were thereupon made and executed between them, under seal, dated the 20th of April, 1814, reciting the treaty of marriage to be solemnized, and that she was pos- sessed, in her own right, of certain personal estate, described in a schedule thereunto annexed, and might become entitled to other personal property not mentioned ; and that, whereas, by the marriage, the personal property would vest in the plaintiff, and, in case of his decease intestate, would go to his heirs; and that, by the marriage treaty, it was agreed that in case of the death of the plaintiff, leaving her his survivor, without issue, the said personal property should vest in her absolutely, in like man- ner as if no marriage had taken place, —in order, therefore, to carry the said treaty of marriage into effect, the plaintiff, in con- sideration of the marriage, covenanted with the said Helen Elizabeth Gibbs that, if the marriage should take place, and the plaintiff should die, leaving his wife living, without issue by her at his death, then all the personal property described in the schedule and personal property not mentioned therein, of which the plaintiff, by virtue of the marriage, might become pos- sessed, in right of his wife, either by gift, descent, purchase, &c., should, on his decease, vest in her, absolutely, in fee, &. The plaintiff further covenanted, that, if any part or the whole 260 COVERTURE. of the real estate of which she was then seised, and which was mentioned and described in the said schedule, should be sold dur- ing the coverture, the proceeds of such sale, or the amount thereof, should be reinvested in other real estate in her name and for her use ; and that she should at all times during her coverture have full power effectually to dispose of, according to her pleasure, by will, or by any instrument in writing in the nature of and pur- porting to be so, all such real estate as she might at the time be seised of in her own right, either jointly or severally ; and to that end the will, or any instrument in writing purporting to be such, of her, though made and executed during the cov- .erture, should be equally valid as if she, at the time of making thereof, was a feme sole ; and that the plaintiff, his heirs, exec- utors, &c., would do all such acts as might be needful and proper, in law or equity, on his or their part, for carrying the same into effect. The real estate mentioned in the schedule was described as a lot and house in the city of New York, purchased of J. Shaw, and which cost $23,250. The parties, after the execution of the contract, were married, on the 2ist of April, 1814, and lived together until her death in April, 1816. A contract had been entered into in February, 1814, by and on behalf of Helen Elizabeth Gibbs, with J. Shaw, for the pur- chase from him of the house and lot above mentioned; the sum of $750 was paid as part of the purchase, and the residue was agreed to be paid on the delivery of the deed, on or before the 21st of May, 1814; and the balance, being $22,500, was paid by the plaintiff after the marriage, out of the personal estate of his wife, on the 29th of April, 1814; and the deed which had been previously executed by J. Shaw to Helen Elizabeth Gibbs, and delivered ay an escrow to C. W., was delivered by him. The plaintiff and his wife took possession afterwards, and occupied the premises until her death; and the plaintiff has since con- tinued in possession, having, during the life of his wife, expended large sums in improvement. In August, 1815, the wife of the plaintiff, in pursuance of the power reserved to her by the articles of agreement, made her will, in such a manner as would have passed all her real estate had she been a feme sole. The will in substance was, that she revoked all former wills, and gave and devised to the plaintiff, BRADISH v. GIBBS. 261 and his heirs for ever, all her estate, of what nature or kind soever, without reserve, whether real, personal, or mixed, or in possession, reversion, or remainder, and appointed the plaintiff her sole executor. The testatrix died without issue, on the 7th of April, 1816, leaving the said will unrevoked, being then seised of the house and lot in question, leaving two brothers and three sisters her heirs at law. One of the sisters afterwards died, on the 18th of January, 1817. The bill of the plaintiff prayed that the defendants, who are the two brothers and sisters of his de- ceased wife, should be decreed to. execute a conveyance to him of the legal estate in the said house and lot. The answer of the defendants admitted the facts stated in the bill, but denied that the wife of the plaintiff had adequate power to dispose of her real estate in equity by will, so as to vest the title in equity in her husband ; and they averred that the will did not operate in the nature of an appointment to vest the equi- table title in the plaintiff; and that the will being made during coverture, and in favor of the husband, was void as to the house and lot, both at law and in equity. On the argument of the cause, three points were raised for the consideration of the Court: 1. That the power reserved to Mrs. B. by the ante-nuptial con- tract was executed in equity by the instrument purporting to be her last will; and that the plaintiff was, therefore, entitled to a conveyance from her heirs at law, of the legal estate, according to the prayer of the bill. 2. As the real estate in question was paid for out of the per- sonal estate of Mrs. B., it may be considered in equity as a personal estate; and, if so, her will would be a valid disposition of it. 3. That, at all events, the plaintiff was entitled to be reim- bursed the amount he had expended on the real estate in repairs and improvements. Wells, for the plaintiff. Riggs, contra. The CHaNcELLoOR. The question in this case is, whether the plaintiff, by reason of the ante-nuptial agreement and the subse- quent will, is entitled to the aid of this Court, to compel the defendants, who are the heirs at law of the wife, and upon whom the legal title to the premises descended, to convey the same to him. 262 COVERTURE, I shall confine myself to the consideration of this important point; and, as my conclusion will be in favor of the plaintiff, the discussion of the subordinate points will become unnecessary. This is a dry question, resting entirely on the technical rules of equitable jurisprudence ; and I shall be obliged to examine minutely the authorities which are applicable to the subject, and shall endeavor to extract from them the true principle which ought to govern the case. It is settled that a feme covert may execute by will, in favor of her husband, a power given to her while sole over her real estate. In Rich v. Beaumont, 8 Bro. P. C. 308, a treaty of marriage was concluded between the appellant and his intended wife. She then conveyed an estate of which she was seised, in trust, and with the declared intent to suffer a recovery, and that the recovery was to enure to the uses and upon the trusts declared, which were, among others, that the wife should receive the rents and profits for her sole and separate use for life, exclusive of her husband; and if she should leave issue, then, upon trust, that the trustees should convey to such issue, according to her direction by deed or will, and, in default of issue, and in case she survived her mother, then to such uses and persons as she by deed or will should appoint. The recovery was suffered, and the marriage shortly after took place. The wife, during coverture, had a son, and survived her mother and made her will, in which, among other dispositions, she gave to her only son the estate, with a reservation in favor of her husband of one half of the profits for life; she added, that, if her son should die during his minority without lawful issue, that she then devised all her estate to her husband, the appellant in fee; and she directed her trustees to convey her trust estate to such uses and purposes as were named in her will. She also gave all her personal estate to her husband, and made him the sole executor, and died. Her son died in infancy without issue, and the appellant, apprehending that he was, by the will, entitled in equity to the fee of the estate, and to have a conveyance of the legal estate from the trustees, filed his bill, in 1724, against the heirs of his wife, and against the trustees, praying for a conveyance of the legal estate. Lord Chancellor Kine dismissed the bill, on the ground that the appellant’s remedy, if any, was at law. BRADISH ¥v. GIBBS. 263 On appeal from this decree, it was a point assumed that, if the will was a good execution of the power, it was well executed in favor of the husband. The objection was that the power was not well executed by will, because a feme covert’s will of land was, by law, void. The decree was reversed, and an order made that the Court of Chancery take the opinion of the K. B., whether the will was a good appointment of the estate. It, appears that the Court of Chancery ordered a case to be settled for the opinion of the K. B., and we have no further report of the case. But in Hearle v. Greenbank, 1 Vesey, 805, and in Peacock v. Monk, 2 Vesey, 190, Lord Harpwicxs cited the case to prove that a feme covert might execute a power; and it was stated by the counsel, arguendo, in Marlborough v. Godolphin, 2 Vesey, 64, that, in the K. B., where the case was sent, it was held a good appoint- ment. : Though this case was by a very unusual step referred to a Court of law, yet we must understand the decision to have been that the will was a good execution of the power in equity. The case was depending before an equity tribunal, to be decided upon equity principles; and Lord Harpwicks, in referring to that case, says that the point had been so determined “in this Court.” At law, such a will is void; and in the very case of Peacock v. Monk, we find a decision of C. J. WILLEs cited, in which it was held, after a consultation with the other judges, that the hus- band could not give power to his wife to make a will of land. This determination meant, and it could only mean, that the devise of.a feme covert, though made in pursuance of a power, was, equally with a will made without such power, void in a Court of law. This early case may, therefore, I apprehend, be relied on as a decisive authority in favor of the equitable title of the husband under his wife’s will, executed in pursuance of a power created previous to her marriage, and that such a title may be enforced in equity against the heirs at law of the wife. The idea that the husband is in such a case to be deemed a volunteer, seems to be without foundation ; and, though it was mentioned by the coun- sel for the respondents, the decision of the Court of Appeals shows that the objection did not apply. But, in that case, the estate of the wife had been conveyed, previous to her marriage, to trustees, in trust for such persons as she should, by deed or will, 264 COVERTURE. appoint. The case is not, therefore, in all respects applicable to the one before me ; and the doctrine in Peacock v. Monk is sup- posed to be fatal to the present claim. The principal question in Peacock v. Monk, 2 Vesey, 190, was as to the validity of the wife’s will of land purchased by her during the coverture ; and the observations of Lord Harp- WICKE, on which great reliance is placed, were mere dicta, not necessarily arising out of that case; and so they were considered, afterwards, in the case which I shall presently mention, before Lord Nortuineton. Lord HaRrpwickE admitted that ‘a woman, on her marriage, may take such a method as to prevent her real estate from going to her heir ;”’ but he doubted whether it could be done but either by way of trust, or of power over ause. ‘“ Sup- pose,” he says, ‘a woman having a real estate before marriage, and either before or after marriagé, by a proper conveyance (if after marriage it must be -by fine), conveys to trustees, in trust for herself during coverture, to her separate use, and then in trust for such person as she by deed or will should appoint, and, in default of appointment, to her heirs; she marries, and makes such an appointment. It is a good declaration of the trust, and this Court will support that trust. So it may be done by her, by way of power over a use, as if she conveyed the estate to the use of herself for life, remainder to the use of such person as she by writing, &c., should appoint, and, in default of such appointment, to her own use. This is a power reserved to her, and a feme covert can execute a power. But can a feme covert do this so as to bar her heir, by a bare agreement, without doing any thing to alter the nature of the estate? Can a woman, having a real estate before marriage, in consideration of that marriage, enter into an agreement with her husband, that she may, by writing or by will, dispose of her real estate? This rests in agreement, and, if she does it, though it may bind her husband from being tenant by the curtesy, that arises from his own agreement; but what is that to her heir? She is a feme covert, under the disability of coverture, at the time of the act done; and, if she attempts to make a will, the instrument is invalid. The only question that could arise would be, whether such an agreement between her and her husband would not give her a right to come into equity, after marriage, to. compel her husband to carry it into execution, and to join with her in a fine to settle the estate on such trust, or BRADISH v. GIBBS. 265 to such and such uses. And if it is such an agreement as the Court would decree to be carried further into execution by a proper conveyance, then the question may be, whether the heir is not to be bound by the consequences of that agreement.” It is then admitted, in this case, that a wife’s will of land may be good in equity, by way of execution of a power, provided the wife, previous to the marriage, conveyed the estate in trust, for purposes to be declared during her coverture, by deed or will; or, provided she previously raised a use, and reserved to herself a power over it. Lord Harpwicke only suggests doubts whether a mere ante- nuptial agreement between husband and wife, while the legal estate remains in her, can give her such a power of disposition during coverture. It appears to me that this doubt turns more upon a point of technical formality than upon any solid ground of distinction, or real principle adapted to the interest of fami- lies, or apparent to the good-sense and understanding of mankind. Why should not the heir himself, as well as the formal trustee standing behind him, be bound to give effect to the power of appointment reserved to the wife ? The case of Bramhall v. Hall, Amb. 467, first brought up the question upon such an agreement, without any conveyance by the wife. Articles were entered into between Bramhall and his intended wife, who was then a widow seised of an estate in fee, by which he covenanted that she should have power, by deed or will, to dispose of her estate, after her decease, to any person whatsoever, and that he would do any act to confirm it. After marriage, the wife, by lease and release, reciting the articles, conveyed her estate to trustees, after her death, to the use of her natural son for life, with remainders over. Lord Nortaincton held, that, the wife having the legal estate in her, the conveyance was not good to pass the estate, either as a conveyance or an execution of the power. This short and very imperfect note of the case is all we have in the report; and it would seem from it that the chancellor put the objection on the ground of the legal estate not having been conveyed in trust, or to uses. But in the next case that followed it, and decided only a few months afterwards, Lord Norruine- TON, referring to this case, says he was of opinion that there was 266 COVERTURE. no meritorious consideration. It was upon this ground, then, that the case was decided ; and so it has been viewed by Mr. Sugden, in his accurate “ Treatise of Powers,” p. 151. It may then be considered as an authority in favor of an ap- pointment by a feme covert resting upon an ante-nuptial agree- ment, and without having, prior to the marriage, parted with the legal estate. If the power had been void, the Chancellor would not have recurred to the want of merit (for so I under- . stand him) in respect to the object of the appointment or bounty. If the husband had been the grantee, no such objection could have been made, according to the case before Lord Kine ; and that case, in connection with this, would seem to contain all the principles requisite to support the present bill. But in the case of Wright v. Englefield, Amb. 468; 6 Bro. P. C. 156, s. c., which was decided in the same year, and which is more generally known and cited by the name of Wright v. Cad- ogan, Lord NortHineron gave the subject a deeper investigation. In this case, marriage articles were entered into between the intended husband and wife ; and the instrument recited the in- tended marriage, and that it was agreed that the wife’s existing estate, which was described to be a copyhold estate of inheritance, and a rent-charge for life, together with all such estate, real or per- sonal, as might descend or come to her during coverture, should be to her separate use, and to be applied as she by deed or will should direct. The husband covenanted with S. and B., who were also parties to the same article of marriage, that her property should be so subject to her disposition, and that he would execute any deed to secure the same to her separate application and use. A moiety of a trust inheritance, of which the legal estate was then outstanding in the defendants as trustees, and of which she had, when the marriage articles were made, a trust of the reversion in fee, descended to her after the marriage ; and the case says that she then became “entitled in fee-simple possession” to her moiety, subject to the performance of certain trusts. She afterwards made her will, and under the power reserved, and to which she referred, she devised her moiety of the inheritance to trustees, to the use of her husband for life, remainder to the sons of the mar- riage in tail male, remainder to the daughters of the marriage in tail general, and, in default of such issue, to her own right heirs. The plaintiff was her only son by a former husband, and BRADISH v. GIBBS. 267 the question was between him, as her heir at law, and the second husband and his surviving daughters, who all claimed by ap- pointment under the will and the marriage articles. He filed the bill to have a conveyance from the trustees, and they filed a cross-bill for directions. Lord Norruineton held that the will, in connection with the articles, was a good and valid appointment in respect to the hus- band, as well asin respect to his children ; and though he is made to say, according to the case in Ambler, that the provision, being for children, was meritorious, yet, by the decree, the provisions in the will were equally carried into effect in favor of the hus- band. He said that, “‘if a woman, before marriage, retains a power over a legal estate, to be exercised by way of execution of a power, she may do it.” The heir carried an appeal to the House of Lords, on the ground that the appointment was void as against him; and his counsel insisted that the only mode of enabling a feme covert to dispose of her inheritance was by a conveyance before marriage, to uses or trusts, reserving such a power, or else by fine after ' mnarriage, with a deed to lead the uses of it, reserving such power to her over the inheritance. They said that, unless one of those methods was taken, her will of real estate was void, and could not bind her heirs, though it bind the husband who was a party to the marriage articles ; that, in this case, the power rested only in covenant, or upon articles between the husband and wife, without any estate vested in trustees, out of which an appoint- ment by virtue of the power was to enure. The counsel for the respondents, on the other hand, urged, that as the legal estate was already in trustees, any formal conveyance would have been a mere declaration of trust, and the reasonableness of the provision in the will was also urged. The decree was affirmed, and, from the argument of the ap- pellant’s counsel (who were no less men than De Grey and Yorke), it is evident that they did not consider this case as satisfying the rule in Peacock v. Monk, requiring the wife before marriage to convey the estate in trust, or to use, with a power reserved to direct the uses or trusts. Lord Harpwicke clearly alluded to the solemn act and deed of the wife herself altering her estate before marriage, and by her own free act raising uses and trusts for future purposes, as being requisite to sustain the power; and 268 COVERTURE. so did the distinguished counsel in the above case. Here was no such act of hers, and nothing but simple marriage articles between her and her husband, as in the present case ; and if they be suffi- cient in all cases in which the wife is seised of any trust, inheri- tance, or reversion, to support her will during coverture, the force of the objection is gone. I consider this case, then, as containing the principle, that equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband, and to relatives who are not her heirs at law, provided that will be in pursuance of a power reserved to her in and by the ante- nuptial agreement with her husband. It is said, however, that the conveyance‘of her estate in reversion would have been only a mere declaration of trust, and, therefore, useless; but might she not have transferred her interest, equally as if it had been a legal estate, to another person, subject to such uses as she should afterwards during coverture by deed or will declare? She might have done some act varying her equitable interest, and creating new trusts, so as to have satisfied the scruples in the case of Peacock v. Monk. But this was not done or required in the above case; and I think Lord Kenyon was justified in refer- ring to that case (see Doe v. Staple, 2 T. R. 695) as evidence that the doubts of Lord HarpwickeE had been removed ; and that a bare agreement by marriage articles was sufficient to support the will, even against the heir; and Mr. Sugden (“ Treatise of Powers,” p. 151) cites it as evidence of the same fact. It was said, in the argument of the present case, that Lord KEnyon must have misunderstood the report of the case of Wright v. Cadogan. I should doubt that exceedingly. He was very familiar with equity principles and practice, and probably understood the case much better than those who have only the printed reports as a guide ; for he had been several years at the bar when that case was argued and decided in the House of Lords, and he speaks of the very able discussion it received in that house. The case of Rippon v. Dawding, Amb. 565, puts the question completely at rest. In that case a widow was seised of a freehold estate, and, previous ‘to her second marriage, her husband gave.a bond empowering her to dispose of her freehold estate, by deed or will, notwithstanding the coverture. The wife afterwards by will gave her estate to her younger children in fee, who exhibited their bill against the heir, to have a conveyance of the estate. BRADISH v. GIBBS. 269 The case of Wright v. Lord Cadogan was cited as being in point for the principle there determined, which was the performance of the marriage agreement as against the heir. The other side contended that the case of Wright v. Cadogan differed from the other, inasmuch as in the one case the legal interest was in trus- tees, and in the other it remained in the wife. Lord Camprn held that, though the two cases differed, in respect that the wife had only an equitable interest in the one and the legal interest in the other, yet the principle of determi- nation was the same in both; and that, as the Court decreed per- formance of the agreement in Wright v. Cadogan, which was a trust-interest, it will do so in this, which is the case of a legal. interest. He accordingly decreed a conveyance. This decision was made in 1769, and it has never been directly questioned, and certainly not overruled. In Compton v. Collinson, 2 Bro. Ch. 383-885, it was admitted by the counsel for the plaintiff that, if there be an agreement, prior to marriage and in consideration of marriage, that the wife might dispose of her own property, it would have been held good in ’ equity, and the wife would have been competent to have bound herself as to those rights which the marriage gave her, against the heir of the husband. The counsel on the other side, and who represented the heir at law, also admitted that a covenant before marriage would have given the wife a power to dispose by will. Such language of counsel on each side is very good evi- dence of the general sense of Westminster Hall on this point of law, and that the cases in Ambler were received as decisive au- thority. Nor do I apprehend that there is any thing in Hogden v. Lloyd, 2 Bro. Ch. 534, to weaken the force of this conclusion. In that case, marriage articles were entered into by which the real estate of the wife was to be settled to the joint use of the husband, wife, and upon the survivor for life ; and that, if she survived him, her estate was to be settled to her own use, and, if not, the estate was to be at her own disposal, On the same day, and previous to the marriage, she made her will, and gave her intended husband all her estate, absolutely, and made him sole executor. The marriage.took place afterwards on the same day. She died without revoking or altering the will, and the husband took possession. The question arose between the devisee of the husband and the wife’s heir at law. Lord Tuusrtow held that \ 270 COVERTURE. articles resting in agreement gave the husband an equitable estate for life; but that the will was revoked by the subsequent mar- riage. The great point was whether the will was a good execu- tion of the power. The Chancellor said the will was not well made under the power, because the power was to make a will after marriage; but, in the course of his opinion, there is this observation thrown out, that, ‘with regard to chattels, the hus- band, by contract anterior to the marriage resting only in agree- ment, could authorize her to make a will; but, in order to make a will of real estate, he must part with the legal estate to trus- tees by agreement; whilst resting in agreement only, he cannot bind the heir.” I believe that here is a mistake in the report ; for the observa- tion is directly against the decision in Rippon v. Dawding, which was cited upon the argument, and not questioned by the counsel for the heir at law. They put the objection to the will on the ground of a revocation by marriage, and that it was not in pur- suance of the power, because the power referred to an act after marriage. Lord THuRLow repeats the same argument; whereas, if the agreement was insufficient to support a will after marriage, by way of appointment, the case would have been put upon that, ground, and have cut short much discussion. Lord THurLow did not so much as notice the case of Rippon v. Dawding, which was cited upon the argument, and which he certainly would have done out of self-respect, at least, if he had meant to question and much more to overrule it. It ought farther to be observed, that the counsel on each side in this case also cited the decision in Wright v. Cadogan, as proving that an agreement before mar- riage would support a subsequent disposition ; and the Attorney- General (who was afterwards Lord ALVANLEY) considered it as resolving the doubt of Lord Harpwicxr, whether a mere agree- ment, or articles executory, would operate as a conveyance. He stated the rule to be, that there was no distinction in that Court as to the power of a feme covert, whether the estate be a legal or a trust estate, and that articles would convey to her a power of disposing of either during her marriage. The most accurate writers who have discussed this subject, such as Sugden (Treatise of Powers, 151, 152), Powell (Wood’s Conveyancing, by Powell, vol. 2 p. 6), and Atherley (Treatise on Marriage Settlements, p. 336, 887), consider the doubts of BRADISH ¥. GIBBS. 271 Lord Harpwicxke as clearly resolved or removed by the subse- quent cases which we have been considering. They all unite in opinion that it is not now necessary that the legal estate should be vested in any indifferent person as a trustee; and that, if the intended husband should covenant or agree that the wife might dispose of her estate, it would enable her to do so in equity. “By a mere agreement,” says one of them, “ when entered into before marriage, a feme covert may dispose, in equity, of her real estate.”’ If such writers are not to be cited as author- ity (though Powell was much relied on in a Pennsylvania case), they are at least good in evidence of the sense of Westminster Hall, and very conclusive evidence that the case of Rippon ». Dawding has never been shaken. The question raised in this case was also fully discussed by the Supreme Court of Pennsylvania (2 Dallas, 199; 1 Yeates, 221, 8. c.), and the Court professed to decide the case before them upon the settled principles of the English Court of Chan- cery. The wife, in that case, before marriage, entered into articles of agreement with her husband and one, J. W., by which it was agreed that her estate should be for their joint use during covert- ure, and, if she should survive him, the whole estate was to remain to her as if no marriage had taken place; and that she should have power, by will, to dispose of the same to such per- sons and for such uses as she should see fit. The husband cove- nanted with J. W. to suffer this power to be carried into effect. She married without having conveyed the estate to trustees, and had no issue, and by will devised her estate to her nephews and nieces. The point was, whether the will was sufficient to bar the heir at law. It was held by all the Judges (and the Court then consisted of M’Kean, C. J., SHIPPEN, YEATES, and BraprorpD, JJ.), that the will operated as a good appointment under the articles, and that the heir was bound without any legal estate being vested in trustees. The cases of Wright v. Cadogan and of Rippon v. Dawding were considered as governing the case and settling the law; and the Chief Justice admitted that the spirit of the form of those two decisions implied the same doctrine with the latter. The counsel for the plaintiff endeavored to take this case out of 272 COVERTURE. that of Rippon v. Dawding, on the ground that the devisees there were not volunteers, and that the provision there, for the younger children, was meritorious. Two of the cases already examined sistatuel the provision for the husband ; and, if further authority was wanting to show that a provision for him is deemed meritorious, and that he is not regarded as a volunteer, we have it in Sergeason v. Sealey, 2 Atk. 412. In that case a widow had a power, under former arti- cles, of disposing of 4,000/. by deed or will, executed in the presence of three witnesses, to any person she should appoint. Previous to her second marriage, she, by articles executed in the presence of two witnesses only, appoints the sum of 2,000J. out of the 4,000I., to be for the use and benefit of her intended hus- band. The remaining 2,000/. she made a voluntary disposition of by will, but did not execute it in the presence of three wit- nesses. Lord Harpwicxe held that the articles upon the second marriage was a good appointment within the power, and though it was a defective appointment, because of two witnesses only, yet the Court would supply the defect where it was executed for a valuable consideration. But as the appointment of the remain- ing 2,000/. was not for a valuable consideration, but only a volun- tary disposition, the defect in not proving the power was not to be aided ; and it was, accordingly, as to that last sum deemed a void appointment. So, Lord Expon, in Parks v. White, 11 Vesey, 222, when speaking of the power of disposition of a feme covert over estates settled to her separate use, observed, that “‘the Court had no dif- ficulty in supposing that a woman, having such an interest, might give it to her husband as well as to any one else. The cases never intended to forbid that; and, if he conducts himself well, I do not know that she can make a more worthy disposition; though, certainly, the particular act ought to be looked at with jealousy.” Indeed, it is a clear point throughout the books that a married woman, having a power which is a right to limit a use, may ap- point to her husband, in like manner as the husband may appoint to her. The case mentioned by Crew, OC. J., in Latch’s Rep. 44; Halder v. Preston, 2 Wils. 400; Gilbert’s Uses and Trusts, by Sugden, 150, note. In the case of the Methodist Episcopal Church v. Jacques! (decided in October, 1817), in which the 1 3 Johns. Ch. 77. BRADISH ¥V. GIBBS. 273 power of the wife over her property, was largely discussed, it ap- peared that the gifts to the husband had been constantly sus- tained; and the only check to them suggested in the cases is, that they were to be more narrowly inspected, on account of the danger of improper influence. If duly made in pursuance of the power, and at the same time fairly made, there is no pretence, in any of the cases, that a gift to the husband is not to be supported. There is no ground for the suggestion that a husband, who takes under a will founded on marriage articles like those in the present case, is a mere volunteer without consideration. The principle is well established (Marlborough v. Godolphin, 2 Vesey, 78), that, where a person takes by execution of a power, he takes under the authority of that power. The meaning is, as Lord HarDWICKE expresses it, that the person takes in the same man- ner asif the power and instrument executing the power had been incorporated in one instrument, and as if all that was in the in- strument executing had been expressed in that giving the power. Now, the marriage articles are founded on the consideration of marriage, which is a good and valuable consideration; and the provision in the will is founded on the same consideration as if it had been a part of the original ante-nuptial contract. The party. who claims under the execution of a power, makes title under the power itself. The husband is frequently called the next friend and nearest relation to the wife; he has a right to admin- ister, and he takes, her personal property, according to Lord Tuur.ow (8 Bro. 10), on that ground, and not on that of his mari- tal rights. It is a general rule, that equity will execute marriage articles, at the instance of all persons who are within the influence of the marriage consideration ; and Lord MaccLesFIzLD, in Osgood v. Strode, 2 P. Wms. 255, considered the husband and wife and their issue as all within the influence of that consideration. A late case in chancery, Sutton v. Chetwynd, 7 Merivale, 249, only held, that a covenant or limitation in marriage articles to strangers and to a brother were merely voluntary, and not to be protected and rendered valuable by the consideration of marriage. Though I concur in the intimation of Lord Expon, that the husband’s claim to his wife’s bounty is to be closely inspected, and wholly free from symptoms of coercion and undue influence, yet in a fair case, like the present, which has no such imputation, . and where there were no offspring to claim a divided attention, I 18 274 COVERTURE. think the wife’s bounty is reasonable and just. It springs from the best of human ties, and is founded on the warmest affections of the heart. There is less danger of improper influence exer- cised over the wife in case of an appointment by will than by deed; because a will, made in execution of a power, still retains all the properties of a will, and is revocable at the pleasure of the wife. Nor is there any weight in the objection, that the will makes no reference to the marriage articles. It is still in this case a good execution of the power. The rule, as declared in Sir Edward Clere’s case, 6 Co. 17 6, and in many subsequent cases (2 Bro. Ch. 300, 801, 803), and Bennet v. Aburrow, 8 Ves. 609, is, that, if a will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. If the act can be good in no other way than by virtue of the power, and some part of the will would otherwise be inoperative, and no other in- tention than that of executing the power can properly be imputed to the testator, the act, or will, shall be deemed an execution of the power, though there be no reference to the power. Here the will can have no effect without the power, not even as to per- sonal property; and if the power operates upon it at all, it operates equally upon every part of the disposition. My conclusion accordingly is, that the plaintiff is entitled to the relief sought by the bill; and I shall decree that the defend- ants execute and deliver to the plaintiff, at his expense, a release in fee, to be approved of by a master, of their legal right and title, as heirs of the testatrix, to the house and lot in the bill mentioned; and that, as to such of the defendants as have not answered, and may not be within the jurisdiction of the Court, that they be perpetually enjoined from asserting or enforcing their title or claim, as heirs aforesaid, to the same; and that no costs be allowed by either party as against the other. Decree accordingly. The doctrine of the cases of Rippon v. Dawding (or Hawdin) and Bradish v. Gibbs is recognized and approved in Barnes ». Irwin, 2 Dall. 199; Barnes v. Hart, 1 Yeates, 232; West v. West, 108. & R. 447; Strong v. Skinner, 4 Barb. 551; Wadhams ». American Home Missionary Society, 2 Kern, 422. See also Van Wert v. Benedict, 1 Bradf. 120; Winans v. Peebles, 31 Barb. 379; Meth. Episcopal Church v. Jaques, 8 Johns. Ch. 77; s. c. 17 Johns. 549; Tyree v Williams, 3 Bibb, 365; Reeve’s Dom. Rel. *145; 2 Bright’s Husb. & Wife, p. 56 et seq.; 2 Roper on Husb. & Wife, 178, 180,- MARTIN v. MARTIN. 247; 2 Spence’s Eq. Jur. *498; 1 Sugd. on Powers (3d Am. ed.), * 185- 188, and the authorities therein cited ; also West v. West, 3 Rand. 382, where the rule stated in Rippon v. Dawding is criticised so far as it applies.to real estate. In Strong v. Skinner (supra), per Parcs, J., it is said that ‘* since the de- cision of Bradish v. Gibbs (3 John. Ch. 522), the validity, in equity, of an 275 ante-nuptial agreement between hus- band and wife, without the intervention of trustees, by which the wife reserves to herself the power of disposing of her own property, either real or per- sonal, during coverture, has not been doubted.” The ability of the wife to execute such power in favor of her husband is, however, denied in Milnes v. Bush, 2 Ves. jr. 498. / Martin v. Martin. (1 Me. 394. Supreme Judicial Court of Maine, November Term, 1821.) Deed from Husband to Wife void at Law.— A husband cannot convey land by deed directly to his wife. Tue appellee filed his petition in the Probate Court, for parti- tion of the real estate of which his father died seised, and the Judge thereupon decreed that partition be made. From this decree the mother of the petitioner’ appealed to this Court, and filed the following as the cause of her appeal. ‘+ Because Ezekiel Martin, her husband, on the 20th day of June, 1808, being then in full life but since deceased, by his deed of bargain and sale, with general warranty, duly acknowledged July 28th, 1818, and recorded, for the consideration of four hundred dollars therein acknowledged to have been received of said Mary, did give, grant, bargain, sell and convey to said Mary, and her heirs and assigns for ever, in fee, the land described in the petition afore- said, by force of which deed she became and still is sole seised and. possessed of said land in her own demesne as of fee,” &c. And the question was upon the effect of this deed. Greenleaf, for the appellant. No other reason is given against the validity of a deed of conveyance from the husband directly to the wife, but this, that they cannot contract with each other, being in law but one person. But this maxim is not universally true, and the reasons on which it is founded do not apply to cases like the present. The incapacity of a feme covert arises not from her want of skill and judgment, as in the case of an infant; but, 276 COVERTURE. first, from her husband’s right to her person and society, which would be violated if a creditor could arrest and take her away; and, second, from his right to her property. 1. She may sue and be sued as a feme sole where the husband is banished (Co. Litt. 432 6), or has abjured the realm for felony (case of the wife of Weyland, cited in Co. Litt. 133 a), or is an alien enemy (Duch- ess of Mazarine’s case, 1 Salk. 116; 1 Ld. Raym, 147; 2 Salk. 646). She may contract with her husband to live separately, and he cannot compel her to live with him again. Mrs. Lester’s case, 8 Mod. 22; Rex v. Lister, 1 Stra. 478; Rex v. Mead, 1 Burr. 542. For in these cases he is understood to have renounced his marital right to her person. 2. Where the husband covenanted that she might enjoy, to her own use, her estates real and personal, and that he would join her in the surrender of her copyholds, her surrender without him was holden good. Compton v. Collinson, 1 H. Bl. 334; 2 Atk. 511. Husband gave his wife a note of 3,000/. to be paid if he should ever again treat her ill; and he did so, and the note was decreed in chancery to be paid. Reeve, Dom. Rel. 94, cites 2 Vent. 217; 2 Vern. 67. But even his right to her property has its limits. She may take separate property by devise; and, if no trustees be appointed by the will, the husband shall be trustee for her use. Bennet v. Davis, 2 P. Wms. 316. So of a legacy of stock. Rich v. Cockell, 9 Ves. Jr. 369. So of a gift from the husband to the wife. Moore v. Freeman, Bunb. 205. And she may even have a decree against him in respect of such estate. Cecil v. Juxon, 1 Atk. 278. She may accept a gift of personal ornaments from her husband. She may lend money to him, which his executors shall be bound to repay. Slanning v. Style, 3. P. Wms. 334; ib. 837. And she may bequeath her own personal property, of which she was endowed ad ostium ecclesiew. Reeve, 145-150, and authorities there cited. The reason of all these cases applies with as much force at law as in equity, viz., that the husband’s right to her property is not thereby affected. The wife may also act in auter droit as a feme sole. She may be an attorney. Co. Litt. 52 a. Or a guar- dian, and her receipt separate from her husband is good. Reeve 121, cites 18 Ves. 517. So if she have power to dispose of lands to whom she pleases, she may convey without her husband: Daniel v. Upley, W. Jon. 137, cited in note 6 to Co. Litt. 112 a; MARTIN v. MARTIN. QTT because, as Mr. Hargrave observes, “he can receive no prejudice from her acts.” She may in such case convey to her husband. Reeve, 120. She may be an executor; and, if a feme sole be ap- pointed sole administrator, and take husband, he becomes joint administrator ; but she alone may perform any acts which a joint administrator may perform. 1Com. Dig. Administration, D. She may also release her dower by her separate deed, subsequent to the husband’s sale of the estate. Fowler v. Shearer, 7 Mass. 14. From these authorities this general principle is deducible, that the wife is to be considered capable to act as a feme sole wher- ever the marital right to her person is not infringed, and wherever the estate of the husband can receive no prejudice from her acts. Now what prejudice can his estate receive, or what right of his can possibly be infringed, by considering her as capable to take directly from him by deed? He may convey to trustees for her use. He may convey to a third person; and this person at the same time, in pursuance of a previous agreement, may convey to the wife, with the husband’s assent, and it will be good at law . against him and his heirs. And yet divers deeds thus executed are to be taken as parts of one entire transaction. Holbrook v. Finney, 4 Mass. 566; Hubbard v. Cunimings, 1 Me. 11. He may covenant to stand seised to her use; and the statute of uses, 27 Hen. VIII., vest the possession to her. Co. Litt. 112 a. And in all these cases the estate descends not to his heirs, but to her own. The coverture may well operate to suspend any remedy on the covenants ina deed from the husband to his wife, during the life of the husband ; and this for the preservation of domestic peace, and of his right to her person, which would be infringed if she could imprison him; but this would not affect her capacity to take. ; E. Whitman, for the appellee. It is sufficient answer to the argument on the other side, to say that the law of the land is otherwise. It has ever been considered as law here, from the first settlement of the country, that the wife was incapable to take by direct conveyance from her husband; and conveyances have been regulated accordingly. Indeed the intervention of trustees on all occasions proves that estates cannot be thus con- veyed without them. No instance can be found of any attempt to support a deed like this. The same has been the common law of England from time immemorial. Lit. sec. 168; Co. Litt. 112 a. 278 COVERTURE. And it is founded in good reason. It frees the husband from the constant importunity of the wife while he is in health, and from the effect of her influence over his mind when it becomes en- feebled by disease. If it were otherwise, this barrier which the presence of trustees interposes would be broken down, and every artful woman might disinherit the children of a former wife at her pleasure. Greenleaf, inreply. The argument arising from the presence of trustees, as the protectors of a weak husband against the arts of an ambitious or an avaricious wife, is of little weight in the cause. Pliant trustees are as easily found as imbecile husbands; and a wife, artful or eloquent enough to obtain her husband’s consent to convey, will always be able to introduce some convenient relative or friend of her own as a trustee. As to the course of decisions, no adjudged case directly to this point is to be found in the books. Dieta, indeed, to this effect are not infrequent; but, if the reason of the law does not support them, why should they be treated as law? If the principle now contended for could operate to unsettle the titles to any estates, or to disturb vested rights, there might be good reason to reject it, and to adhere even to harmless errors rather than do mischief by correcting them. But it does not go to disturb titles, it shakes no established principle or decisions, it abridges no rights ; on the contrary, it vindicates the consistency of the law on this subject, and takes from it the reproach to which it is otherwise exposed. MELLEN C. J., afterwards delivered the opinion of the Court as follows: The only question presented in this case is whether the deed from Ezekiel Martin, the late husband of the appellant, directly to her is a legal conveyance by which the estate passed from him to her. If any principle of common law is settled and perfectly at rest, it seems to be this, that a husband cannot convey an estate by deed to his wife. The appellant’s counsel has not attempted to show any authority shaking this principle; and even the learned author of the treatise on Domestic Relations (though an able advocate for the rights of married women in re- gard to the control or disposition of property belonging to them) does not contend that such a deed would be an operative con- veyance. On the contrary, he admits it would not. (See pages 89, 90). The numerous cases cited by the counsel in support of the deed are principally chancery decisions ; and those which are MARTIN v¥. MARTIN. 279 not such have reference to questions totally different from that now under consideration. Neither class of cases, then, can be relied upon as authorities in the determination of this cause. It can be of no use for the Court to disturb, or attempt to disturb, a legal principle which has never before been agitated in our Courts, or till very lately been even doubted. It is not necessary for us to answer the inquiry which has been made, ‘“‘ why a deed from a husband to his wife should not be a valid conveyance,” in any other manner than by observing that the law of the land declares such a deed to be a mere nullity. Accordingly, without a particular examination of the authorities cited on either side, we affirm the decree of the Judge of Probate, and direct the record and proceedings to be remitted to the Probate Court, that such further proceedings may be had therein as the law requires. . The common-law doctrine (as dis- 5 Tex. 155. And others that, though tinguished from equity), that the hus- band and wife cannot convey to or contract directly with each other, such conveyances and contracts being abso- lutely void, has long been well settled. See, besides the principal case, the authorities cited in note,! below. The authorities, however, are not entirely agreed upon the grounds of such doc- trine, very many maintaining that the legal existence of the wife is suspended during coverture or merged in that of the husband. See Mete. on Cont. 82, 83; Co. Litt. 112 a; 2 Kent’s Com. 129; 1 Bl. Com. 442; 2 Story’s Eq. Jur. § 1876; Bell v. Bell, 36 Ala. 466, 8. c. 87 Ala. 536; Burleigh »v. Coffin, 22 N. H. 118; Davis v. Burn- ham, 27 Vt. 568; Cartwright v. Hollis, 1 1 Bish. on Mar. Wom. §§ 35, 710, 711; legally existing, the wife is sub potes- tate viri, and so presumably acting un- der his coercion, and incapable of act- ing for herself. See Reeve’s Dom. Rel. *98 ef seg.; Schouler’s Dom. Rel. c. II. p. 52; 1 Bish. Mar. Wom. §§ 85, 39; Bing. on Inf. & Cov. * 182; Scarborough v. Watkins, 9 B. Monr. 545; Phelps v. Phelps, 20 Pick. 559. Probably, the true grounds of the wife’s disability will, in many cases, be found to be a union of the two reasons above given. See the subject discussed in 1 Bish. Mar. Wom. §§ 35 et seq., 39 © et seq., 707 et seq. Husband and wife may, however, convey to each other by circuity; though in the case of the conveyance of the wife to her husband, the Court of 2 Story’s Eq. Jur. §§ 1867, 1874; Rowe v. Hamilton, 3 Me. 63; Winebrinner v. Weisiger, 8 Mon. 82; Scarborough v. Wat- kins, 9 B. Monr. 545; Johnston v. Johnston, 1 Grant’s Cas. 468; Sweat v. Hall, 8 Vt. 187; Gay v. Kingsley, 11 Allen, 345; Carley v. Green, 12 Allen, 104; Wood v. War- den, 20 Ohio, 228; Motley v. Sawyer, 34 Me. 540; McMullen v. McMullen, 10 Iowa, 412; White v. Wager, 25 N.Y. 828; Winans v. Peebles, 82 N.Y. 423; Syms »v. Rickets, 835 Ind. 181 (post, 287); Kinnaman v. Pyle, 44 Ind. 275; Edgerly v. Whalen, 106 Mass. 307; Haker v. Boggs, 68 Ill. 161; Gebb v. Rose, 40 Md. 387. See also George v. Ransom, 14 Cal. 658; Watrous v. Chalker, 7 Conn. 224; Preston v. Fryer, 88 Md. 221. Authorities to the same purport might be multiplied indefinitely, but the above will suffice. 280 Chancery will scrutinize the act closely to see that she has not been circum- vented, coerced, defrauded, or unduly influenced. Merriam v. Harsen, 4 Edw. Ch. 70, s. c. 2 Barb. Ch. 232; Jackson v. Stevens, 16 Johns. 110; Dempsey v. Tylee, 3 Duer, 73; Shep- person v. Shepperson, 2 Gratt. 501; Gebb v. Rose, 40 Md. 387. But, in order that the disabilities of coverture should attach, there must be COVERTURE. a marriage, and not merely a meretri- cious cohabitation. See Goodwin ». Morgan, 1 Stew. 278; Winebrinner v, Weisiger, 3 Mon. 82; Sellars v. Davis, 4 Yerg. 503; 1 ‘Ashmead, 200. As to how the common-law doctrine that husband and wife cannot convey to or contract directly with each other, is modified in equity, see Shepard v. Shep- ard, Livingston v. Livingston (post). SHEPARD v. SHEPARD. (7 Johns, Ch. 57. Court of Chancery of New York, Feb. 8, 1823.) Deed from Husband directly to his Wife, when sustained in Equity. — Though a deed from a husband directly to his wife is void in law, yet, where the con- veyance of the husband is for the purpose of making a suitable provision for the wife, as giving her a deed of certain lands, parcel of his estate, during her .widowhood, equity will lend its aid to enforce the provision, especially where the rights of creditors do not interfere, and where the wife had, by an ante- nuptial contract, released all right of dower to arise under the marriage, on the express engagement of the husband that she should be endowed of all lands acquired by them during their cohabitation. Where a husband conveyed * land to his son for a nominal sum, on his covenanting to pay an annuity to his mother during her widowhood, held, that the wife was entitled to her action on the covenant so made by the son to her husband for her benefit; and, that a release of the covenant to the son, by the husband in his lifetime, was fraud- ulent and void, as she had the sole beneficial interest in the covenant, and was alone entitled, in equity, to release it. Tue bill stated that the plaintiff was the widow of Hazel Shepard, deceased. That before their marriage in May, 1806, -Hazel Shepard, being seised of fifty acres of land, in Pittstown, and part of lot 8 in Hoosick’s Patent, in Rensselaer County, exe- cuted a deed, dated April 12, 1806, reciting their intended mar- riage, and that, if they should purchase any real estate during their marriage, the plaintiff should have a right of dower in the same during her widowhood, and he released to her dower there- in; “but no other right of dower to any other real or personal estate he then had, or might have by means of selling any real SHEPARD v, SHEPARD. 281 or personal estate he then had, and buying and paying therewith.” The plaintiff, on the same day, executed a deed to Hazel Shep- ard, reciting their intended marriage, and releasing to him all right of dower in his estate, real or personal, by virtue of the intended marriage. That after their marriage, on the 26th of December, 1808, Hazel Shepard executed a deed to the plaintiff (she being his wife), in consideration of natural affection, and to make provi- sion for her when a widow,.of a lot of land described, to hold during her widowhood. And, afterwards, on the 6th of January, 1817, Hazel Shepard, in consideration of natural affection, exe- cuted the deed to the defendant, his son, releasing to him the same land he had before released to the plaintiff. That on the same day, the defendant, by deed, in consideration of $1,000, released to Hazel Shepard forty-eight acres of the land described, during his life; and the defendant covenanted with Hazel Shepard that he would pay annually to the plaintiff, during her widowhood, the sum of $60, or, at his election, the sum of $400, in two equal annual payments, to commence from the day of the death of Hazel Shepard, if the defendant should so elect ; and the payment of the annuity, or of the $400, was to be on condition that the plaintiff should release to the defendant all right, as widow of Hazel Shepard, or by virtue of any deed, or otherwise, to the said estate of Hazel Shepard; and, if she re- fused so to do, the covenants of the defendant were to be void. The land described in the deed of the 26th of December, 1808, and that of the 6th of January, 1817, was the same land. Hazel Shepard died on the 25th of April, 1819, and the plaintiff re- mains his widow without any provision for her support. The defendant is in possession of the land described in the last-men- tioned deed; and the plaintiff having brought an action against him, upon the deed from Hazel Shepard to her, the defendant set up in defence that the deed was void in law. The defendant never made his election to pay the plaintiff $400. The plaintiff had offered to release to the defendant all her right to the estate " of Hazel Shepard mentioned in the deed, provided the defend- ant would pay to her the annuity, which he refused to do. No land was purchased by Hazel Shepard and the plaintiff during their marriage. The defendant had the title-deeds and refused to assign to the plaintiff her dower. 282 COVERTURE. Prayer, that the defendant be decreed to release to the plaintiff all his right to the land described in the deed of the 26th of December, 1808, for her life or widowhood, to take effect as of - the 28th of April, 1819, and to deliver the possession thereof, and account for the rents and profits from the death of Hazel Shepard; or, if the plaintiff should so elect, that the defendant be decreed to pay to her the annuity during her widowhood, upon her releasing to him all her right in the land; and that he secure such annuity by a mortgage on the land, or otherwise; or, if that cannot be done, that the defendant be decreed to assign to the plaintiff her dower, and account for the mesne profits, &c. The defendant, in his answer, admitted the deeds as stated in the bill; and that the deeds between Hazel Shepard and the plaintiff, be- fore their marriage, were in his possession. He insisted that the deed of the 26th of December, 1808, from Hazel Shepard to the plaintiff, was void. That the covenants of the defendant in favor of the plaintiff were without consideration. That on the 11th of October, 1817, Hazel Shepard being indebted to him, on various accounts, Hazel Shepard, in consideration that the de- fendant would discharge him from those demands, agreed to discharge the covenants ; and mutual releases were accordingly executed. He admitted that he had made no election to pay the plaintiff $400, or the annuity, and insisted that he was not bound to make an election ; that the yearly value of the lands is not $60. He admitted that he had refused to assign to the plaintiff her dower, and submitted that her claim was matter of law, and triable at law, and not in Chancery. He alleged that the consid- eration of the deed of Hazel Shepard to him, was $25, which he paid; and the life-estate was conveyed to Hazel Shepard in the premises. The cause was heard on the bill and answer. J. Paine, for the plaintiff. W. Raleigh, for the defendant. The Cuancettor. The plaintiff, upon the facts arising out of | the bill and answer, claims the assistance of the Court, (1), to make effectual, according to the terms of it, the deed to her from her husband, Hazel Shepard, of the 26th of December, 1808 ; or, if that deed cannot be enforced as against the defendant, that then, (2), the defendant be decreed to pay to her the annuity of SHEPARD v. SHEPARD. 288 | $60, according to the terms of his covenant made to her husband on the 6th of January, 1817; or, (3), that her dower in the real estate, whereof her husband was seised, and which is now claimed by the defendant, be duly assigned to her, and that an account be algo rendered to her of the rents and profits from her husband’s death. 1. The deed from Hazel Shepard to the plaintiff was undoubt- edly void in law ; for the husband cannot make a grant or convey- ance directly to his wife during coverture. Co. Litt. 3a. And in equity the Courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus, in Stoit v. Ayloff, 1 Ch. 88, the husband promised to pay his wife 100/.; they separated; and she filed her bill for that sum. But the Court would not relieve the plaintiff, ‘« because the debt was sixteen years old, and the promise made by a hus- band to a wife, which the Court conceived to be utterly void in law.” Again, in Moyse v. Gyles, 2 Vern. 385, Prec. in Ch. 124, the husband made a grant or assignment of his interest in a church lease to his wife. She brought a bill after his death to have the defective grant supplied ; and the Court held the grant to be void in law, and dismissed the bill, as the grant was volun- tary and without consideration. So in Beard v. Beard, 3 Atk. 72, the husband by deed-poll gave to his wife all his substance which he then had or might thereafter have. Lord Harpwicke considered the deed-poll to be so far effectual as to be a revocation of a will, by which the testator had given all his estate to his brother; yet that it could not take effect as a grant or deed of gift to the wife, ‘‘ because the law will not permit a man to make a grant or conveyance to the wife in his lifetime ; neither will this Court suffer the wife to have the whole of the husband’s estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to.” Itis to be observed, that none of these cases were deter- mined strictly and entirely upon the incapacity of the husband to convey to the wife according to the rule of law; and they do not preclude the assertion of a right in a Court of equity, under certain circumstances, to assist such a conveyance. The Court relied upon the staleness of the demand in the first case, and upon the want of consideration in the second, and upon the extrava- 284 COVERTURE. a * gance of the gift in the third, as also constituting grounds for the decree; and it is pretty apparent that, if the grant in each case had been no more than a suitable and meritorious provision for the wife, the Court would have been inclined to assist it. In Slanning v. Style, 3 P. Wms. 334, Lord Taxzor said, that Courts of equity have taken notice of and allowed feme coverts to have separate interests by their husbands’ agreement, especially where the rights of creditors did not interfere. And in More »v. Ellis, Bunb. 205, articles of agreement exe- cuted between husband and wife were held binding, without the intervention of trustees. So in Lucas v. Lucas, 1 Atk. 270, Lord HarpwickeE admitted, that, in Chancery, gifts between husband and wife have often been supported, though at law the property is not allowed to pass; and he referred to the case of Mrs. H., and to that of Lady Cowper. And in the very modern case of Lady Arundel v. Phipps, 10 Ves. 146, 149, Lord ELpon held-that a hus- band and wife, after marriage, could contract, for a bond fide and valuable consideration, for a transfer of property from the husband . to the wife, or to trustees for her. The consideration for the deed to the wife, in the case before me, was very meritorious. It was ‘natural affection, and to make sure a maintenance for the said Anna Shepard, wife and consort of Hazel Shepard, in case she should survive him.” She had been induced, prior to the mar- riage, to release to Hazel Shepard all right and claim of dower to arise under the intended marriage; and the consideration for this release was an engagement on his part that she should have dower in any real estate to be purchased by them “ by their pru- dence and industry during the cohabitation.” But no estate was purchased by them by those means; and according to the literal terms of those deeds she was barred of her dower, without any substitute. The deed to the wife of certain lands, being part and parcel of his estate, for and during her widowhood, was, there- fore, no more than a just and suitable provision, and one that a Court of equity can enforce consistently with the doctrine of the cases. The defendant does not stand in the light of a creditor, or of a purchaser for a valuable consideration without notice, and we have none of the difficulties before us which such a char- acter might create. He does not deny notice of the existence of the deed to the plaintiff, when he received the deed of the same lands from Hazel SHEPARD v. SHEPARD. 285 Shepard, and he does not pretend that he gave any thing more than the nominal consideration of $25, though the consideration of $1,000 was inserted in the deed. The fact that he did, on the day of the date of that deed, reconvey the lands to Hazel Shepard, his father, for life, and did annex‘ thereto a covenant to pay to the, plaintiff an annuity of $60 during her widowhood (and which he now says is more than the annual value of the land), is decisive evidence that he took the land of his father with knowledge of the equitable claim of the plaintiff, and with an engagement, on his part, to give her a reasonable compensation in extinguishment of that claim. I conclude, accordingly, that the deed from the husband to the wife may and ought in this case to be aided and enforced by this Court. This would seem to be the most safe and effectual relief to her; and it is one that her husband intended, before the alienation of his affections. The defendant would deprive her not only of her rights under this deed, but of all right and title to dower, by reason of her ante-nuptial release; and also of all compensation in lieu of dower, under his covenants, which were made to the husband, and by him subsequently released. 2 But if the deed of 1808 was out of the question, I should then have no difficulty in declaring that the defendant was bound to pay her the stipulated annuity, or the gross sum of $400 in lieu of it, on her releasing all right and title, as wife of Hazel Shepard, to his estate as described in the deed to the defendant. The relationship between the husband and wife was sufficient to entitle the plaintiff to her action upon the covenant to her hus- band, and which was made for her benefit. The consideration enured from the husband, and arose from the obligations of that relation ; and the release of the defendant from his covenants by Hazel Shepard was fraudulent and void as respected the plaintiff, who had the sole beneficial interest in the covenants, and who was alone entitled in equity to release them. In Dutton v. Poole, 2 Lev. 210; 1 Vent. 318; T. Jones, 103, the defendant, in consideration that his father, at his request, would not cut and sell certain timber growing, promised to pay the plaintiff, his sister, 1,0000. ; and it was held, after solemn argu- ment, that an action of assumpsit lay at law in the name and on behalf of the sister, and the judgment was affirmed on error to 286 COVERTURE. the Exchequer Chamber. It was said that the beneficial interest was in her, and she was the party who might have released. Lord MansrigLp, in Martyn v. Hind, Cowp. 443; Doug. 142, said that it was difficult to conceive how a doubt could have been entertained about this case of Dutton v. Poole. The same doctrine appears in the more early case of Starkey v. Mill, Sty. 196; and it has had the sanction also of Mr. Justice BULLER, in Marchington v. Vernon, 1 Bos. & Pul. 101, in notis.1 But it is quite unnecessary to dwell longer on this second point. The plaintiff is entitled to the use and enjoyment of the land contained in the deed, for and during her widowhood ; ‘and as the deed is void at law, and can only be sustained in a Court of equity, it becomes necessary that the remedy should be af- forded here, and it forms a just and proper subject of equitable jurisdiction. I shall, therefore, direct a reference to ascertain the net value of the rents and profits from the death of the husband on the 25th of April, 1819, to the date of the report; and that the defendant, within thirty days after notice of this decree, deliver up possession to the plaintiff of the premises contained in the deed to her, and included in the deed from Hazel Shepard to the defendant; and that the defendant, and all persons under him, be enjoined from disturbing the plaintiff, after she shall have obtained possession of the land, and been put into the pernancy of the fyture rents and profits, and in the enjoyment thereof, to her own use and benefit, during her widowhood ; and that he pay to her the rents and profits so to be ascertained, within thirty days after the report made and confirmed, together with her costs of this suit, to be taxed, or that the plaintiff have execution therefor. The doctrine of this case has been often recognized and approved, and may be considered as well settled. See Strong v. Skinner, 4 Barb. 552; Sim- mons v. McElwain, 26 Barb. 422; White v. Wager, 32 Barb. 257, s. c. 25 N.Y. 329, 334; Hunt v. Johnson, 44 N. Y. 31; Kelly v. Campbell, 1 Keyes, 30; Putnam v. Bicknell, 18 Decree accordingly. Wisc. 336 ; Hannan», Oxley, 23 Wise. 519; Sims v. Rickets, 35 Ind. 192; Jones v. Jones, 18 Md. 464; Huntly v. Huntly, 8 Ired. Eq. 250; Moraman v. Moraman, 4 Metc. (Ky.) 87. See also Thompson v, Mills, 39 Ind. 528; Kin- naman v. Pyle, 44 Ind. 275; McLean v. Longlands, 5 Ves. 79; Mews v. Mews, 15 Beav. 529 ; 21 E. L. & Eq. 1 See Schermerhorn v. Vanderheyden, 1 Johns. 189, s. PB. SHEPARD v. SHEPARD. 287 556 ; 1 Bish. Mar. Wom. § 717 et seg.; considered, and the cases well collected; 2 Story’s Eq. Jur. §§ 1874, 1875, and and this note cannot be better con- cases cited. cluded than by reproducing said. In the recent case of Sims v. Rick- case: —! ets, 85 Ind. 181, the subject is ably 1 Apprat from the Howard Circuit Court. Busxirk, J. This action is founded on two written instruments: 1, a deed of conveyance of the real estate in controversy; and, 2, a will subsequently made by the grantor in the deed. The material facts charged in the complaint are these: That Clement G. Rickets, being the absolute owner, in fee, of the premises described in the complaint, on the 12th day of January, 1856, by a general warranty deed, conveyed the said premises, in fee, directly to Mary Rickets, who was then his wife; that the said Rickets, on the 8th day of May, 1856, made his last will and testament, and that, on the 17th of the same month, he added a codicil thereto; that, by the said will, he bequeathed to his wife certain personal property therein described, and an annuity of $365, payable semi-annually, and directed that the said sum of $6,083.33 should be invested by his executor for the purpose of raising such legacy; that, in the event the said annuity should prove insufficient for the comfortable maintenance of his wife during sickness or ill health, his executor was directed and authorized to invest such other sum as, in his discretion, should be necessary for that purpose, and to pay her the interest of said sum whenever, in his discretion, her necessities might require it; that, by the codicil to the said will, the executor was directed to pay his widow, as soon after his decease as should be convenient, the further and additional sum of $1,000, with interest thereon from the date of his death to the time.of the payment, which money was to be used by her in purchasing for herself a private residence ; that the said will, after making certain specific legacies to his brothers and sisters, contained the following clause, namely: ‘“ Fifth. I give and bequeath all the rest, residue, and remainder of my estate, real, personal, and mixed, to be equally divided between my brothers and sisters, or their heirs, — except Letitia; that is to say, the said residue is to be divided into eight equal parts, and one part thereof I give and bequeath unto the children of my deceased sister, Sarah Courtr@ght.” Then follow the names of seven of his brothers and sisters, to whom or to whose heirs, when they are dead, he gives and bequeaths one equal eighth part of the residue of his estate, in the same language in which he gives and bequeaths to the children of his deceased sister Sarah, except as to the names; that by the sixth clause of his will he authorized and empowered his executor to sign, seal, execute, and acknowledge all such deeds of conveyance as might be necessary to the granting and conveying to the purchaser or purchasers all of all such lands as he might contract for the sale of in his lifetime ; that it was further provided by the said will, that, upon the death of the said Mary Rickets, the sums which he had directed to be invested to raise the legacies for her should be divided in the same manner, and paid as is directed in the fifth clause of his will, in which he had disposed of the residue of his estate; that the said Clement G. Rickets departed this life on the 22d day of March, 1858, in Columbia County, Pennsylvania, leaving surviving him the said Mary Rick- ets, as his widow, but leaving no child, father, or mother him surviving; that the deed of conveyance from the said Rickets to his wife Mary was recorded in the re- corder’s office of Howard County, in the State of Indiana, where the lands conveyed are situated, on the 12th day of May, 1858; that the said deed was executed in Columbia County, in the State of Pennsylvania, and the consideration expressed therein was the sum of one dollar; that the said Mary Rickets has, from the date 288 COVERTURE. of the said deed of conveyance, had and held the same, and that since the death of the said testator she has exercised, and still exercises, absolute control of the said premises, and pretends and claims to be the absolute owner thereof; that the plain- tiffs are the brothers and sisters, and the descendants of such as are dead, of the testator, and are the persons referred to and named in the residuary clause of the said will; that the deed of conveyance is absolutely void, by reason of the fact that when the same was made the grantor and grantee were husband and wife; that the said deed being void, no title passed to the said Mary Rickets ; and that the title to the said premises remained in the said Clement G. Rickets until his death, when the title thereto became and was vested in the plaintiffs, under and by virtue of the residuary clause of the said will. The prayer of the complaint was, that the said .deed of conveyance from the said Clement G. Rickets to the said Mary Rickets be set aside and cancelled, and that the plaintiffs recover the possession of the said premises, and $1,000 damages for the use and occupation thereof. Copies of the deed and will were filed with, and constitute parts of, the complaint. The appellee demurred to the complaint, on the ground that it did not state facts sufficient to constitute a course of action. The demurrer was sustained, and, the plaintiffs refus- ing to amend, the Court rendered judgment for the defendant. Proper exceptions were taken to these several rulings, and the only error assigned here is upon the action of the Court in sustaining the demurrer to the complaint. It is quite obvious that if the deed is valid, and conveyed an estate in fee-simple, absolute and unconditional, to the grantee therein named, the grantor could have no power to make a subsequent bequest of the same premises, he having already parted with his title thereto by deed; and that, therefore, if the deed set out in the complaint be a valid one, the appellants who claim title to the premises by virtue of the will of Clement G. Rickets, who was the grantor in the said deed, can have no valid title to the said premises. The validity of the deed is, therefore, the real question in the case. The appel- lants claim that the deed was absolutely void, for the reason that it was made by a husband directly to his wife, without the intervention of a trustee. The appellee admits that the deed is void at law, but maintains that it will be upheld and sustained in equity. The adjudicated cases in this Court do not very clearly define when and in what cases equity will sustain a conveyance direct from husband to wife. This Court, in Bunch v. Bunch, 26 Ind. 400, say : “The deed to the land in question, exe- cuted by the defendant to the plaintiff, during their coverture, was voidin law. This is not questioned by the plaintiff’s counsel; indeed, the complaint praying that the title may be vested and quieted in her is based on the assumption that the deed is void at law, and appeals to the equity powers of the Court for its confirmation. Such conveyances, though void at law, are sometimes upheld and confirmed by Courts of equity. The confirmation of such contracts is not a right to be enforced in allcases. Such claims are addressed to the sound discretion of the Court, and are only confirmed after a most cautious examination, in clear cases, where such confir- mation is demanded by the clearest dictates of right and justice.” We have made’a very careful examination of the elementary works and decisions bearing upon this question. The decisions are not uniform and consistent with each other. It is important that some fixed and definite rules should be established, by which we are to be governed in the decision of such cases, as it is not safe to leave such questions to the mere discretion of the Court; for, in such case, the peculiar views or prejudices of the Judge would determine the rights of parties. According to the strict rules of the old common law, the wife was not permitted to take and enjoy either real or personal property, independent of her husband. These rules were modified by the Courts of equity, and have recently been abolished by statute SHEPARD v. SHEPARD. 289 in this State. It is now the settled law in this State, and in the most of the States of the Union, that a wife may take, hold, and enjoy, to her sole, separate, and exclusive use, both real and personal property ; and in this State she may encumber and alien- ate her separate real estate by her husband joining with her in the mortgage or deed. There is now no limitation upon the power of the wife to take and hold real estate by inheritance, devise, or purchase. The limitation is upon her power of alienation. This she cannot do, unless her husband joins with her in the conveyance. It is also the admitted doctrine in this State, that a married woman may contract in reference to her sepgrate property ; and while she may not create a personal liability, she may charge her separate property for a debt contracted in reference thereto. The disabili- ties imposed upon married women by the common law have been, to a great extent, removed by the principles of equity and the statutes passed to secure their rights. Even after the doctrine was established that a married woman might hold real estate to her separate and exclusive use, the rule was inflexible at common law that she could acquire no valid title by a conveyance direct from her husband ; but the Courts of equity have modified the harshness of that rule. The rule that a wife could make no valid contract or agreement with her husband, was based upon the same principle as the rule that she could not hold real estate, to her separate and exclusive use, in- dependent of her husband. Both ofthese rules were established in consequence of the unity of person between husband and wife. The legislation of this State has destroyed the unity in person between husband and wife, so far as their rights of property are concerned. The strictness and rigor of these old rules should be modi- fied so as to conform them to the now well settled rights of property between husband and wife. Story says it was formerly supposed that the interposition of trustees was, in all arrangements of this sort, whether made before or after marriage, indispensable for: the protection of the wife’s rights and interests. In other words, it was deemed absolutely necessary that the property of which the wife was to have the separate and exclusive use should be vested in trustees for her benefit, and that the agree-- ment of the husband should be made with such trustees, or, at least, with persons capable of contracting with him for her benefit. But although in strict propriety that should always be done, — and it is usually done in regular and well considered: settlements, — yet it has for more than a century been established in Courts of equity that the intervention of trustees is not indispensable; and that whenever real or personal property is given or devised or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife’s. interest protected against the marital rights and claims of her husband, and of his. creditors also. 2 Story, Eq. 600, 601, sec. 1380. In Sexton v. Wheaton, 8 Wheat. 229, where the validity of a post-nuptial volun- tary settlement made by a husband upon his wife was in question, Marsuatt, C. J., says :— “It would seem to be a consequence of that absolute power which a man pos- gesses over his own property, that he may make any disposition of it which does not interfere with the existing rights of others; and such disposition of it, if it be fair and real, will be valid.” Speaking of the case before him, he says: ‘‘ The appellant contends that the house and lot contained in this deed constituted the bulk of Joseph Wheaton’s estate, and that the conveyance ought, on that account, to be deemed fraudulent. . . . If a man entirely unencumbered has a right to make a voluntary settlement of a part of his estate, it is difficult to say how much of it he may settle.” The doctrine is thus stated by the Supreme Court of the United States in Wal- lingsford v. Allen, 10 Pet. 583 : — 19 290 COVERTURE. “ Agreements between husband and wife, during coverture, for the transfer from him of property directly to the latter, are undoubtedly void at law. Equity exam- ines with great caution before it will confirm them. But it does sustain them when a clear and satisfactory case is made‘out that the property is to be applied to the separate use of the wife. Where the consideration of the transfer is a separate inter- est of the wife, yielded up by her for the husband’s benefit, or that of their family, or which has been appointed by him to his uses; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property, for her use, — either case equity will sustain, though no trusteg has been interposed to hold for the wife’s use. In More v. Freeman, Bunb. 205, it was deter- mined that articles of agreement between husband and wife are binding in equity, without the intervention of a trustee. Other cases may be cited to the same purpose. In regard to grants from the husband to the wife, an examination of the cases in the books will show that, when they have not been sustained in equity, it has been on account of some feature in them impeaching their fairness and certainty ; as that they were not in the nature of a provision for the wife, or when they interfered with the rights of a creditor, or when the property given or granted had not been distinctly separated from the mass of the husband’s property.” In Putnam v. Bicknell, 18 Wis. 388, it is said: ‘“‘ Though void at law, an absolute conveyance of real or personal property from the husband directly to his wife is good in equity, and sufficient, so far as the form is concerned, to divest the husband of such property, and to vest thesame in the wife, as against all persons save the cred- itors of the husband, especially when the transfer is fairly made upon a meritorious or valuable consideration.” In Huber v. Huber, 10 Ohio, 371, it was held “that a husband may, during his life, settle a separate estate upon his wife; that is, he may (there being no claims of creditors to forbid it) transfer property to his wife in which she never had any bene- ficial interest, and which will inure to her as her separate estate. This may be done even without the intervention of a trustee. A Court of equity would, if necessary, appoint one to execute the intentions of the husband.” In Simmons v. McElwain, 26 Barb. 419, it is said: “It is true that the deed from the defendant to his wife was void in law; for a husband cannot, during coverture, make a grant or conveyance to his wife. But such a grant will be upheld in equity, when it is necessary to prevent injustice.” In Wilder v. Brooks, 10 Minn. 40, it is said: ‘‘ And had the conveyance been made to any person other than his wife, and even for a merely nominal consideration, we see no reason why it would not have been completely unassailable. If these premises are sound, it follows that, if the instrument was effectual between Andrew M. Torbet and his wife to pass the property, it was good as to the world, and vice versa. Again, it is said: “ Contracts of all kinds between husband and wife are objected to, not only because they are inconsistent with the common-law doctrine that the parties are one person in law, but because they introduce the disturbing influences of bargain and sale into the marriage relation, and induce a separation rather than a unity of inter- ests. But, certainly, neither in reason nor on principle can it be contended that, so far as this objection is concerned, there is any difference between the cases of a con- veyance by a husband to trustees for the use of a wife, or to a third person who con- veys to the wife, or to the wife directly. Each of these would have precisely the same effect in conferring upon the wife property and interest, independent of and separate from her husband. And the tendency of modern legislation, as well as of judi- cial interpretation, is to improve and liberalize the marital relation, by recognizing and upholding the reasonable rights of both parties to the matrimonial contract.” The law is thus stated by the Supreme Court of Massachusetts, in the case of SHEPARD v. SHEPARD. 291 Whitten v. Whitten, 8 Cush. 191: “The like presumption exists in the case of pur- chase in the name of his wife and of securities taken in her name. Indeed Mr. Justice Story says that the presumption is stronger in the case of a wife than in that of a child. It is, therefore, an established doctrine that, when the husband pays for land conveyed to the wife, there is no resulting trust for the husband; but the purchase will be regarded and presumed to be an advancement and provision for the wife. This is fully supported by various cases, as well as by the best writers.” Mason, J., in the case of Stockett v. Holliday, 9 Md. 480, says: “ The case of Bowie v. Stonetreet, 6 Md. 418, conclusively settles that « contract which can be enforced in a Court of equity may be entered into between a husband and a wife, for the transfer of property from the former to the latter, for a bond fide and valuable con- sideration.” The Supreme Court of Vermont, in the case of Barron v. Barron, 24 Vt. 375, states the law thus: ‘‘ And, as a general rule, whenever a contract would be good at law when made with trustees for the wife, that contract will be sustained in equity when made with each other, without the intervention of trustees. It is upon this principle that, in many cases, the husband will be held as trustee of the wife, and the wife entitled to the privileges belonging to a ereditor of the husband.” Though a stranger’s conveyance of property or covenant to pay money to a mar- ried woman, or to a trustee for her, in order to give her a separate use, must contain words indicating such intention, it seems to be well settled that such words are unnec- essary in the husband’s conveyance or covenant. The law upon this subject is well stated by the Supreme Court of Connecticut, in Deming v. Williams, 26 Conn. 226, where it is said: ‘“ Now had such transfers been made by a parent into the name of a child, the child would acquire the interest as an advancement, such intent being inferred by law from the relationship of the parties. The same is true in case of a wife, where the husband purchases land and has the deed made directly to her, there being in the case no creditors, or fraud upon any other party. The law attaches to absolute deeds and transfers a full alienation of the entire interest or property, so far as the alienation is permitted by the principles of law or equity. Such are all gifts or deeds by husbands to wives of real or personal estate found in the books, from the case of Slanning v. Style (decided in 1784, and found in 3 P. Wms. 334) to the pres- ent time, and they are exceedingly numerous. They sustain the principle that, so far as the form and substance of the gift or alienation are important, that which would be good if made to a third person is good in a Court of equity if made by the husband to his wife.” We have had urged upon our attention and consideration the cases of White v. Wager, 25 N. Y. 328, and Winans v. Peebles, 82 N. Y. 428. We have given these cases a careful consideration, and are of the opinion that they are not in conflict with the views we have expressed. In both of those cases the question involved was the validity of conveyances from wives to their husbands. We have already seen that a married woman in this State is under a disability, so far as the alienation of her land is concerned. Her conveyance is absolutely void, unless her husband joins with her. Such is the law in New York. None of the disabilities imposed upon married women have attached to the condition of a married man, who was as free to receive the title to property and to dispose of it after miarriage as before, with the exceptions that he could not receive a deed directly from his wife, because she could not convey without his joining, and he could not join in a conveyance to himself, and that he had no power to dispose of, or in any manner affect, the inchoate right of his wife in and to his real estate. As to the world in general, the estate of marriage does not affect his ability to acquire title to or dispose of his property, just as he might have done if he had not been married. These cases correctly held that a deed direct from a 292 COVERTURE. wife to her husband was void at law, and would not be sustained in equity ; for the reason that this disability was imposed upon married women to protect them from the influence of their husbands. The adjudicated cases in England are in entire accord with the decisions in this country. We refer to the following English and American cases on this subject, besides those heretofore referred to. Lucas v. Lucas, 1 Atk. 270; Freemantle v. Bankes, 5 Ves. 79; Battersbee v. Farrington, 1 Swanst. 106; Latourette v. Williams, 1 Barb. 9; Neufville v. Thompson, 8 Edw. Ch. 92; McKennan »v. Phillips, 6 Whart. 571; Kee v. Vasser, 2 Ired. Eq. 558; Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556 ; Adams v. Brackett, 5 Met. 280; Jones v. Obenchain, 10 Gratt. 259; Walter v. Hodge, 2 Swanst. 97; More v. Freeman, Bunb. 205; Lady Arundell v. Phipps, 10 Ves. 189; Shepard v. Shepard, 7 Johns. Ch. 57; Wood v. Warden, 20 Ohio, 518; Gaines v. Poor, 8 Met. (Ky.) 508; Ward v. Crotty, 4 Met. (Ky.) 59; Living- ston v. Livingston, 2 Johns. Ch. 287; Fitch v. Ayer, 2 Conn. 148; Cornwall v. Hoyt, . 7 Conn. 420; Whittlesey v. McMahon, 10 Conn. 187; Morgan v. The Thames Bank, 14 Conn. 99; The F. E. Society v. Mather, 15 Conn. 587; Winton v. Barnum, 19 Conn. 171; Hawley v. Burgess, 22 Conn. 284; Edwards v. Sheridan, 24 Conn. 165. From the foregoing authorities the foHowing propositions are fairly deduci- ble : — First. None of the disabilities imposed upon married women have attached to the condition of a married man, who is as free to receive the title to property and dispose of it after marriage as before, except that he cannot by his conveyance affect the inchoate right of his wife to his real estate. Second. That a conveyance from a husband directly to his wife, without the intervention of a trustee, is void at law. Third. That a direct conveyance from a husband to his wife will be sustained and upheld in equity in either of the following cases, namely : 1. Where the consid- eration of the transfer is a separate interest of the wife, yielded up by her for the husband’s benefit or that of their family, or which has been appropriated by him to his uses. 2. Where the husband is in a situation to make a gift to his wife, and dis- tinctly separates the property given from the mass of his property, and sets it apart to the separate, sole, and exclusive use of his wife. Fourth. Where a wife advances money to her husband, or the husband is in- debted to the wife upon any valid consideration, the wife stands as the creditor of her husband ; and, if the conveyance is made to pay or secure such liability, the wife will hold the property free from the claims of other creditors,;where the transaction is unaffected by unfairness or fraud. Fifth. Whenever a contract would be good at law when made with trustees for the wife, that contract will be sustained in equity when made with each other, with- out the intervention of trustees. Sixth. That, prior to the recent legislation in this State authorizing married women to hold real estate to their separate use, when a conveyance was made by a stranger to a married woman, or to a trustee for her, in order to give her a separate use in the property, it was necessary that such conveyance should contain words clearly indicating such intention; but such words were unnecessary in a conveyance from a husband to his wife, for the law presumed that it was intended for her sepa- rate and exclusive use. Seventh. That section five of an act entitled “an act touching the marriage rela- tion and liabilities incident thereto” (approved May 81st, 1852), made all property held by a married woman at the time of her marriage, or acquired by her subsequently, hers absolutely, and has enabled her to use, enjoy, and control the same independently of her husband, and as her separate property ; and that, since the passage of that act, a ‘ LIVINGSTON v. LIVINGSTON. 293 - Lrvineston v. Livineston. (2 Johns. Ch. 537. Court of Chancery of New York, Sept. 2, 1817.) Post-nuptial Contracts between Husband and Wife, when sustained in Equity.—A husband and wife may contract, for a bond fide and valuable consideration, for a transfer of property from him to her. Where husband and wife agreed, by parol, that he should purchase a lot in her name, and build a house thereon, and that he should be reimbursed the cost thereof out of the proceeds of another house and lot of which she was seised, which should be sold for that purpose; and the husband having executed the agreement on his part, the contract failed by the sudden death of the wife, who left infant children, to whom the legal estate in both lots descended, — the agreement was decreed to be carried into effect, and the lot was ordered to be sold, and a conveyance conveyance to a married woman néed not contain words indicating that she is to hold the property to her separate use. Eighth. That when conveyances from a husband to his wife have not been sus- tained in equity, it has been on account of some feature in them impeaching their fairness and certainty ; as that they were not in the nature ofa provision for the wife, or when they interfered with the rights of creditors, or when the property given or granted had not been distinctly separated from the mass of the husband’s property. Ninth. That, in consequence of the absolute power which a man possesses over his own property, he may make any disposition of it which does not interfere with the existing rights of others. Tenth. When a husband is free from debt, and has no children, and conveys prop- erty to his wife for a nominal consideration, the law will presume that it was intended as a provision for his wife. Eleventh. That a conveyance from a husband to his wife which is good in equity, vests the title to the property conveyed in the wife, as fully, completely, and absolutely as though the deed had been made by a stranger upon a valuable consideration mov- ing from the wife. It appears by the record in this case that the grantor was possessed of a large property ; that in his will he disposed of about $8,000 in specific legacies ; that the value of the property disposed of in the regiduary clause is not shown; that he had no children, and, if he had died intestate, his wife would have inherited his entire estate; that the rights of creditors were not interfered with by the conveyance in question; that the great and commendable anxiety displayed in his will for the wel- fare, comfort, and happiness of his wife tends to show that the conveyance which he had made a short time before was intended as a provision for his wife ; and that in making his will he had such conveyance in his mind, and did not intend to devise to his brothers and sisters the property which he had previously conveyed to his wife. We are clearly of the opinion that the conveyance in question was good in equity, and should be sustained. The Court committed no error in sustaining the demurrer to the complaint. The judgment is affirmed, with costs. J. N. Sims and M. Bell, for appellants. W. L. McConnell, for appellee. 294 COVERTURE. executed by the infant trustees, by their guardian ad litem ; and their father (the plaintiff), and the master, were directéd to join in the conveyance ; and the plaintiff to be reimbursed his advances out of the moneys arising from such sale. Though such conveyance by the husband to the wife is pre- sumed, in the first instance, to be intended as an advancement and provision for her, yet that presumption may be rebutted by parol proof. A resulting trust is within the statute (Sess. 24, c. 30,§ 7; 1N. R. L. 147,7) and an infant may be decreed to convey such trust, it being established by parol proof. Tue plaintiff, in May, 1809, married Eliza Oothout, who was seised in fee, in her own right, of a house and lot (No. 56) in Greenwich Street. After the marriage, the plaintiff expended $2,500 in repairs and improvements on the house. In April, 1814, the plaintiff and his wife agreed that he should purchase, in her name, another lot, and build a house thereon, and that the cost of erecting such new house should be paid out of the proceeds of the house and lot first mentioned, on a sale thereof for that purpose, to be made when the new house was completed. The bill stated that, in pursuance of this agreement, the plaintiff, in May, 1814, purchased a lot (No. 51) in Green- wich Street, for $6,000, which he paid out of his own money, and took a deed in his wife’s name; that he erected a house on the lot, in the building of which he expended above $16,000 of his own money. That, in September, 1815, he and his wife went to reside in the new house, and his wife, soon after, on the 21st day of the same month, died suddenly, while the plaintiff, with her concurrence, was in treaty for the sale of the first house and lot. That the wife of the plaintiff left two infant children, her heirs, to whom the legal estate in both houses and lots descended. The plaintiff alleged that, the consideration for the agreement between him and his wife having thus failed, he was entitled to avoid the agreement, and consider the children as trustees for the plaintiff in regard to the second house and lot. The bill prayed that the de- fendants might be decreed to release the last-mentioned house and lot to him, or that the same might be sold, and he be reimbursed the moneys he had so advanced, out of the proceeds of such sale. The defendants, being infants, put in their answer by a clerk of the Court, as their guardian ad litem, and admitted only the- 17 Ann. c. 91. LIVINGSTON v. LIVINGSTON. 295 seisin of their mother in the first lot, and her death. The plaintiff proved the material facts stated in the bill. T. L. Ogden, for the plaintiff. The Cuancettor. I entertain no doubt of the fairness and equity of the agreement between the plaintiff and his late wife, as stated in the bill, and proved by one of the witnesses. A husband and wife may contract, for a bond fide and valuable consideration, for a transfer of property from him to her. It was admitted as a clear point in the case of Lady Arundell v. Phipps, 10 Vesey, 146-149, that a married woman having separate property may purchase, by the sale of it, other property, even of her husband, and have it limited to her separate use. Other authorities to the same point are referred to by Atherly, (Treatise on Marriage Settlements, p. 160, 161), who considers the point supported by reason as well as by authority. Though the agreement here was by parol, yet it was carried into effect on the part of the plaintiff, and he has the clearest equity either to have . the house and lot first mentioned sold, and the proceeds, or a part of them, paid over to him, or to have the second house and lot conveyed to him, on the ground of a failure of the contract by the sudden death of his wife. If there had been no issue between them, the hardship to the plaintiff would have been more strik- ing, in suffering the property in both lots to pass immediately to the wife’s collateral relations; but the principle of equity would not have been different. The circumstance that the heirs of the wife are the children of the plaintiff, only gives a graver and more interesting character to the case. The presumption would undoubtedly be, in the first instance, that the conveyance to the wife was intended as an advancement and provision for her. This presumption was admitted in the case of Kingsdon v. Bridges, 2 Vern. 67; but I do not see why it may not be rebutted, as has been done in this case, by parol proof. In Finch v. Finch (15 Vesey, 48), it was held, that though, when a purchase is made in the name of a person who does not pay the purchase-money, the party paying it is considered in equity as entitled, yet if the person whose name is used be a child of the purchaser it is, prima facie, an advancement; but that it was competent for the father to show, by proof, that he did not in- tend advancement, but used the name of his child only as a trustee. If the agreement had here been for an exchange of lots, 296 COVERTURE. I might thus have ordered the infant heirs of the wife to convey to the plaintiff the house and lot first mentioned ; considering them as infant trustees, according to the case of Smith v. Hib- bard, Dickens, 730. But the agreement was that the first house and lot should be sold, and the plaintiff reimbursed out of the proceeds for ‘ the expense of erecting such new houses.” This is the agreement as stated in the bill. I presume I have power to carry this partly executed agree- ment into effect, under the third section of the act of the 9th of April, 1814,! entitled, ‘an act concerning infants ; ” and it ap- pears to me that it would be more beneficial to the infants to have this agreement specifically executed, than to have the new house and lot conveyed to the plaintiff. It must be observed that, upon the terms of the agreement, as stated by the plaintiff, he is only entitled to be paid, out of the first house and lot, the expense of erecting the new house, and which according to the testimony of the mason who built it was about $11,000, though according to the carpenter’s testimony the whole expense was upwards of $12,000. The prayer of the bill is that the infants may be decreed to convey to the plaintiff the house and lot last mentioned, or that the said house and lot may be sold. Strictly considered, the prayer is to have the last house and lot sold; and as there is no prayer for general relief, but only this specific prayer, I am the more particular in this criticism on the bill. I am content, however, to consider the prayer for a sale as alluding to the first house and lot, and I presume it was so understood; for the plain- tiff has no pretext of right to have the last house and lot sold. The question, then, is fairly before me, which course ought to be pursued. If the release is to be adopted, it must be on the ground that the contract has failed, and that the infants hold the second house and lot for the plaintiff as a resulting trust, he having paid the purchase money. Infants have been ordered to convey a resulting trust after it was established by parol testi- mony ; and it has been held by Lord Chancellor Kine, Ex parte Vernon, 2 P. Wms. 548, to be a trust within the statute of 7 Anne, c. 19, which we have adopted, relative to conveyances by infant trustees. It was, however, afterwards doubted by Lord Taxsot, in Good- 1 Sess. 87, c. 108, LIVINGSTON v. LIVINGSTON, 297 win v. Lister, 3 P. Wms. 886, whether constructive trusts were within the statute of 7 Anne, though he gave leave to the plaintiff to apply, in case any precedents could be found where such con- structive trusts had ever been held to be within the statute. Lord Tatsor, in that case, must have either considered a resulting trust not one of the constructive trusts to which he alluded, or he must not have known or recollected the decision of Lord Kine, and which, I think, ought to be considered as an authority. My difficulty is not as to a want of jurisdiction in case a resulting trust be established ; but I think that a strict performance of the con- tract would be just as it respects the plaintiff, and more bene- ficial to the infants, and, therefore, it is the more advisable remedy. I shall, accordingly, decree a sale of the house and lot first mentioned, under the direction of a master; that the sale be at auction, on due public notice, and the terms of it be reduced to writing, and the memorandum of it signed by the purchaser, and reported to the Court for its approbation; and that, when con- firmed, the conveyance be executed by the infants, by their guardian ; that the plaintiff and the master unite in the convey- ance; that the moneys be brought into Court to abide its further order; that the same master ascertain and report the amount of the expense of the plaintiff in erecting the house on the last lot; and that the depositions taken in the cause be used by him as evidence, together with such other and further testimony as the plaintiff may think proper to furnish, and that he report such further testimony, together with his opinion as to the amount of such expense. The case of Livingston v. Livingston is approved in Strong v. Skinner, 4 Barb. 552; Bowie v. Stonestreet, 6 Md. 430; Maraman v. Maraman, 4. Met. (Ky.) 88; Lehr v. Beaver, 8 W. & S. 102, and seems never to have been doubted. See also Wolfe v. Security Fire Ins. Co., 39 N. Y. 51; Townsend v. Townsend, 2 Sandf. 713; Peck »v. Deeree accordingly Brown, 26 How. Pr. 372; Jones v. Jones, 18 Md. 468; Barron v. Barron, 24 Vt. 398; Wright v. Wright, 16 Iowa, 496; Hinman v. Parkis, 33 Conn. 197. For other examples of contracts be- tween husband and wife held binding in equity, see 2 Story’s Eq. Jur. § 1872 et seg., 1380; 1 Bish. Mar. 1 It was said, in Prec. in Ch. 284, that infant trustees convey by guardian after the conveyance is settled by a master; and, in 10 Vesey, 554, the whole costs were charged on the party applying to have infant trustees convey. 298 Wom. §§ 167, 168, 717, 721 et seq:; 2 Kent’s Com. 166; Schouler’s Dom. Rel. 286, and cases cited. The rule as to whether contracts be- tween husband and wife will be sus- tained in equity, is thus stated in Barron v. Barron, 24 Vt. 898: ‘* And, as a general rule, whenever a contract would be good at law when made with trustees for the wife, that contract will COVERTURE. trustees. It is upon this principle that in many cases the husband will be held as trustee of the wife, and the wife en- titled to the privileges belonging to a creditor of the husband. Story’s Eq. 1373, 1380. See also Maraman v. Maraman (supra), where this rule, so limited as not to affect the rights of third persons, was distinctly approved ; also, Schouler’s Dom. Rel. 286-7, and be sustained in equity when made with cases cited. each other without the intervention of Martin v. DwELLy. (6 Wend. 9. Court of Errors of New York, December, 1830.) Deeds and Contracts of Femes Covert, Effect of. — A deed of lands executed by a Jeme covert, together with her husband, but not acknowledged by her pur- suant to the statute, conveying lands belonging to the feme, and the payment of the consideration money by the grantee, is not such an agreement to con- vey as will be enforced against the heirs at law of the feme, by a decree for specific performance. It seems that a covenant or agreement entered into by a feme covert (except in relation to her separate property, and also with respect to property which she holds as trustee, without any beneficial interest in her own right, as to which in equity it seems that her contracts may be valid) is absolutely void. AppeaL from chancery. In February, 1827, the respondents commenced an action of ejectment for the recovery of certain premises in the possession of the appellant, claimed by them as the heirs at law of their mother Miriam Dwelly. The appellant filed a bill in chancery to obtain an injunction staying the suit at law, and to compel a conveyance from the respondents to him of the premises claimed. The appellant alleged that Miriam Dwelly, the mother of the respondents, was his sister, and one of eight children and heirs at law of Moses Martin, who died intestate in 1792, seised of various parcels of land; that, on the 19th of April, 1800, a settlement was agreed upon between the appellant and Abner Dwelly, the husband of Miriam, and the said Miriam her- self, whereby Abner Dwelly and his wife agreed to sell and con- vey to the appellant one eighth part of the land whereof the MARTIN v. DWELLY. 299 intestate, Moses Martin, died seised, for the consideration of $325 ; and, in pursuance of such agreement, conveyed the same to the appellant, under their hands and seals, and severally signed a receipt acknowledging the payment of that sum, which was paid by the appellant, and which he stated he verily believed was ap- plied to the use of the said Miriam ; that Miriam Dwelly entered into the agreement, and executed the conveyance and release of the premises voluntarily, without any fear or compulsion of her husband ; that the appellant took possession of the premises, using them as his own, selling and conveying away parts thereof, and occupying the remainder without interruption or molestation from Abner Dwelly and Miriam his wife, who departed this life, the said Miriam in October, 1825, and the said Abner in June, 1826, without having executed to the appellant a deed of the bar- gained premises duly acknowledged, according to the provisions of the act in such cases made and provided, and that they left eight children and one grandchild, the respondents in this case ; and that the appellant laid out considerable sums of money in the improvement and cultivation of the bargained premises, and was proceeding to make other improvements when the action of eject- ment was commenced. The bill prayed a discovery, and that the respondents might be compelled specifically to perform the agree- ment made and entered into by Abner Dwelly and Miriam his wife with the appellant, to release to the appellant the premises, in the agreement specified, and be restrained from bringing any actions of ejectment against the appellant, or those claiming under him, for the recovery of the bargained premises; and that in the mean time they be restrained from further prosecuting the suit already commenced, and for general relief. Chancellor Jones allowed the injunction prayed for. The re- spondents in their answer admitted that, on the 19th April, 1800, Abner Dwelly agreed to release his interest in certain lands designated as the real estate whereof Moses Martin died seised ; that a deed was accordingly drawn, embracing all the lands of which Moses Martin died seised, which was signed by the said Abner Dwelly and Miriam his wife, but the said Miriam declared that she would not acknowledge the due execution thereof, as the respondents stated they had always been informed, and believed truly ; and, further, that the appellant frequently made application to the said Miriam to acknowledge the execution of the deed in 3800 COVERTURE. due form of law, which she absolutely refused to do; and fre- quently and uniformly declared she never would acknowledge said conveyance, and that her children should, after her death, prosecute her claim, if she did not survive her said husband ; which declarations were often repeated by her to the appellant, as the respondents were informed and believe. The respondents denied that the consideration money of the conveyance was paid to the said Miriam, or went particularly to her use or to the use of her children; that Abner Dwelly was at all times in easy circumstances as to property, and did not require that money for the maintenance of his wife and children. The respondents in their answer also charged misrepresentation and concealment of facts on the part of the appellant, at the time of the obtaining of the deed in relation to the property of Moses’ Martin, the father of the appellant and of Miriam Dwelly. In October, 1828, Chancellor WaLwortH dissolved the injunction ; from the order dissolving the injunction, the complainant: below appealed. ‘The cause was argued in this Court by J. Crary, for the appellant. S. Stevens and D. Russell, for the respondents. The following opinions were delivered :— By Mr. Justice Suruertanp. The general question presented by this case is, whether a deed of a feme covert, not executed and acknowledged according to the provisions of the statute 1 R. L. 369, and therefore void and inoperative at law, is to be considered and treated in a Court of equity as a valid agreement to convey, . the specific performance of which will be decreed as against the feme covert or her heirs. By the common law a feme covert could not, by uniting with her husband in any deed or conveyance, for herself or her heirs, of any estate of which she was seised in her own right, or of her right of dower in the real estate of her hus- band. This disability is supposed to be founded in the principle, that the separate legal existence of the wife is suspended during the marriage, and is strengthened by the consideration that, from the nature of the connection, there is danger that the influence of the husband may be improperly exerted, for the purpose of fore- ing the wife to part with her rights in his favor. The law there- fore considers any such deed or conveyance as the act of the husband only, although the wife may have united in it, and re- strains its operation to the husband’s interest in the premises, MARTIN v¥. DWELLY. 801 and gives to it the same effect as though he alone had executed the conveyance. The only mode in which a feme covert could at common law convey her real estate was by uniting with her hus- band in levying a fine. This is a solemn proceeding of record, in the face of the Court; and the judges are supposed to watch over and protect the rights of the wife, and to ascertain by a private, examination that her participation in the act is voluntary and unconstrained. This is the principle upon which the efficacy of a fine is put by most of the authorities. 38 Cruise’s Dig. 153; Tit. 35, c. 10; 2 Inst. 515; 1 Vent. 121 a. But whatever may be the foundation of the doctrine, it is now fully established. Our statute declares that no estate of a feme covert residing in this State shall pass by her deed, without a previous acknowledgment, made by her before a proper officer apart from her husband, that she executed such deed freely, without fear or compulsion of her husband. 1 R. L. 869. This provision, it will be observed, is an enlargement, and not a restraint, of the common-law powers of a feme covert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowledged, the same power and effect as a fine; but, if not acknowledged according to the directions of the statute, it declares that no estate shall pass by it. It leaves it as it would have stood at the common law if the statute had never been passed, — absolutely void and inoperative. It was conceded that such must be the consequence at law; but it was contended that a Court of equity would consider it as an agreement to convey, and, if it was shown to have been voluntarily made for a valuable consideration, would compel the wife or her heirs specifically to perform it. This doctrine appears to me to be unsound in princi- ple, and unsupported by any color of authority. A feme covert, by the principles of the common law, is not only incapable of convey- ing her real estate by deed, but she cannot, as a general rule, make a valid contract of any description in relation either to real or per- sonal property. This disability results from the nature of the matrimonial connection. In contemplation of law, the wife is hardly considered as having a separate legal existence. She and her husband constitute but one person. She cannot bind either her husband or herself by any contract. She may execute a naked power ; and as to her separate estate, — that is, such estate, either real or personal, as is settled on her for her separate use, 302 COVERTURE. without any control over it on the part of her husband, — a Court of Chancery for certain purposes will consider her a feme sole, and her contracts in relation to it may be binding (5 Day, 496; 2 Kent’s Com. 137-141; 1 Johns. Ch. 450; 3 id. 77; 17 Johns. 548); but her own lands, or her right of dower in the lands of her husband, are not her separate estate within the meaning of this rule. It certainly will not be contended that the conveyance in this case can have any greater effect than an express covenant on the part of the husband and wife to convey; and I apprehend that an examination of the cases will show that such a covenant, made during coverture, would be absolutely void against the wife and her heirs, both at law and in equity. The greatest extent to which the English Courts have ever gone, is to hold that an action would lie against a wife, after the death of her husband, upon a covenant of warranty contained in a fine executed by her and her husband, though she was a feme covert when it was levied. This was held in the case of Wotton v. Hele, 2 Saund. 178, and 1 Mod. 290. It was also held in some of the earlier cases that, if baron and feme joined in a lease for years by indenture of the wife’s land, and she accepted rent after his death, she was liable to the covenants in the lease. Greenwood v. Tyber, Croxg, J., 563, 564; 2 Saund. 180, note 9. The acceptance of the rent is a confirmation of the lease, and may be considered equivalent to a new execution and delivery, though the wife was at liberty, after her husband’s death, to avoid or affirm it if she had chosen. The doctrine that a wife is bound by her covenant of warranty entered into during coverture, is considered by Chancellor Kent (2 Kent’s Com. 140) as at war with the established principle of the common law, that she is incapable of binding herself by any contract ; and a contrary doctrine has been expressly held both in this State and in Massachusetts. Fowler v. Shearer, 7 Mass. 21; Colcord and an- other v. Swan and Wife, 7 Mass. 291. In these cases it was observed, that, although the deed of a married woman is ipso facto void by the common law of England, yet by the immemorial usage of Massachusetts it would pass her estate, and she would be estopped by her covenants, though no action would lie against her for a breach of them. But the Supreme Court of this State, in Jackson ea dem. Clowes v. Vanderheyden, 17 Johns. 167, went still farther, and held that a feme covert not only was not liable to an action on the covenants contained in a deed executed and MARTIN v. DWELLY. 303 acknowledged according to the statute by her and her husband, but that she was not estopped by her covenant from setting up any outstanding title to the premises, or any other defence. C. J. Spencer, in delivering the opinion of the Court, observed that it was a settled principle of the common law that coverture disqualifies a feme covert from entering into a contract or cov- enant personally binding upon her. She may at common law pass her real property by a fine duly levied; and, under our own statute, she may also, in conjunction with her husband, on due examination before a competent officer, convey her real estate ; but such deed cannot operate as an estoppel to her subsequently acquired interest in the same land. There is a class of cases in which, where the husband had expressly covenanted that his wife should join in a fine of her real estate, he has been decreed specifically to perform his covenant, or to suffer imprisonment by way of penalty. Griffin v. Taylor, Toth. 106; Barrington v. Horn, 2 Eq. Cas. Abr. 17, pl. 7; Hall v. Hardy, 3 P. Wms. 187; Morris v. Stephenson, 7 Ves. 474; Withers v. Pinchard, cited in Morris v. Stephenson. In most of those cases, however, it did not appear that the wife had refused to unite in a fine; and the only reason on which the decisions are put, is, that it is to be presumed she was consulted by her husband before he entered into the covenant, and gave her assent to it. Lord Cowper, how- ever, questioned this doctrine in Outread v. Round, 4 Viner’s Abr. 208, pl. 4, cited in 1 Fonbl. 298, note 7, as did the Master of the Rolls in Daniels v. Adams, Amb. 495. Its soundness was also denied by Chief Baron GiILBERT, in his Lex Pretoria, 245. and most pointedly by Lord Expoy, in Emery v. Wade, 8 Vesey, 514, and in Martin v. Mitchell, 2 Jac. & Walk. 425. It was conceded by the counsel, and by Sir THomas Piumer, the Master of the Rolls, that such was not the law at this day. The same opinion had been previously expressed by the same learned judge in Howell v. George, 1 Madd. Ch. 16. The case of Baker v. Childs, 2 Vern. 61, is the only one which I have been able to find which contains the slightest intimation that a feme will be de- creed specifically to execute an agreement made by her during coverture. The whole report of that case is this: ‘“‘ Where a feme covert, by agreement made with her husband, is to sur- render or levy a fine, though the husband die before it be done, the Court will, by decree, compel the woman to perform the 304 COVERTURE. agreement.” No facts or circumstances are stated. Whether it was an antenuptial agreement between the husband and wife, or an agreement made by them with some third person, it is difficult to discover. It is altogether too loose and bald a case to be en- titled to any consideration; and it is said of that case, in 1 Eq. Cas. Abr. 62, pl. 2, that, upon looking into the register’s minutes, it appeared that the Court made no decree in it; but it was, by consent, referred to Mr. Sergeant Raw Linson for his arbitration. It is in no point of view, therefore, an authority. The case of Roupe v. Atkinson, Bunb. 163, cited by the counsel for the ap- pellants, was this: A lease fora term of years was assigned to the trustees before marriage, in trust that they should make leases for the benefit of the husband and wife. After marriage, the husband and wife assigned the lease to one Sparke, for a valuable consideration. After the death of the husband, the widow brought her bill against Sparke, to be relieved against this assignment made during coverture, on the ground that no fine had been levied. It was held that the assignment by the cestuis que trust was in the nature of an appointment, and should bind them in equity as much as if it had been made by the trustees by their direction. It bears no analogy to this case. The anonymous case in Mosely, 248, is equally inapplicable. An estate was purchased in trust for the husband and wife and their heirs, and the husband and wife joined in a mortgage to the vendor, to secure a part of the purchase-money. The mortgagee brought a bill of foreclosure ; and the husband and wife put in a joint answer, in which it is to be inferred no objection was taken to the mortgage on account of the coverture of the wife. The husband died pending the suit, and the wife then moved for leave to amend her answer, in order to set up the defence that no fine had been levied. The Lord Chancellor refused the mo- tion, with the single observation, that, though the mortgage was insufficient at law, he should consider the answer that had been put in as equal to a fine. Penne v. Peacock and Wife, Cas. temp. Talb. 41, was a case of a mortgage given by the husband to the plaintiff upon the lands of his wife, which had been conveyed by her to trustees, with his privity, before the marriage, in trust to pay the rents and profits to her separate use for her life. After the mortgage given, the husband and wife levied a fine of the mortgaged MARTIN v. DWELLY. 805 premises, and both declared the uses of the fine to be to the plaintiff, for securing the principal and interest of the mortgage. The wife insisted in her answer that she had joined in the fine by duress of -her husband, and that she had no estate in the premises upon which a fine could operate. The suggestions of duress and fraud were not sustained: by the proofs, and it was held as an established doctrine that the operation of a fine is the same upon trust as upon legal estates. That case also is entirely inapplicable to this. The precise question, however, involved in this case has arisen in a sister State, and been very ably discussed both by the counsel and the Court. I allude to the case of Butler & Atwater v. Buckingham, 5 Conn. 492. It was there held that an agreement by a feme covert, with the assent of her husband, for the sale of her real estate, was absolutely void at law, and could not be enforced against her in a Court of equity. The defendant in that case, Mrs. Buckingham, as the widow of her former husband, Joseph Bryan, had a right of dower in a particular lot of land, of which he died seised. She subsequently married Gideon Buckingham, and she and her husband, in January, 1793, agreed to sell all her interest in the premises to the plaintiffs, Butler & Atwater, and joined in a penal bond to them; the condition of which was, that if she should quitclaim her right of dower in the premises to the obligees, then the bond should be void. The petition (which was in the nature of a bill in chancery) stated that the petitioners immedi- ately entered into the possession of said land, and from that time to the date of the petition, a period of more than twenty years, had: had peaceable and uninterrupted possession of the same; that they had made valuable improvements thereon, with the knowledge of the defendant and her husband, in full confidence that they would perform their agreement; that Gideon Bucking- ham, the husband of the defendant, died in 1810; and that she, upon regular and repeated application, had refused to quitclaim her right of dower, and had recently commenced an action at law to recover the same from the plaintiffs. The petition prayed for a perpetual injunction, or that the defendant should be décreed to convey her right of dower in the premises. Upon a demurrer to this petition, it was held by the nine judges sitting as a Court of errors, that the petitioners were entitled to no relief. 20 806 COVERTURE. It was observed by the Court that the whole system of the common law was opposed to the doctrine on which the petition was founded ; that it was a fundamental principle of the common law that the contract of a feme covert is absolutely void, except where she conveys her estate by fine duly acknowledged, or by some matter of record, when she is privately examined in order to ascertain whether such conveyance is voluntary on her part; and it is pertinently said, How absurd then would it be to enforce such a contract to convey, made without such examination! It would be saying that a feme covert cannot directly convey her real estate unless she be privately examined; and yet she can con- tract to convey without such examination, and such contract will be enforced against her. By this mode, the established law in relation to a feme covert and her real estate will be completely subverted. A feme covert, in relation to her separate property, —that is, property settled to her separate use by deed or will, with a power of appointment, and rendered subject to her exclusive control, —and also with respect to property which she holds as trustee without any beneficial interest in her own right, is considered as a feme sole; and her contracts in relation to those subjects may be valid, and a Court of equity may interfere to enforce them. As to all other matters, they are absolutely void; and it is no less a moral than a legal absurdity to say that a Court of equity will enforce a void contract: it is a mere nullity; there is nothing to be carried into execution. The deed of a feme covert, not ac- knowledged according to the statute, forms no consideration for a promise to pay the purchase-money ; a note given under such circumstances is a nudum pactum, and void as between the par- ties. This was expressly adjudged by the Supreme Court of Massachusetts, in Fowler v. Shearer, 7 Mass. 14, and must be so upon every principle applicable to contracts. If an absolute sale consummated by a deed is void unless such deed is acknowledged in the mode prescribed by the statute, it is impossible that a con- tract to sell and convey, at some future time, should be valid. The language of the Master of the Rolls, Sir Tuomas PLUMER, in Martin v. Mitchell, 2 Jac. & Walk. 424, upon the general prin- ciple applicable to the contracts of married women, is very strong and explicit. He says: ‘The acts of a married woman with respect to her estate are perfectly void. She has no disposing MARTIN v, DWELLY. 307 power, though she may have a disposing mind. An agreement signed by her with her husband cannot affect her estate, and cannot give the party a right to call upon her in a Court of equity to execute a conveyance, to bar her if she survives, and to bind her inheritance. If an agreement is signed by a person competent to contract, and is for a valuable consideration, but defective in form, there is a remedy in equity; for you have a valid contract to stand upon. But with a married woman there can be no binding contract. The instrument is not good as an agreement; then how can it be said to bind her?” The same language substantially is used by the Court in the case of Wright v. Buller, 2 Ves. Jr. 676, and is to be found in all the elementary treatises upon the subject. The cases of Jackson v. Stevens, 16 Johns. 114; Jackson v. Cairns, 20 id. 303; and Doe ex dem. Depeyster v. Howland, 8 Cowen, 277, show very conclusively the opinion which has always been entertained in our Courts of the absolute nullity of a conveyance or contract made by a married woman in relation to her real estate. In the first case Judge SPENCER observed, that the conveyance, al- though signed and sealed by the wife, was not her deed until she had acknowledged it according to the statute. It could not bind her as a contract. She was not confirming an inchoate and imperfect agreement. The deed took its efficacy from the period of her acknowledgment. There was nothing prior, to which it could telate. The other cases are equally strong tothe same point. Vide also T Johns. 81. The bill is not framed with a view to the refunding of the purchase-money paid by the appellant for the premises in question. It seeks distinctly a specific execution of the agreement, or a perpetual injunction of any suit at law. Whether the representatives of Abner Dwelly could be com- pelled to refund, it is not now necessary to consider. I am in favor of affirming the decree, with costs. By Mr. Senator BEarpsLEY. It is supposed by the appellant that the payment of the consideration money, and signing the deed by the husband and wife, amount to such an agreement as will be enforced in chancery by a decree for a specific perform- ance. I do not understand that, in the present case, it is pre- tended there was any agreement to convey, excépt the agreement evidenced by receiving the money and signing the deed. It is therefore necessary to decide whether any case could be pre- 808 COVERTURE. sented of an agreement on the part of the wife for the sale of her land, without an acknowledgment, as prescribed by statute, that would be enforced in chancery. I am clearly of opinion that the decision of the Chancellor is right. At common law the wife could part with her interest in lands, only by joining — with her husband in a fine, and it then required a private ex- amination before a judge of the Court where the fine was levied. Under our statute she may join with her husband in a conveyance, and thus pass her estate, provided she is examined privately and acknowledges that she does it voluntarily and without fear or compulsion of her husband. The object of the statute is to pro- tect the rights of the wife; and, generally speaking, any agree- ment or conveyance which she makes in regard to land, except as prescribed by the statute, is not binding upon her or her heirs, because the law adjudges it made at the instance and under the influence and coercion of the husband. It appears to me that to sustain this appeal will have the effect of unsettling the whole law in relation to the rights of married women in real estate, and will amount to a virtual repeal of the statute. The wife is deemed to be wholly under the influence of her husband, and it is as necessary for her protection that she should be privately examined before an officer, to ascertain her volition in regard to an agreement, as it is in regard to a con- veyance. I very much doubt whether any agreement could be made with a married woman, in relation to lands, that could be enforced in equity against her. If any agreement could be enforced, it would probably be one where the consideration money was secured for her separate use, and where it should appear not to have been contrary to her interest. It is not pre- tended that the present conveyance is of any effect, except as evidence of an agreement that a Court of equity will enforce; and in this respect it is nugatory, because the law adjudges it to have been made at the instance of the husband. If chancery will enforce such an agreement, I can imagine no barrier that can be erected against the encroachment of the husband, or for the protection of the wife. It fritters away the statute, and makes it a dead letter. Suppose a worthless husband, who keeps his wife in constant fear, should wish to dispose of her estate con- trary to her wishes ; he finds a purchaser, and has witnesses ready, and in the presence of the wife agrees with the purchaser to sell MARTIN v. DWELLY. 809 him the estate of the wife, and that she shall join in the conveyance; he receives part of the purchase-money, or the whole, in the presence of the wife, and puts the purchaser in possession of the property; the wife, from fear of her husband, says nothing (and from silence the law in ordinary cases ad- judges acquiescence) ; the husband has a right to control the possession, and such an agreement unquestionably would be enforced against him; and why not against the wife, if she is capable of making a contract? The whole policy of the law is against this doctrine. Chancellor Kent says: “ Though a wife may convey her estate by deed, she will not be bound by a cove- nant or agreement to levy a fine or convey her estate.” 2 Kent’s Com. 141. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the Courts of equity never enforce such a contract against her. 5 Day. 492. It was decided in England, in Wotton v. Hele, 2 Saund. 178, that where the wife joined with the husband in a fine to grant her land with covenant of war- ranty, that after the husband’s death an action of covenant would lie against the wife, on the eviction of the grantee, and this case was relied upon by the appellant in this cause. The authority of Wotton v. Hele has been called in question by Courts in this country as inapplicable to our laws, and has been over- turned in Massachusetts, 7 Mass. 21, 291. And in our Supreme Court, in Jackson v. Vanderheyden, 17 Johns. 167, it is decided that the wife could not bind herself ‘personally by a covenant in her deed. On the whole, I do not feel at liberty to depart from ‘the provisions of the statute; they are wise and salutary, and intended for the protection of the wife against the cupidity and improper influence of the husband. He that wishes to divest a married woman of her land, must take care that the statute is complied with before he parts with his money. The Chancellor’s decree must be affirmed. Whereupon the order of the Chancellor dissolving the injunction was unani- mously affirmed, with costs, to be paid by the appellant. Leave however was given to the appellant to amend his bill. Nearly to the same point, see 326; Heaton v. Fryberger, 38 Iowa, Knowles v. McCamley, 10 Paige, Ch. 185; Gebb v. Rose, 40 Md. 387, 393; 342. See also Kinnaman v. Pyle, 44 1 Bish. Mar. Wom. § 589 e¢ seq., and Ind. 275; Worthington v. Young, 6 cases cited, where the statutory regula- Ohio, 314; George v. Goldsby, 23 Ala. tions on the subject of conveyances 310 by married women are fully consid- ered. As to leases by husband and wife of the wife’s lands, at common law, extend- ing beyond the termination of the cov- erture, or where there is an enabling statute which, however, has not been pursued by the wife, while the wife is not bound by the lease after the death of her husband, she may become so by the acceptance of rent thereafter; and, upon principle, the covenant running to the wife alone, or to husband and wife jointly, it would seem that she could sue thereon, after the death of her husband, independent of any ac- ceptance of rent. At all events, it seems settled that, by the acceptance of rent in such a case, she becomes bound by the lease, which some cases COVERTURE. call voidable only as to her and an ex- ception to the general rule of law, mak~- ing the deed of a feme covert void, allowed for the sake of agriculture and tillage; others say that the acceptance of rent after coverture ended is equiv- alent to a new execution and delivery, or testifies to her assent when compe- tent to contract. Whichever ground is the true one, the rule itself seems established. See the.old authorities collected in note (9), 2 Saund. 180; Toler v. Slater, L. R. 3 Q. B. 46; Good- wright v. Strophan, 1 Cowp. 201; Doe v. Weller, 7 T. R. 478; George »v. Goldsby, 23 Ala. 331; Worthington v. Young, 6 Ohio, 335. See notes to Robertson v. Norris (post), and to the next case. JACKSON v. VANDERHEYDEN. (17 Jobns. 167. Supreme Court of New York. October, 1819.) Feme Covert not bound by her Contract.— Estoppel. A feme covert cannot bind herself personally by a covenant or contract during the coverture. There- fore a deed executed by husband and wife, with covenant of warranty, does not estop the wife, in an action of ejectment against her, after the death of her husband, from setting up a subsequently acquired interest in the same lands. Dower. — The right to dower rests in action only, and cannot be so aliened as to enable the grantee to bring an action in his own name. Dower cannot be recovered in an action of ejectment, until it has been assigned. Evidence.—Parol evidence is inadmissible to show that an execution on which a levy and sale had been made, had been withdrawn, and the levy abandoned by the plaintiff, in contradiction to the sheriff's deed. The remedy of the party is by application to the Court to set aside the sale under the execution. THIS was an action of ejectment, tried at the Rensselaer circuit in July, 1818, before Mr. Justice VAN Ness. The plaintiff gave in evidence a deed from Jacob J. Vanderheyden, and Catherine, his wife, the defendant, duly acknowledged, by which they granted and conveyed to the lessor of the plaintiff the premises in question, in fee, with warranty. A witness testified that the JACKSON v. VANDERHEYDEN. 311 premises were part of an estate held and possessed by the father of Jacob J. Vanderheyden, under whom he derived title by de- vise or descent, and that he was in possession of the premises at the date of the deed; and that the said Jacob died before the commencement of this suit. By an agreement, dated the 10th of April, 1816, between the defendant and John D. Dickenson and others, the defendant covenanted, as soon as convenient, and when requested, to release to them all right and title of dower, as the wife of Jacob J. Vanderheyden, in certain lands claimed by them, and give up all deeds, &. And they covenanted, on receiving such release, to convey to her, in fee, lot No. 242, part of the premises in question; and to remove and put a barn standing on the adjoining lot, on lot 242, &c. A witness proved that the defendant went into possession of the premises by virtue of this agreement. The defendant then offered to prove a title in John D. Dickenson and others, by virtue of a judgment and execution in favor of John Kimberly, against the said Jacob J. Vanderheyden, docketed the 5th of September, 1810, for $2,000. This evidence was objected to on the ground that the defendant was estopped by her deed, and the covenants in the deed, from setting up any thing in opposition thereto. But the objection was overruled by the judge; and the judgment and execution, and a sheriff’s deed, dated the 12th of March, 1813, to John D. Richardson, for the premises in ques- tion, and the articles of agreement, were read in evidence. The plaintiff then offered to prove that the execution was withdrawn from the sheriff, and the levy abandoned, after the levy was made, and after the return of the execution, at the instance of Dickenson ; and that Dickenson was, in fact, the owner of the judgment at the time the execution was so withdrawn, and the levy thereon abandoned, and at the time of the sale under it. But this evidence was rejected by the judge, who charged the jury to find for the defendant, observing that the covenants in the deed did not bind her; that, as the plaintiff had not deduced and proved title in her, at the time of executing the deed, it could pass an inchoate right of dower, consummated by her hus- band’s death, which was interest not recoverable in ejectment, and that the deed could not estop the defendant from setting up an outstanding title, or any other defence; and the jury, accord- ingly, found a verdict for the defendant. On a case containing 312 COVERTURE. the facts above stated, a motion was made for a new trial, which was submitted to the Court without argument. Spencer, C. J., delivered the opinion of the Court. The de- fendant was not estopped by the deed she executed with her hus- band to the lessor of the plaintiff, for the premises in question. It is a settled principle of the common law, that coverture dis- qualifies a feme from entering into a contract or covenant per- sonally binding upon her. She may, at common law, pass her real property, by a fine duly levied; and under our statute she may, also, in conjunction with her husband, and on due exam- ination before a competent officer, convey her real estate, or any existing or contingent future interest in it. But such deed can- not operate as an estoppel to her subsequently acquired interest in the same lands. ; The defendant’s subsequent agreement with Dickenson in regard to the lots in question was not affected by the covenants in the deed to the lessee. The offer on the part of the plaintiff to show that the writ of fiert facias, issued under the judgment, in favor of Kimberly against Vanderheyden, had been withdrawn, and the levy abandoned, was properly overruled. It was an attempt, collaterally, to contradict the sheriff’s deed; and this we have held (Jackson v. Cray, 12 Johns. 429) to be inadmis- sible. The plaintiff’s remedy, if the facts would authorize it, would be an application to the Court to set aside the sale. I do not understand that the plaintiff relies on the right of dower acquired under the deed from the defendant and her husband. If, however, that right is insisted on, the answer is decisive that it is a right resting in action only: it cannot be so aliened as to enable the grantee to bring an action in his own name; a feme covert, or a widow, may release her claims of dower so as to bar her, but she can invest no other person with the right to maintain an action for it; and, besides, dower cannot be recovered in an action of ejectment until it has been assigned. Motion for a new trial denied. That at common law the contracts of Me. 566; Fuller v. Bartlett, 41 Me. a feme covert are not binding upon her, 241; Dunning v. Pike, 46 Me. 461; but are void, besides the two preceding Young v. Paul, 10 N. J. Ch. 404; Far cases, see also 1 Bish. on Mar. Wom. rar »v, Bessey, 24 Vt. 89; Cartwright § 39; Bing. on Inf. & Cov. 181; v. Hollis, 5 Tex. 152; Davis ». Burn- Reeve’s Dom. Rel. *98; Rose v. Bell, ham, 27 Vt. 567; Andriot ». Lawrence 88 Barb. 25; Howe v. Wildes, 84 33 Barb. 142; Tucker ». Cocke, JACKSON U. VANDERHEYDEN. Miss. 184; Chouteau ». Merry, 3 Mo. 254; Davis v. Foy, 15 Miss. 64; Rog- ers v. Phillips, 8 Ark. 366; Thompson v. Warren, 8 B. Monr. 488; King v. Mosely, 5 Ala. 610; Vance v. Wells, 6 Ala. 737; Perry v. Calhoun, 8 Humph. 551; Kavanaugh v. Brown, 1 Tex. 481; Sheppard ». Kindle, 3 Humph. 80; Pilcher v. Smith, 2 Head, 208; Glyde v. Keister, 1 Grant’s Cas. 465; Ex parte Thomas, 3 Me. 50; Breckenridge v. Coleman, 7 B. Monr. 331: Morgan v. Andrut (or Andriot), 18 How. Pr. 372, s. c. 2 Hilt. 4831; De Pierres v. Thorn, 4 Bosw. 297; Har- din v. Smith, 7 B. Monr. 390; Edwards v. Davis, 16 Johns. 281; Wilson »v. Burr, 25 Wend. 386; Den v. Craw- ford, 8 N. J. 104; Wallace v. Rippon, 2 Bay, 112; Rowe v. Kohle, 4 Cal. 285; Simpers v. Sloan, 5 Cal. 457 ; Shartzer v. Love, 40 Cal. 93; Hether- ington v. Hixon, 46 Ala. 297; Hennes- sey v. Ryan, 7 R. I. 548; Thomas ». Lowy, 60 Ill. 512 ; Tracy v. Keith, 11 Allen, 214: Higgins v. Willis, 35 Ind. 871; Anderson v. Tannehill, 42 Ind. 151; Hodson v. Davis, 43 Ind. 263 ; Maher v. Martin, 43 Ind. 314; O’Daily v. Morris, 31 Ind. 111; Bauer v. Bauer, 40. Mo. 61; Whitworth v. Carter, 43 Miss. 61; Vansteenburg v. Hoffman, 15 Barb. 28; Foster v. Wilcox, 10 R. I. 443; Brick v. Scott, 47 Ind. 299. Thus it is well settled that, though Jemes covert may, in most of the States, either by statute or by a sort of Amer- ican common-law, by joining with their husbands, convey their.real estate, yet they are not bound by any covenants contained in deeds so executed. Jack- son v. Vanderheyden, 17 John. 167 (ante) ; Albridge v. Burlison, 3 Blackf. 201; Colcord v. Swan, 7 Mass. 291 ; Fowler v. Shearer, 7 Mass. 21; Wad- leigh v. Glines, 6 N. H. 17; Nichol- son’s Lessee v. Hemsley, 3 Har. & McH. 409 ; Horsey’s Lessee v. Horsey, 4 Harring. 517; Nunnally v. White, 3 Met. (Ky.) 584; Lyon v. Metcalf, 12 Iowa, 93; Porter v. Bradley, 7 R. I. 588; Fletcher v. Coleman, 2 Head, 313 384. But see Wotton v. Hele, 2 Saund. 178; Nelson v. Harwood, 3 Call, 394. Nor by covenants in leases of her lands. Foster », Wilcox, 10 R. I. 443. See also Moreau v. Brunson, 37 Ind. 197, where the same principle is applied to the sale and indorsement of a promissory note, the wife not being liable on her contract of indorse- ment. And, in general, except as above stated, and in the absence of enabling statutes, the deed of conveyance or mortgage of a feme covert is'absolutely void. Thorndell v. Morrison, 25 Penn. St. 326; Fowler v. Shearer, 7 Mass. 14; Phelps v. Morrison, 24 N. J. Eq. 195; Daniel v. Rose, 1 Nott & McC. 33; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Matthews v. Puffer, 19 N. H. 448; Concord Bank ». Bellis, 10 Cush. 276. So as to her ordinary bond. Freer v. Walker, 1 Bail. 184; Dor- rance v. Scott, 3 Whart. 809. So as to her title bond. Moseby v. Partee, 5 Heisk. 26. Soasto herlease. Mur- ray v. Emmons, 19 N. H. 483. So coverture is a good plea in a pro- ceeding by scire facias or other process at law to enforce a mechanic’s lien. Sibley v. Casey, 6 Mo. 164; Rogers v. Phillips, 8 Ark. 366; Selph v. Howland, 23 Miss. 264. See also, on the subject of mechanic’s lien, Esslinger v. Hueb- ner, 22 Wisc. 6382; Johnson v. Tute- wiler, 35 Ind. 353, and cases cited; Hughes v. Peters, 1 Cold. 67. But under a statute giving a feme covert ‘‘ the same powers and privileges , at law over her estate which before could only be asserted in a Court of equity,” and where the object, form, and result of the proceeding to enforce the mechanic’s lien were assimilated to chan- cery jurisprudence, where the husband and wife jointly contracted for the erec- tion of a building on her land, a mechanic’s lien, under the statute, was enforced against the property. Green- ough v. Wigginton, 2 G. Greene, 435. So a feme covert cannot indorse a promissory note without the consent of her husband. Turpin v. Thompson, 2 314 Met. (Ky.) 420; Bac. Abr. Baron & © Feme, I., and cases cited. See also Tryon v. Sutton, 18 Cal. 490. But with the consent of her husband, a feme covert may indorse in her own name a promissory note made payable to her during coverture, and pass a good title to the indorsee, on the princi- ple that the assent of her husband removes her disability and constitutes her, to a certain extent, his agent, so as to bind him by her acts done in pur- suance of the authority so conferred. Stevens v. Beals, 10 Cush. 291 (over- ruling Savage v. King, 5 Shepl. 301) ; Hancock Bank v. Joy, 41 Me. 568; Reakert v. Sanford, 5 W. & S. 164; Leeds v. Vail, 15 Penn. St. 185; Lin- dus v. Bradwell, 5 Man., G. & S. 583. See also 1 Bish. Mar. Wom. § 100 and note (1), and cases there cited. And in Ham v. Boody, 20 N. H. 411 .(citing Bradford v. Buckingham, Cro. Jac. 77; Smith on Contracts, 221), it was held that one is bound by a con- tract made with a feme covert after she has performed all that she stipulated to perform as the consideration for his promise; and that the husband and wife can maintain an action upon it, although such contract was at first void as to her, by reason of her coverture ; probably so held on the principle that, by the adoption of the husband, the con- tract becomes his, his wife being simply an agent. See also Baxter v. Smith, 6 Binn. 427; and notes to Robertson v. Norris (post). It may be remarked also that, in South Carolina, by the decisions of the Courts femes covert are allowed to be- come feme sole traders, after the manner of the custom of London. Newbiggin v. Pillans, 2 Bay (S. C.), 162; Surtell v. Brailsford, id. 333; Dial v. Neuffer, 3 Rich. 78 ; Hobart v. Lemon, 3 Rich. COVERTURE. 131. See also Wallace v. Rippon, 2 Bay, 112; Rouillier v. Wernicki, 3 E. D. Smith, 310; Wieman v. Anderson, 42 Penn. St. 311. But this has been held not to apply to the business of common carrier. Ewart v. Nagel, 1 McMull. 50. Nor to carrying on a farm, or purchasing and hiring negroes. McDaniel v. Corn- well, 1 Hill (S. C.), 428. In general, also (except perhaps as to her separate estate), a feme covert (not a sole trader!) cannot appoint an agent or attorney, either by parol or by deed. See Sumner v. Conant, 10 Vt. 9; Patton v. Stewart, 19 Ind. 233; Caldwell v. Walters, 18 Penn. St. 79; Gillespie v. Worford, 2 Cold. 638; Phillips v. Burr, 4 Duer, 113; Story on Agency, § 6. See also Wier v. Bu- ford, 8 Ala. 134; Dentzel v, Waldie, 80 Cal. 188; Woodman v. Neal, 48 Me. 266; McQuie v. Peay, 58 Mo. 56. ‘“‘But where a married woman is capable of doing an act, or of trans- ferring property or rights with the as- sent of her husband, there, perhaps, she may, with the assent of her hus- band, appoint an agent or attorney to do the same.? So, with regard to her separate property, she may, perhaps, be entitled to dispose of it, or to in- cumber it, through an agent or attor- ney; because, in relation to such sepa- rate property, she is generally treated as a feme sole.® I say, perhaps; for it may admit of question; and there do not seem to be any satisfactory author- ities directly on the point.” Story on Agency (6th ed.), § 6. See also au- thorities collected in note (5). That a feme covert is not estopped by any covenant or recital in her deed, besides the principal case of Jackson v. Vanderheyden, 17 Johns. 167 (ante), see also Dominick v. Michael, 4 Sandf. 1 City Council v. Van Roven, 2 McCord, 465, holding a feme covert, sole trader, liable to a penalty under an ordinance regulating the sale of liquors, though the liquor was handed to the purchaser, a negro, by her husband, she being present, and he acting as her clerk. 2 Sed queere. 3 See 2 Story’s Eq. Jur. §§ 1891-1402. JACKSON U. VANDERHEYDEN. 424; Phillips ». Burr, 4 Duer, 115; Nicholson v. Hemsley, 8 Har. & McH. 409; Horsey’s Lessee v. Horsey, 4 Harring. 517; Carpenter v. Schermer- horn, 2 Barb. Ch. 314; Wight ». Shaw, 5 Cush. 56; Lowell v. Daniels, 2 Gray, 161; Strawn v. Strawn, 50 Ill. 33; Bac. Abr. Leases, O.; Bigelow on Estoppel, 276. But see Morris v. Harris, 9 Gill, 19. But where she is enabled to convey her estate by deed, and makes a convey- ance in the forms prescribed by law, she is as effectually concluded as any other grantor from denying any ad- mitted fact which is essential to the effect and operation of the deed. Grout v. Townsend, 2 Hill, 554, s. c. 2 Denio, 336. In Fowler », Shearer, 7 Mass. 21; Colcord v. Swan, 7 Mass. 291; Fletcher v. Coleman, 2 Head, 388 ; Hill v. West, 8 Ohio, 226, a distinction is taken be- tween holding a feme covert liable for damages on her covenants of warranty, and estopped by them; and in Hill v. West it is directly held, in opposition to Jackson v. Vanderheyden, that she is estopped by her covenant from set- ting up a subsequently acquired title. See also Massie v. Sebastian, 4 Bibb, 436. But the weight of reason and author- ‘ity seems clearly to support the contrary doctrine. See the authorities above cited. Neither is a feme covert having a perfect title to land, for which same land a deed is afterwards executed by a third person to her and her husband, and accepted by them, estopped from setting up her original title; nor is she bound by the limitations and trusts in such deed. Jackson v. Cary, 16 Johns. 302. Neither does a warranty deed by the husband estop the wife from enforcing a prior mortgage on the same property held by her as her separate property, against the husband’s grantee and those holding under him. Bartlett v. Boyd, 34 Vt. 256. 315 Neither is a widow, in an action to recover dower, estopped by the decd of her husband executed while she was a Jeme covert (even though he might have been thereby concluded), she being neither a party nor a privy, but a stranger to the conveyance. Sparrow v. Kingman, 1 N. Y. 248; Gaunt v. Wainman, 3 Bing. N. C.69. See also Needles v. Needles, 7 Ohio St. 443; Johnson v. Miller, 47 Ind. 376. Nor, conversely, is the tenant estop- ped as to the demandant in such action by reason of taking under such deed. See Sparrow v. Kingman and Gaunt v. Wainman (supra). The opposing case of English ‘v. Wright, 1 Coxe (N. J.), 487, seems clearly erroneous. As to whether the doctrine of estop- pel in pais applies to married women, there is some difference of opinion. The Supreme Court of Massachusetts, in Lowell v. Daniels, 2 Gray, 168, ex- pressed the opinion that it does not. See also Bemis v. Call, 10 Allen, 517; Delancey v. McKeen, 1 Wash. C. C. 354; Rangeley v. Spring, 21 Me. 130; Morrison v. Wilson, 13 Cal. 494; Bank of U.S. v. Lee, 13 Pet. 107; Drury v. Foster, 2 Wall. 24; Glidden v. Strup- ler, 52 Penn. St. 400; Bodine v. Kil- leen, 53 N. Y.96; Bisland v. Provosty, 14 La. Ann. 168. The subject is well considered by Mr. Bigelow in his work on Estoppel, p. 485 et seq., where the cases are well collected and considered, and the fol- lowing conclusions arrived at: ‘‘ Par- ties under disability, as infants and married women, certainly are not es- topped, unless their conduct has been intentional and fraudulent,” citing Kane County v. Herrington, 50 Ill. 232; Schnell v. Chicago, 38 Ill. 382 ; David- son v. Young, id. 146; Rogers v. Hig- gins, 48 Ill. 211; Schwartz v. Saunders, 46 Ill. 18; Brown v. Coon, 36 Ill. 243; Miles v. Lingerman, 24 Ind. 385; Mc- Coon v. Smith, 3 Hill, 147 (ante, p. 220). See also McClure v. Douthill, 6 Penn. St. 414; Parks v. Willard, 1 316 Tex. 350; Warren v. Dickerson, 3 Tex. 460; Lyman v. Cessford, 15 Iowa, 229. ‘“*In cases of fraud, unmixed with contract, however, whether by conceal- ment or active conduct, it is pretty well settled, in opposition to the doctrine in Massachusetts above stated, that a married woman may estop herself to deny the truth of her representation,” citing Schwartz v. Saunders, 46 Ill. 18; Connolly v. Brantsler, 3 Bush, 702; Wright v. Arnold, 14 B. Monr. 638 ; Davis v. Tingle, 8 B. Monr. 539 ; Jones v. Kearney, 1 Dru. & War. 134; Vaughan v. Vanderstegen, 2 Drewry, 363 ; Wright v. Leonard, 8 Jur. N. s. 415; In re Lush, L. R. 4 Ch. App. 591. See also Blackwell v. Blackwell, 9 B. Monr. 410; Heavener v. Godfrey, 3 W. Va. 426; Fulton v. Moore, 25 Penn. St. 477; 1 Story’s Eq. Jur. § 385. ‘The weight of reason and author- ity, then, seem to establish the proposi- tion, that a married woman may pre- clude herself from denying the truth of her representations, but only in the case of pure torts ; and that, if her conduct is so connected with contract that the action sounds in contract, there can be no estoppel.” For a full discussion of this subject, the reader is referred to Bigelow on Estoppel, 485 et seg., and the cases there cited. When, however, a married woman fails to interpose the defence of covert- ure to a suit, she is estopped by the judgment from availing herself of such fact thereafter, to avoid a levy of exe- eution. Elson v. O'Dowd, 40 Ind. 300; McDaniel v. Carver, 40 Ind. 250; Wagner v. Ewing, 44 Ind. 441 ; Land- ers v. Douglas, 46 Ind. 522; Van Metre v. Wolf, 27 Iowa, 341. See also COVERTURE. : Murphy v. Bright, 3 Grant, 296, to the point that this defence cannot be made for the first time in the appellate Court. See, contra, Griffith v. Clarke, 18 Md. 457,awhere a judgment at law by de- fault against a feme covert was declared null, and its enforcement against her separate estate restrained by injunction. In Lassiter v. Harper, 10 Ired. 392, a certiorari was awarded to correct this error in fact (coverture); and it was intimated that writ of error coram nobis would lie. Under the Louisiana Statute (C. C. 2412) prohibiting a married woman from becoming surety for her husband, it is held that a married woman is not estopped, by confessing judgment, from afterwards denying that the debt inured to her benefit. Baines v. Bur- bridge, 15 La. Ann. 628. See also Patterson v. Fraser, 5 id. 586. To the point that a judgment against a feme covert by confession, without action, is void, see Watkins v. Abra- hams, 24 N. Y. 72; Brunner’s Appeal, 47 Penn. St. 78. See also Hennessey v. Ryan, 7 R. I. 548. Married women, however, to the ex- tent and in the matters of business in which they are by law permitted to en- gage, owe the same duty to those with whom they deal, and may be bound in the same manner as if unmarried. When in such case they clothe others with apparent authority to act for and bind them, the apparent must be taken as the real authority, and they are es- topped from disputing it, so far as others have been induced to act upon the faith of it. Bodine v. Killeen, 53 N. Y. 98. See also Lindner v. Sabler, 51 Barb. 322; Sherman v. Elder, 1 Hilt. 178, 476. WATKINS v¥. HALSTEAD. 317 Wartxins v. Hausreap.! ee (2 Sandf, 311. Superior Court of the City of New York, February, 1849.) Contracts of Married Women, whether revivable by New Promise after Coverture ended. — Consideration. An express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision. A promise made by a married woman to pay for goods purchased by her during coverture, is void; and the law will not raise an implied promise by her from such ‘consideration. Neither will such precedent consideration support ay express promise by her to pay the debt, made after her divorce from her husband. The doctrine that a moral obligation is a sufficient consideration for a subsequent Ponies is one which should be received with some limitation. THIS was an appeal by the defendant from the Marine Court. The plaintiff’s complaint against the defendant was for $52.05, due him for goods, wares, and merchandise, together with inter- est from May 27, 1846. The defendant answered, that, at the time of the alleged sale and delivery of the goods, she was the wife of David P. Halstead, who was alone liable for the payment thereof. The plaintiff replied that the defendant was not, at the time, living with David P. Halstead as his wife ; and, further, that she was divorced from her husband by a decree of the Court of Chancery, on or about the 2d of November, 1846; that, al- though the bill of goods mentioned in the complaint was con- tracted for by the defendant on or about the 14th of May, 1846, and while the defendant was the wife of David P. Halstead, yet they were sold and delivered to her while she was living separate from her husband and as a feme sole; and that after she was divorced from her husband, to wit, on the 2d of November, 1846, she repeatedly promised to pay for the goods, and did pay for a part of the goods originally sold her; and that she then 1 Notwithstanding the fact that this case may perhaps be considered as overruled by Goulding v. Davidson, 26 N. Y. 604, it is herewith given in full, as better exempli- fying its side of the question than any other case that has come to our notice. The case of Goulding v. Davidson is given in full at the end of the note to Lee v. Mug- geridge (post). 818 COVERTURE. promised to pay the balance of the bill to the plaintiff, to wit, the sum of $52.05. That the plaintiff, at the defendant’s request, brought a suit for the bill against David P. Halstead, in the Marine Court; and was nonsuited in that action, on the ground that the present defendant had deserted her husband, and was living separate from him when the bill of goods was sold and delivered to her, and that, therefore, David P. Halstead was not liable therefor. That since that suit was decided, and sub- sequent to the divorce, the defendant had recognized the bill as her debt, and promised to pay the same. And that the defend- ant had a separate property of her own, and an income of $500 per annum, or more, and was abundantly able to pay the debt. On the trial, the plaintiff proved the sale and delivery of the goods to the defendant in May, 1846, while she was living separate from her husband; though the plaintiff’s clerk, who delivered the goods, was not aware of that fact at the time. The bill amounted to $66.43. She promised in July, August, or September, 1846, to pay the bill. She afterwards came to the plaintiff’s store, and returned goods to the amount of $12.50, which were credited on the account; and she promised to pay the balance. She wanted her husband to pay it, but said if he did not she would. That the plaintiff sued the defendant’s husband, at her request, and failed in the suit. Another witness testified that he presented the bill to the defendant in October, 1847. She promised to pay it as soon as she got means to do it, and said she did not intend that the plaintiff should lose the bill; that it had been out of her power to pay it before. She admitted the bill to be correct, and promised to pay it as soon as she got the means. The defendant’s counsel admitted that the defend- ant obtained a decree of divorce in the Court of Chancery, against her husband, for adultery, on the 2d of November, 1846. He also admitted that the defendant, through her trustee, owned a separate estate. The amount due, with interest computed to the time of the trial, was proved to be $60.24. The defendant thereupon moved for judgment, on the ground that the promise proved to have been made by her, after her divorce, was void for want of consideration; and that no sufficient moral obligation existed previous to such promise to pay for the same, as the credit was not given upon the strength of the defendant’s liability, but upon that of her husband. WATKINS v. HALSTEAD. 819 The Court gave judgment for the plaintiff for $60.24, besides costs. The defendant appealed to this Court, assigning the fol- lowing grounds of appeal: 1. Because the summons was not in the form, nor subscribed in the manner, required by the Code of Procedure. 2. Because the promise proved to have been made by the defendant was void for want of consideration, neither was it founded upon any sufficient moral or legal obligation to pay for the goods. 8. Because the promise was in fact a promise to pay the debt of another person, viz.,.the defendant’s former husband ; and was, therefore, void upon two grounds, — first, as being a debt already existing, and, second, for not being in writing. 4. Because the judgment includes $8.10 interest, which the defendant never promised to pay, either before or after her divorce. David P. Hail, for the plaintiff. T. W. Clerke, for the defendant. f By the Court. VanperporL, J. The question is, whether there is a sufficient consideration to support the promise upon which the suit is brought? Our first impressions were rather favorable to the action; but a reference to the authorities and principles upon which the notion of a moral consideration to support a promise rests, has satisfied us that the promise relied upon cannot be sustained. It is not pretended that, indepen- dently of the express promise of the appellant after she obtained her decree of divorce, this action could be sustained. If, when the debt was contracted, when the goods were delivered, any person was liable, it was the husband. We see nothing in the case to exempt him from liability. The appellant was then a JSeme covert, and clearly not liable. Her promise to pay was made after she was divorced ; and, if that promise is not supported by an adequate consideration, the action must fail. Ina note to Wen- nall v. Adney, 2 Bos. & Pul. 252, the rule as to what precedent consideration will support an express promise is laid down with a precision and accuracy that have commended it to repeated judicial approbation. It is there said, that an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which 320 COVERTURE. it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision. This rule was approved by Justice Spencer, in Smith v. Ward, 13 John. 257; by Bronson, J., in Eyle v. Judson, 24 Wend. 97; and by Lord Denman, in Eastwood v. Kenyon, 11 Adol. & Ellis, 438. Tested by this rule, this promise must surely fail. The precedent consideration relied upon never could have been enforced through the medium of an implied promise, because, — 1st, the wife was incapable, at the origin of the consideration, of making a valid promise; and, 2d, the goods, in contemplation of law, were sold on the credit of another (the husband). The original promise, whether express or implied, on the sale of the goods, when the defendant was under coverture, was altogether void. As Pattison, J., says in Meyer v. Howorth, 8 Adol. & Ellis, 467, “such promise was not, like that of an infant, voidable, but was void.” That case was somewhat similar to the present. It was an action for goods sold to the defendant, at her request, and delivered to another, with whom it turned out that she lived in adultery, and for work and labor, money paid, and an account stated. The defendant pleaded coverture at the time of the promise. The plaintiff replied that the defendant, at the time when the debt was contracted, was living separate from her hus- band, and in open adultery with another, to whom she ordered. the goods delivered; that the plaintiff did not, when he dealt with defendant, know that she was a married woman, or that she lived in adultery, and dealt with her as a feme sole ; and that, after the death of the husband, in consideration of the premises, she promised to pay the demand. Although the case turned chiefly on the pleadings (the replication being held to be a departure from the declaration), yet the language of the judges shows they were of opinion that the action on the new promise could not be sustained ; for the reason, as they say, that the first promise was altogether void, not voidable. The idea cannot be tolerated that a precedent consideration can support a sub- sequent express promise, when the law cannot only not raise any implied promise from such consideration, but where even an express promise, made when the consideration originated, would be void. The counsel for the respondent depends upon the case of Lee v. Muggeridge, 5 Taunt. 36, where a feme covert, having an estate WATKINS v. HALSTEAD. 821 settled tu her separate use, gave a bond for repayment by her executors of money advanced, at her request, to her son-in-law. After her husband’s decease, she wrote, promising that her executors should settle the bond. It was held that assumpsit would lie against the executors on this promise of the testatrix. Though that case differs from the present in the important particular that the defendant there had an estate settled to her separate use, yet the case has not been regarded as very good authority, at least in respect to some expressions that dropped from the judges in delivering judgment. In Eastwood v. Kenyon, 11 Adol. & Ellis, 488, Lord DEnmay, in an able opinion, in which he approves of the note to Wennall v. Adney, 3 Bos. & Pul. 294, says that the case of Lee v. Muggeridge must be allowed to be decidedly at variance with the doctrine in this note, which, as before remarked, has been held to be law in 13 John. 257, and 24 Wend. 97. Lord Denman also speaks of the case of Little- field v. Shee, 2 Barn. & Adol. 811, in which Lord TENTERDEN remarked, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise is one which should be received with some limitation. Lord Dernnam regards this sentence as amounting to a dissent from the authority of Lee v. Muggeridge, where the doctrine is wholly unqualified. He seems to think it remarkable, too, that neither in Lee v. Muggeridge, nor in Cooper v. Martin, 4 East, 76, was there any allusion made to the learned note in 3 Bosanquet & Puller, above referred to. (See also Geer v. Archer, 2 Barb. Sup. Ct. 420; Kennedy ». Male, 8 Mo. 698; 8 Ala. 899. On the whole, we are of opinion that the precedent consideration in this case cannot support the subsequent promise; and we hold with Lord Tentsrpen, in Little- field v. Shee, that the doctrine that a moral obligation is a suffi- cient consideration for a subsequent promise, is one which should be received with some limitation. The judgment below must be reversed. 21 322 COVERTURE. 0 Lrz v. MUGGERIDGE. (5 Taunt. 86. Court of Common Pleas, June 29, 1813.) A Moral Obligation a Good Consideration for a Promise. — A moral obligation is a good consideration for a promise to pay. A feme covert, having an estate settled to her separate use, gave a bond for repayment by her executors of money advanced, at her request, on security of that bond, to her son-in-law. After her husband’s decease, she wrote promising that her executors should settle the bond. Held, that assumpsit will lie against the executors on this promise of the testatrix. Tuis was an action of assumpsit brought in consequence of GRANT, M. R., having dismissed a bill filed by the same plain- tiff, against the same defendants, to obtain payment of the bond hereinafter mentioned, but with liberty for the plaintiff to bring such action at law as he might be advised. 1 Ves. & Beames, 118. The plaintiff declared in this Court that before the making the bond thereinafter mentioned, on the 21st of November, 1789, at Lon- don, &c., by indenture between John Muggeridge (1), Mary, the deceased, by her then name of Mary Hiller (2), and John Rey- nolds, clerk, and Stephen Reynolds (3), after reciting that the said Mary was seised of and in, or well entitled unto, the fee-simple in possession of a certain messuage, and that she was entitled to the sums of 3,000/. 4 per cent bank annuities, and 2,000/. 5 per cent bank annuities, and 2,000/. 3 per cent South-Sea annuities, and other debts, moneys, and effects; that a marriage was about to be had between John Muggeridge and Mary, and that the same sums had been transferred into and were then standing in the names of John and Stephen Reynolds, the said messuage, and all the rents, issues, and profits thereunto belonging, and all the estate and interest of Mary therein, were by such indenture granted and released by the said Mary to the said trustees, their heirs and assigns, to hold the same to them and their heirs, to the use of Mary, her heirs and assigns, until the marriage, and afterwards to the use of the trustees, their heirs and assigns, during the joint lives of John Muggeridge and Mary Hiller, upon trust, to pay and apply the rents, &c., thereof, to Mary Hiller, or to such person or persons as she should, from time to time, by any note or writing, under her hand, direct and appoint to receive the same, during the joint lives of husband and wife, for her sole LEE v. MUGGERIDGE. 823 and separate use, exclusive of her husband, and not subject or liable to his debts, control, or engagements ; and the receipt of her, or of such person as she should so direct or appoint to receive the same, should, notwithstanding her coverture, be a good dis- charge for the same; and, after the decease of J. Muggeridge, in case Mary Hiller should survive him, to the use of her, and her heirs and assigns for ever; but in case she should die in his life- time, then to the use of such person, and for such estates, and subject to such limitations, &c., and annual or other charges, &c., and in such sort, manner, and form, as Mary by will, or by any writing in the nature of or purporting to be her will, by her signed and published as therein mentioned, should direct, limit, or appoint; and in default of, until, and in complement of such direction, &c., and as when the several estates, &c., thereby limited, &c., should cease and determine, to the use of Han- nah Hiller, daughter of Mary, in fee; and a power of leas- ing the same premises, in the manner therein mentioned, was given to the trustees; and the indenture also contained a clause whereby the trustees were empowered to sell the messuage in manner therein mentioned, and that the moneys arising from such sale should be placed out and invested at inter- est in the public funds, or in government or real securities, in the names of the trustees and the survivor of them, and the heirs, &c., of such suryivor, to stand and be possessed thereof, and of the annual interest thereof, upon trust for such person as should have been entitled to the hereditaments, and the rents thereof, if the same had not been sold: and it was thereby declared that the trustees should stand possessed and interested in the sums of stock so transferred into their names, in trust for Mary Hiller, until the marriage, and, after the same, upon trust to pay her the interest, &c., thereof, during the joint lives of herself and J. Muggeridge, for her sole and separate use, exclusive of J. Muggeridge, and not to be subject to his debts, control, or engagements; and her receipts for the same were to be a sufficient discharge for the same to the trustees, notwithstanding her coverture; and from and after the husband’s death, in case she should survive him, then upon trust for her, her executors, administrators, and assigns ; but in case she should die in the husband’s lifetime, upon trust, at all times after her decease, to assign and transfer the several and respective funds to such persons, in such shares, and to and 824 COVERTURE. for such intents, &c., and subject to such powers, Wc., as Mary Hiller, notwithstanding her coverture, by will, or by any writing in the nature of or purporting to be her will, to be executed and attested as therein mentioned, should declare, limit, direct, or appoint; and in default thereof, upon trust to pay, transfer, and assign the same unto Hannah Hiller, her executors, &c., for her and their own proper use and benefit; and that the intended mar- riage afterwards took effect between the said J. Muggeridge and Mary, and that, after such marriage had, and during the respec- tive lives of John and Mary, to wit, on the 14th of August, 1799, at London, Mary, by her certain writing obligatory, sealed with her seal, acknowledged herself to be held and firmly bound to the plaintiff in the penal sum of 4,000/., under a condition thereto subscribed, whereby, after reciting that J. Hiller, son-in- law of the said Mary, had applied to her to advance and lend him the sum of 1,999/. 19s., which, not being convenient to her to do, she had applied to the plaintiff to advance the same, to which he had consented on having her bond as above written, and had accordingly advanced to J. Hiller, before the sealing and delivery thereof, the sum of 500/., and had also advanced and lent to him by good bills, to Joseph Hiller’s satisfaction, the further sum of 1,4997. 19s., making in the whole 1,9997. 19s. ; then the condi- tion of the same was, that if the heirs, executors, or administra- tors of Mary did and should, within six months after her decease, pay unto the plaintiff, &c., the full sum of 1,9997. 19s., together with interest for the same at the rate of 51. per cent per annum, or so much of the principal or interest thereof as J. Hiller should have omitted to pay (it being agreed that he should regularly pay the interest thereof to the plaintiff half-yearly, as the same should become due), then the said bond to be void: and the plaintiff averred that he did advance to J. Hiller, before the delivery of such bond, 500/., and did also in Mary’s lifetime, and before the making her promise and undertaking next mentioned, advance and lend to J. Hiller, by good bills to his satisfaction, divers other large sums, amounting in the whole to 1,499/. 19s., making in the whole 1,9997. 19s., whereof Mary had notice; and that Joseph omitted to pay any part of the principal, and paid inter- est thereon only up to the first of July, 1801. He then averred the death of J. Muggeridge afterwards, and before the promise of Mary next mentioned, that she survived him, and that the LEE: v. MUGGERIDGE. 825 principal sum of 1,9997. 19s., so lent by the plaintiff to J. Hiller, and for securing the repayment of which and interest, Mary so made and delivered the aforesaid writing obligatory, and all interest thereon from the 1st of July, 1801, being and remain- ing wholly unpaid, and Mary having full knowledge and notice of the premises, she afterwards, and after the death of her hus- band, J. Muggeridge, and whilst she was sole and a widow, to wit, on the 11th of July, 1804, at London, &c., in consideration ‘of the premises, undertook to the plaintiff that the bond, that is to say, the principal money and interest secured by the bond, should be settled ; that is to say, paid, by her executors ; and the plaintiff further averred that Mary, afterwards, to wit, on the 28th of April, 1811, at. London, &c., died, having first duly made and published her last will and testament in writing, and thereby, after devising the messuage to the defendant, Nathaniel Mug- geridge in fee, and after giving several legacies, as therein particularly mentioned, gave and bequeathed, subject to such lega- cies and to the payment of her just debts, funeral and testamen- tary expenses, all the residue of her estate and effects, real and personal, to the defendant, Nathaniel Muggeridge, and thereby appointed the two defendants executors thereof, who afterwards duly proved the same, and took upon themselves the burthen of the execution thereof; and the plaintiff further averred, that the said principal money, and interest from the time aforesaid, at the time of the death of Mary, was, and still was, wholly unpaid, and that divers goods, chattels, and effects, rights and credits, which were of Mary, the deceased, at the time of her death, more than sufficient to satisfy the principal and interest, and all the other just debts of Mary, had come to and been in the hands of the de- fendants, as executors, to be administered ; and that the defend- ants, as such executors, afterwards, and after the expiration of six months from the death of the said Mary, to wit, on the Ist of November, 1811, at London, &c., had notice of all and singular the premises, and were then requested by the plaintiff to settle the bond ; that is to say, to pay the principal money and interest so omitted to be paid by J. Hiller, according to the form and effect of such promise and undertaking of Mary in her lifetime so by her made; but that they, not regarding such promise and undertaking of Mary, did not, nor would when so requested, or at any time since, settle such bond, or pay the principal and inter- 826 COVERTURE. est, and the same remained wholly unpaid. There was another count, omitting the statement of the settlement, and stating the bond to be given in consideration of the loan made to Joseph Hiller, and the death of John Muggeridge, the husband, and the survivorship and subsequent promise, will, and decease of Mary, probate, the possession of assets, notice, request, and refusal, of the executors. The third count stated a promise made by the deceased while she was sole and a widow, in consideration of money before then advanced to Joseph Hiller at her request, her subsequent will and death, and probate, the possession of assets, notice, request, and refusal to pay by the executors. There were other counts varying the statement, and counts upon an account stated with the deceased. The defendant pleaded the general issue. Upon the trial of the cause at the sittings after Hilary term, 1818, at Guildhall, before Grsss, J., the transaction was proved as stated in the first count, so far as related to the settlement, loan, and bond; a letter was proved, written by the deceased during her widowhood, addressed to the plaintiff, stating “that it was not in her power to pay the bond off, her time here was but short, and that it would be settled by her exec- utors.” The jury found a verdict for the plaintiff, which at the time of the trial was entered generally upon the whole declaration. Shepherd, Sergt., in Easter term last, moved that the plaintiff might be compelled to enter his verdict upon one count only. Per Curiam. It is hard upon a counsel to be compelled to elect, at nisi prius, in the hurry of the cause, upon what tount he will take his verdict ; but he ought afterwards to make an election. Lens, Sergt., for the plaintiff, electing the first count, Shepherd moved in arrest of judgment, on the ground that no sufficient consideration was shown for the promise of the deceased. The Court granted a rule nisi. Lens and Best, Sergts., in this term showed cause. They admitted that when the deceased gave the bond, being covert, she had no power thereby to bind herself; but contended that, notwithstanding that, the promise which, after she was liberated from all restriction, she gave in confirmation of the bond, was obligatory on her. The same payment which was recited to be the consideration of the bond, is a sufficient consideration for the subsequent promise. This differs nothing from the case of infancy, and the many other cases which subsist in the English LEE v, MUGGERIDGE. 327. law, where, though a party is not compellable to make a promise, yet, if he does make it, the promise shall be compulsory on him. In certain cases where the law destroys the remedy, as in the case of the statute of limitations, a subsequent promise, operat- ing by the old consideration, will revive the remedy. So, if an estate be devised for the payment of debts, the law will not intend that it is exclusively for the payment of such debts as are not barred by the statute of limitations; but will intend the de- vise to be for payment of all debts whatever, unless advantage is taken of the statute of limitations by plea. Lord MansriE.p, C. J., thought the rule of nudum pactum was much too strict, and that it was competent for parties to make their own agreements on deliberation, and, if they did so think fit to make them, that they must be subject to them. It is now fully recognized in the law that if there be, even in the strictest morality, the foun- dation for a promise, and the promise be accordingly made, it is binding. It is a new ligamen, though not a new consideration; for, if there were a new consideration, it would be clearly good. Goodright ex dem. Carter v. Strapham, Cowp. 201. Lord Mans- FIELD held, that an account stated by a widow, allowing interest on a mortgage executed by her during coverture, a direction given by her in writing to her tenant to attorn to the mortga- gees, and a paper whereby she purported to surrender the pos- session, amounted to delivery by her, in her widowhood, of the mortgage deed, holding her previous delivery during coverture to be absolutely void. [MansFieLp, C. J. That was certainly a very strong case; and I very well remember the surprise I felt at the time when it was decided, because it was making those acts of the widow equiva- . lent to a formal redelivery of the deed, and others were much surprised at it; but it strongly recognizes the principle that a moral obligation is a good consideration. CHamBrg, J., evinced doubts of this case. Gisps, J. The position in Perkins, § 154, is not that re-execution, but only redelivery, was requisite ; and Lord MansFIELD held that her acts were tantamount to a redelivery. He begins by saying, “I thought it cruel to contend for the wife that the mortgage was void.” ‘A security which was entered into for the maintenance of herself and her family,” “ and after so many solemn acts on her part, it is a proceeding against every principle of natural justice and equity.”’] The doubt on that case has always been on the form in which 828 COVERTURE. Lord MansFIzxp applies the principle, not on the principle itself. There cannot, however, be a stronger case of moral obligation than the present; for the giving this bond of the deceased was the inducement to the plaintiff to lend the money. Trueman v. Fen- ton, Cowp. 544. Lord Mansrietp and the rest of the Court fully recognize the principle, and found on it their decision that a bankrupt, promising after he has obtained his certificate to pay a debt thereby barred, is bound by his promise. Barnes v. Hedley, ante, 2, 184, a promise to pay the principal money lent on a usurious security, with legal interest, was held valid; and many cases to the like effect are there cited. Although no reasons are assigned for the judgment, it must necessarily have proceeded on the ground that a moral obligation will support a promise to pay. Shepherd and Vaughan, Serjts., contra. The case of Doe v. Straphan is favorable to the defendants. The Court were obliged to hold that the deed of a married woman was absolutely void, and by a refinement in law they presumed a redelivery ; but no consideration is necessary to give effect to a deed; therefore the case does not decide that an engagement made by the feme covert, or money paid for her use, was a good consideration for the subsequent act. It will not be contended that the letter amounts to a redelivery of this bond; if it does, let the plaintiff sue on the bond. [Jens disclaimed the redelivery.] Barnes v. Hedley was decided on the ground that the money advanced to the defendant was an old subsisting debt, and therefore a good consideration for the promise.—[Heatu, J. In the case of usury there could be no subsisting debt.—Gusss, J. In this case there was an advance of money.] The feme covert never had the money. Neither can a feme covert by any means create a debt from herself, so that on the declaration the case stands thus: that she, not being indebted, was not liable, and, in consideration of her not being liable, she undertook to pay. If this money had been advanced, not on her bond, but on her mere promise, a subsequent promise to pay, made when she be- : came discovert, would be merely void. A by-gone debt from a third person would be no consideration for a promise to pay. There must be an agreement not to sue, or some new considera- tion moving to the promisor or from the lender. The devise of the property to the executors is no consideration. There is no mutuality or connection between this consideration and this promise ; for the whole transaction had an end before the deceased LEE ¥. MUGGERIDGE. 829 was discovert. The law does not recognize the principle to the extent stated, that every moral obligation of any sort or kind whatever would be a good consideration for a promise. There must be a mutuality. This cannot be a stronger case than if the money had been advanced to the feme covert herself ; yet in Lloyd v. Lee, 1. Str. 94, it was held by Pratt, C. J., where a married woman gave a note as a feme sole, and, after her husband’s de- cease, in consideration of forbearance to sue, promised payment, that the note was not barely voidable, but absolutely void; and that forbearance, where originally there was no cause of action, is no consideration to raise an assumpsit. Barber v. Fox, 2 Saund. 134. Assumpsit by the heir to pay the bond of his ancestor, in consideration of forbearance to sue, was held void. [MANSFIELD, C. J., and Gipps, J. Neither of those cases is applicable, for it did not appear in the last that the ancestor bound his heir in the bond. Forbearance to sue is the forbearing of that which he may legally enforce, and as there was before the renewed promise no right of action, so there could be no forbearance. It might, we will suppose, have been the moral duty of the feme covert in Lloyd v. Lee to pay the note before; but, as she was not legally liable without a promise made by her after she was discovert, the con- sideration so averred did not exist; but it does not follow that no other consideration could have been stated that would have sup- ported the promise.] In the case of bankruptcy and the statute of limitations, the law only suspends the remedy ; it does not ex- tinguish the debt. But here no debt ever existed; the acts of a feme covert not being voidable like those of an infant, but actually void. MansrFietp, C. J. The counsel for the plaintiff need not trouble themselves to reply to these cases; it has been long es- tablished, that where a person is bound morally and conscien- tiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action. The only question, therefore, is, whether upon this declaration there appears a good moral obligation. Now I cannot conceive that there can be a stronger moral obligation than is stated upon this record. Here is this debt of 2,0001. created at the desire of the testatrix, —lent in fact to her, though paid to Hiller. After her husband’s death, she, knowing that this bond had been given, that her son- in-law had received the money, and had not repaid it, —knowing 330 COVERTURE. all this, she promises that her executor shall pay: if, then, it has been repeatedly decided that a moral consideration is a good con- sideration for a promise to pay, this declaration is clearly good. This case is not distinguishable in principle from Barnes v. Hed- ley. There not only the securities were void, but the contract was void ; but the money had been lent, and, therefore, when the parties had stripped the transaction of its usury, and reduced the debt to mere principle and interest, the promise made to pay that debt was binding. Lord MansrigLp’s judgment in the case of Doe on the demise of Carter v. Straphan is extremely applicable. Here, in like manner, the wife would have been grossly dishonest if she had scrupled to give a security for the money advanced at her request. As to the cases cited of Lloyd v. Lee and Barber v. Fox, there was no forbearance; and those cases proceeded on the ground that no good case of action was shown on the pleadings. Heatu, J. Iam of the same opinion. Promises without con- sideration are not enforced, because they are gratuitous, and the law leaves the performance to the liberality of the makers. The notion that a promise may be supported by a moral obligation is not modern: in Charles the Second’s time it was said, if there be an iota of equity, it is enough consideration for the promise. CuamsBre, J. There cannot be a stronger or clearer case of moral obligation than this. The gentleman has done this lady a’ great favor, in going to this expense, and accepting an invalid security ; and when she could give a better security, it became her duty so to do, and she has done it. In the cases cited, it was the plaintiff’s fault if, having it in his power to state a good con- sideration on the record, he neglected so to do. Gisss, J. I agree in this case the plaintiff is entitled to re- cover. It cannot, I think, be disputed now, that wherever there is a moral obligation to pay a debt, or perform a duty, a promise to perform that duty, or pay that debt, will be supported by the previous moral obligation. There cannot be a stronger case than this of moral obligation. The counsel for the defendant did not dare to grapple with this position, but endeavored to show that there was no case, in which a subsequent promise had been sup- ported, where there had not been an antecedent legal obligation at some time or other; from whence he wished it to be inferred, that, unless there had been the antecedent legal obligation, the LEE ¥, MUGGERIDGE. 8381 mere moral obligation would not be a sufficient consideration to support the promise. But in Barnes v. Hedley, certainly Hedley never was for a moment legally bound to pay a farthing of that money for which he was sued; for it appears to have been ad- vanced upon a previously existing usurious contract; and what- ever was advanced upon such a contract, certainly could not be recovered at any one moment. The borrower, availing himself of the law so far as he honestly might, and no further, reducing it to mere principle and interest, does that which every honest man ought to do in like circumstances, — promises to pay it; and that promise was held binding. As to the cases of Lloyd v. Lee and Barber v. Fox, they have sufficiently been answered by my Lord and my brother Cuamsre; that, if a man will state on his declara- tion a consideration which is no consideration, and shows no other consideration on his declaration, although another good consid- eration may exist, when that which he does show fails, he cannot succeed upon the proof of the other which he has not alleged. Now, in the first of those cases, there was clearly no forbear- ance, because forbearance must be a deferring to prosecute a legal right; but no legal right to recover previously existed. Whatever other consideration might exist for the promise, it was not stated in the declaration. It is, therefore, clear that this rule must be discharged, upon the ground that wherever there is an antecedent moral obligation, and a subsequent promise given to perform it, it is of suilicient validity for the plaintiff to be able to enforce it. The case of Lee v. Muggeridge, 5 Taunt. 36 (supra), lays down the rule that a moral obligation is a good con- sideration for a subsequent promise to pay; and applies the doctrine to the promise of a feme made after the de- cease of her husband, to pay a bond made by her during coverture for the repayment, by her executors, of money advanced at her request on the security of such bond to her son-in-law. The doctrine of this case is sup- ported by a number of cases and dicta. See 2 Bl. Com. 445; Atkins v. Banwell, 2 East, 506 (per Lord ELLENBoROvGH, C. J.); Hawkes v. Saunders, 1 Cowp. Rule craahaegente 290, 294 (per Lord MansrFiexp, C. J., and Butter, J.); Gibbs v. Merrill, 3 Taunt. 311 (per Mansrizxp, C. J.); Seaman v. Price, 2 Bing. 439 (per Best, C. J.); Bentley v. Morse, 14 John. 468; Glass v. Beach, 5 Vt. 176; Barlow v. Smith, 4 Vt. 144; Turner v. Patridge, 3 Penn. 172; Commissioners v. Perry, 5 Ohio, 58; Fairchild v. Bell, 1 Rice (S. C.) Dig. 60; Stewart v. Eden, 2 Caines, 150. But this case is believed to be un- sound both in its statement of the gen- eral rule of law, and in its application to the facts of that case. The rule is thus stated in a note to 882 the case of Wennall v. Adney, 3 B. & P. 247, 252: ‘‘ That an express prom- ise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which it is founded could never have been en- forced at law, though not barred by any legal maxim or statute provision.” See 1 Chitty on Conts. (11th Am. ed.) 53, and notes, where the authorities are fully collected. The rule is thus stated by Parsons (1 Pars. on Cont. 5th ed. 434): “A moral obligation to pay money, or to perform a duty, is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was en- forceable at law, but for the interfer- ence of some rule of law. Thus, a promise to pay a debt contracted dur- ing infancy, or barred by the statute of limitations or bankruptcy, is good, without other consideration than the previous legal obligation. But the morality of the promise, however cer- tain, or however urgent the duty, does not of itself suffice for a consideration. In fact, the rule amounts, at present, to little more than permission to waive certain positive’ rules of law which would protect him from a plaintiff claiming a just and legal debt.” See also Littlefield v. Shee, 2 B. & Ad. 811, 813 (per Lord Trenrerpven, C. J.); Monkman v. Shepherdson, 11 A. & E. 411, 415; Beaumont v. Reeve, 8 Q. B. 483, 486, 487 ; Eastwood v. Kenyon, 11 A. & E. 438, 447; Jennings v. Brown, 9 M. & W. 496, 501 (per Parke, B.); Cook v. Bradley, 7 Conn. 57; Mills v. Wyman, 3 Pick. 207; Ed- wards v. Davis, 16 John. 283, note; Smith v. Ware, 13 John. 259; McPher- son v. Rees, 2 Penn. 521; Dodge v. Adams, 19 Pick. 429; Loomis v. New- COVERTURE. hall, 15 Pick. 159; Parker v. Carter, 4 Munf. 273; Hawley v. Farrar, 1 Vt. 420; Farnham v. O’Brien, 22 Me. 475; Warren v. Whitney, 24 Me. 561; Snevely v. Reed, 9 Watts, 396; Ehle v. Judson, 24 Wend. 97; Geer v. Archer, 2 Barb. 420; Shepard v. Rhodes, 7 R. I. 472; Nash v. Russell, 5 Barb. 556; Watkins v. Halstead, 2 Sandf. 311; Yelv. 416 (Metcalf’s ed.); Met. on Conts. 178 ef seg.; 1 Chitty on Conts. (11th Am. ed.), 52 et seg.; 1. Pars. on Conts. (5th ed.) 432 et seq.; 2 Bl. Com. (Cooley’s ed.) 445, note (6). The true principle of distinction seems to be that, where the contract is merely voidable and not void in its in- ception, it may be revived by a subse- quent promise, provided it was origi- nally founded upon an express or implied request by the party benefited and upon a valuable consideration; but where the promise is void ab initio, it is incapable of ratification except by what amounts to a new contract. See 1 Story on Cont. (4th ed.) § 468. Though there are some cases and dicta which recognize and support the doctrine of Lee v. Muggeridge, that a feme may be bound by her express promise after coverture ended, founded upon a moral obligation to pay a debt contracted by her during coverture; (See Hemphill v. McClimans, 24 Penn. St. 371; Goulding v. Davidson, 26 N. Y. 604,' reversing s. c. 28 Barb. 438, where the authorities are fully collected ; Vance v. Wells, 6 Ala. 737; Kennerly v. Martin, 8 Mo. 698; Wilson v. Burr, 25 Wend. 386; Franklin v. Beatty, 27 Miss. 347. See also Viser v. Bertrand, 14 Ark. 273); still the weight of au- thority is deemed to support the propo- sition that the contract of a feme covert is, at common law, absolutely void, and so far a nullity as to be incapable of confirmation by her, otherwise than by a new promise made by her after covert- ure ended, upon some new and valua- 1 This case is given at the end of this note. LEE ¥. MUGGERIDGE, ble consideration, and that the case of Lee v. Muggeridge is not the law. See Met. on Conts. 181, 182; 1 Story on Cont. (4th ed.) § 465 et seg.; 1 Chit- ty on Cont. (11th Am. ed.) 55, 56; 1 Bish. on Mar. Wom. § 39; 1 Pars. on Cont. (5th ed.) 432, note (#), 435, and cases cited; Meyer v. Haworth, 8 Ad. & El. 467; Watkins v. Halstead, 2 Sandf. 311; Maher v. Martin, 43 Ind. 314; Goulding v. Davidson, 28 Barb. 438 (reversed, however, in 26 N. Y. 604); Thompson v. Warren, 8 B. Monr. 488; Waters v. Bean, 15 Geo. 358, 360; Foster v. Wilcox, 10 R. L 444; Hetherington v. Hixon, 46 Ala. 298; Loyd v. Lee, 1 Stra. 94; 2 Saund. 187 (d). See also Cook v. Bradley, 7 Conn. 57, 64; Mills v. Wyman, 3 Pick. 207; Smith v. Ware, 13 Johns. 257; Edwards v. Davis, 16 John. 283, note; Eastwood v. Kenyon, 11 Ad. & E. 438; Shepard v. Rhodes, 7 R. I. 470; Smith v. Allen, 1 Lans. 107; Watson v. Dun- lap, 2 Cranch (C. C.), 14; Viser v. Bertrand, 14 Ark. 274; and the cases hereinbefore cited. The case of Loyd v. Lee, 1 Stra. 94, 333 decided at nisi prius in London, coram Prart, C. J., deB. R., anearly case of some interest, is herewith given in full: ‘A married woman gives a promissory note as a feme sole; and, after her hus- band’s death, in consideration of for- bearance, promises to pay it. And now, in an action against her, it was in- sisted that, though, she being under coverture at the time of giving the note,*it was voidable for that reason; yet, by her subsequent promise, when she was of ability to make a promise, she had made herself liable, and the forbearance was a new consideration. But the Chief Justice held the contrary, and that the note was not bately voida- ble, but absolutely void; and forbear- ance, where originally there is no cause of action, is no consideration to raise an assumpsit. But he said it might be otherwise where the contract was but voidable.! And so the plaintiff was called. Vide 1 Vent. 120, 159; Salk. 29; Yel. 50, 184; 2 Saund. 261; Hob. 18, 216; Pop. 152, 177; Lat. 21, 1412 1 Contract by an infant, and, after he came of age, a promise to pay in considera- tion of forbearance ; it is sufficient to raise an assumpsit. Dyer, 272, marg.; 1 Rol. Abr. 18 4, 50. Contra, vide Southerton v. Whitlock, 2 Str. 690, and Cockshot v. Ben- net, 2T. R. 766. 2 The case of Goulding v. Davidson, 26 N. Y. 604, referred to ante, is as follows: — APPEAL from the Supreme Court. Action brought in the year 1857. The complaint showed that the firm of McCreery & Goulding sold and delivered goods to the defendant, at different times and at her request, for which she gave them three promissory notes, described in the complaint, for the several sums of $200, $374.98, and $176.78. That such firm, at another time, sold and delivered goods to her, and at her request, of the value of $10.50. The complaint contained the follow- ing allegations: *‘ And the said plaintiff further shows, on information and belief, that the aforesaid promissory notes, and each and every of them, were made and delivered to the said McCreery & Goulding, for merchandise sold and delivered by the said McCreery & Goulding, to her at her request, and solely on her credit and responsi- bility, she being then a trader doing business in her own name and for her own per- sonal benefit and advantage, and holding herself out to be an unmarried woman ; but she, nevertheless, as the plaintiff has been informed and believes, alleged that she was, at the time such goods were sold and delivered to her, and all the said contracts in this complaint mentioned entered into, 4 married woman, and was then intermar- ried with one Davidson, of which the said McCreery & Goulding were ignorant. But the plaintiff says, that, after the sale and delivery of the said goods, and after the mak- 834 COVERTURE. ing of the said notes and all the said contracts named, and on or about the Ist of Sep- tember, 1854, her said alleged husband died, and she has not since intermarried ; that after the death of her said alleged husband, and she being then sole, to wit, in or about the month of September, 1855, she, in consideration of the premises and of her duty in that behalf, and of the moral obligation resting upon her to pay for the said goods and merchandise, and to pay the said promissory notes and expenses aforesaid, undertook and promised to and with the said McCreery & Goulding to pay the same and every part thereof.” The complaint contained allegations, showing that the plaintiff had become the sole owner of the several alleged causes of action therein set out; and concluded with a demand of judgment. The defendant demurred, assigning as the only ground that the complaint did not state facts sufficient to constitute a cause of action. Judgment was given upon the demurrer in favor of the defendant, at the special term, which judgment was affirmed at a general term of the Supreme Court in the first district. The plaintiff appealed therefrom to this Court. Andrew Boardman, for the appellant. John H., Reynolds, for the respondent. Batcom, J. As this action was commenced in 1857, it must be determined by the rules of the common law, irrespective of the alterations made by our recent statutes in the laws affecting husband and wife. It cannot be said that the husband of the defendant was ever liable ex contractu to pay for the goods. They were not necessaries, and there is no allegation in the com- plaint that he knew of the purchase of the goods by his wife, or that they ever came to his possession. . ‘ There was, therefore, no implied promise on the part of the husband to pay for the goods. Story says: “If credit be given solely to the wife, the husband is not liable, although they live together, and although he see her in possession of the goods bought. If, therefore, the tradesman should take her promissory note in payment, which would plainly indicate a reliance on her personal credit, the husband would not be liable for the price of the goods, nor on the note; nor need he prove that the goods were not necessaries.” Story on Cont. (4th ed.) § 108; 2 Bright on Husband and Wife, 17, 18. But the vendors could have maintained an action against the defendant and her husband jointly, in the lifetime of the latter, to recover possession of the goods, or for a conversion thereof by the former, on the ground that the goods were fraudulently obtained by the wife, by falsely holding herself out to be unmarried, and doing busi- ness as » trader in her own name and for her own personal benefit and advantage ; and I will not say but an action on the case for damages for the fraud would have lain against the husband and wife jointly. Krnr says: ‘The husband is liable for the torts and fraud of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined with the husband.” 2 Kent’s Com. (9th ed.) 188; 2 Bright on Husband and Wife, 79, 80; 1 Story on Cont. (4th ed.) § 109; Reeve’s Dom. Rel. (2d ed.) 72, 73. By reason of the fraud of the wife, the title to the goods remained in the vendors, and the possession or conversion thereof by the wife was wrongful. Cary v. Hotailing, 1 Hill, 811; Nichols v. Michael, 23 N. Y. 264. Hence the right of the ven- dors to maintain either of the actions formerly called replevin and trover for the goods. When the wife commits a tort by order of her husband, or in company with him, he alone is liable; and, in case of his death, the cause of action does not survive against the wife. Reeve’s Dom. Rel. (2d ed.) 72. But if the tort be not committed in the LEE Vv. MUGGERIDGE. 3385 presence of the husband, or by his order or request, the wife is also liable, and must be joined in the suit with her husband. The wrong is in such a case considered as her wrong, and the husband is answerable with the wife, for a similar reason to that of his liability for her contracts before marriage. Reeve’s Dom. Rel. (2d ed.) 72. I am of the opinion, a cause of action for such a wrong survives against the wife on the death of her husband. It was held by Lord Extensoroven, in Woodman v. Chap- man, 1 Camp. 189, that a debt contracted by the wife before marriage survives against her upon the death of her husband; and such holding was undoubtedly cor- rect. It is laid down by Macqueen on Husband and Wife (Law Library, 4th series, vol. 84, p. 128), that ‘‘causes of action survive against the wife, which accrued during the coverture, in respect of her real estate, or for any personal wrongs done by her when sole.” The only authority cited by him for this rule is the note by Lord Came- BELL to the above case of Woodman v. Chapman; and the language of that is, that “ causes of action survive to the wife, which accrued during the coverture, in respect of her real estate, or for any personal wrong done her.” But whether the doctrine laid down by Macqueen is or is not supported by the authority cited by him, it rests upon the same principle that makes the debts of the wife, contracted before her marriage, which are not recovered of the husband and wife during the life of the former, sur- vive against the latter, and therefore is good law. The personal representatives of the husband cannot be charged with such debts; and, on similar principles, they must be exempted from liability for torts of the wife committed in the absence of her husband, and not in his business, and without his concurrence or knowledge ; for such torts, as has already been seen, are considered her torts. Cox v. Kitchen, 1 Bos. & Pul. 338. The only authority I have found which seems to militate against any of the fore- going conclusions, is the decision of the Court of Exchequer in Fairhurst & Wife v. The Liverpool Adelphi Loan Association, 26 Eng. Law & Eq. 393, where it was held that an action will not lie against a husband and wife, for a false and fraudulent representation by the wife to the plaintiffs that she was sole and unmarried at the time of her signing a promissory note as surety to them for a third person, whereby they were induced to advance a sum of money to that person. The opinion of Judge Reeve isto the contrary. Reeve’s Dom. Rel. (2d ed.) 72, 78. But if the decision of the Court of Exchequer be correct, it is placed on the same ground on which an infant is exempted from liability for damages in actions for wrongs, when founded on contract; and when goods are sold to an infant on credit, and he avails himself of his infancy to avoid payment, the vendor may reclaim the goods, as having never parted with his property in them. Badger v. Phinney, 15 Mass. 859. Hither what was formerly called trover or replevin, may be maintained for the goods in such a case. Wallace v. Morss, 5 Hill, 391. In such # case the action is brought in dis- affirmance of the contract, and on the ground that the vendor still retains the title to the goods. Upon the same principle, either an action to recover possession or one for conversion could have been maintained against the defendant and her husband, for the goods sold to the former in this case. And should we concede that the ven- dors could not have recovered in an action against them for damages merely, for the fraud of the wife in obtaining the goods, there still remained two kinds of action, either of which could have been maintained against her as well as her husband ; and the cause, therefore, survived against the defendant on the death of her hus- band. If these views are correct, the promise of the defendant, after the death of her hus- band, to pay for the goods, and to pay the notes given for them, was an undertaking by her to pay a demand for which a cause of action existed against her, from the 836 COVERTURE. time she purchased the goods, and therefore was founded on a good and sufficient consideration, and is clearly obligatory upon her. There is another view of the case, which shows the promise of the defendant to pay for the goods and pay the notes she gave therefor was founded upon a sufficient consideration. ‘ I am aware the general rule is that a moral obligation is not alone a sufficient legal consideration to support a promise. 1 Story on Cont. (4th ed.) §§ 465-469; Chitty on Cont. (9th Am. ed.) pp. 48, 49; 24 Wend. 97; 1 Hill, 632 (5th ed.) 306. And the Supe- rior Court of New York City went so far in Watkins v. Halstead, 2 Sand. (S. C.) 311, which case was followed by the Supreme Court in this, as to adopt the language of a note to Wennall v. Adney, 3 Bos. & Pul. 252, where it was said that “an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obliga- tion on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.” But this rule is too broad, or at least there are exceptions to it. For there are cases where a moral obligation, that is founded upon an antecedent valuable consideration, is sufficient to sustain a promise, though the obligation on which it is founded never could have been enforced at law. In other words, a moral obligation is sometimes a sufficient consideration for an express promise, if at some time or other a good or valuable consideration has existed, al- though there never was a time prior to such express promise, when any portion of the precedent consideration could have been enforced at law or in equity, through the medium of any promise. To illustrate: If money be loaned upon usury, and usurious security taken therefor, such security is absolutely void, and no action can be maintained upon it; nor is it evidence of an indebtedness, upon the strength of which the law will imply a promise on the part of the borrower to repay the amount actually received by him. The express contract being absolutely void, no implied obligation can spring from it. The lender cannot waive or abandon the usurious agreement so far as it is illegal, and enforce it for the residue. The contract is one; no matter what the nature or numbers of the securities may be, all are void. The contract cannot be broken up and resolved into its original parts or elements, so as to get rid of the illegal taint, without the consent of both parties. But if it is mutually abandoned, and the securities are cancelled or destroyed, so that they can never be made the foundation of an action, and the borrower subsequently promise to pay the amount actually received by him, such promise is legal and binding. It is founded upon an equitable and moral obligation, which is sufficient to support an express promise. The money actually lent, when legally separated from the usurious pre- mium, is a debt in equity and conscience, and ought to be repaid. Per SurnEr- LAND, J., in Hammond v. Hopping, 13 Wend. 511, 512; Miller v. Hull, 4 Denio, 104 ; Chitty on Cont. (9th Am. ed.) 712, 713; 1 Story on Cont. (4th ed.) § 603; 2 Pars. on Cont. (8d ed.) 897 ; Parson’s Mercantile Law, 257 ; Barnes v. Headley, 2 Taunt. 184. In Lee v. Muggeridge, 5 Taunt. 35, a feme covert, having an estate settled to her separate use, gave a bond for repayment, by her executors, of money advanced at her request, on security of that bond, to her son-in-law; and, after her husband’s decease, she wrote, promising that her executors should settle the bond, and it was held that assuwmpsit would lie against the executors on such promise of the testatrix. That case was not overruled by the decision in Meyer v. Haworth, 8 Adol. & Ellis, 467; though it must be conceded it was very much weakened as an authority in England by Eastwood v. Kenyon, 11 Adol. & Ellis, 488. And Littlefield, Executrix, &ec. v. Shee, 2 Barn. & Adol. 811, was put mainly upon the ground that the price of the LEE v. MUGGERIDGE. 837 goods originally constituted a debt from the husband, though Lord Tewrerpen in deciding it said he must also observe, ‘‘that the doctrine that a moral obligation is a, sufficient consideration for a subsequent promise is one which should be received with some limitation.” Lee v. Muggeridge has never been overruled in this State. Smith v. Wane, 18 Johns. 257, does not do it; for that was a case to recover back money the plaintiff had paid the defendant for land, the former claiming there was « deficiency in the number of acres; and Judge Srencenr, in delivering the opinion of the Court, said: ‘It cannot be pretended that the defendant was under any moral obligation to pay for the deficiency in quantity of land sold and conveyed to the plaintiff.” All that was decided in Ehle v. Judson, 24 Wend. 97, was that a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not a sufficient consideration to support a promise. And Judge Bronson, who gave the opinion of the Court, said: ‘The moral obligation to pay a debt barred by the statute of limitations or an insolvent’s discharge, or to pay a debt con- tracted during infancy or coverture and the like, will be a good consideration for an express promise.” In Wilson v. Burr, 25 Wend. 386, it was held the plaintiff would recover his claim of $200, counsel fees; and the Court said: ‘It is true, at the time of the retainer the defendant was a seme covert; but she was soon after divorced, and it is to be presumed subsequently recognized the services rendered.” There are some, perhaps many, broad assertions in our reports going to show that the promise of the defendant in this case is not obligatory ; and the reasoning tends that way in the following cases: Geer & Wife v. Archer, 20 Barb. 420; Nash v. Russell, 6 id. 556; and Ingraham v. Gilbert, 20 id. 151. But there are equally broad expres- sions in our reports the other way; and the reasoning in such cases as Doty v. Wil- son, 14 Johns. 378, and others I might mention, certainly tends to the conclusion that such promise is binding, as, in justice, it clearly ought to be. The goods were sold and delivered by the vendors, with the expectation on their part that they would receive pay for the same, and upon the defendant’s express promise that she would pay for them, and under such circumstances that the vendors had no claim therefor against her husband. The goods were valuable, and the defend- ant personally received the benefit of them; and the price she agreed to pay therefor is a debt which, “in equity and conscience,” she ought to pay. In other words, she ought in common honesty to pay for the goods. Her promise so to do was made for value actually received by her personally ; and it was to discharge a moral obli- gation founded upon an antecedent valuable consideration, created for her own per- sonal benefit, and at her special instance and request; and I am of the opinion the law makes such promise obligatory upon her. It seems to me that the defendant’s moral obligation to pay this debt is so inter- woven with equities as to furnish a good consideration both upon principle and authority for her promise to pay it. I will add, that the fact is controlling with me that the defendant personally received a valuable consideration for the money she has promised to pay, and this distinguishes the case from some that seem to weigh against the conclusion that the defendant’s promise is valid. It is unnecessary to notice any of the recent changes made by the legislature in the law affecting husband and wife, as they are all inapplicable to the case, which must be determined as the law was when the alleged cause of action accrued. For the foregoing reasons, I am of the opinion the complaint states facts sufficient to con- stitute a cause of action, and that the judgment of the Supreme Court should be re- versed, and judgment given for the plaintiff on the demurrer, with costs, but with liberty to the defendant to apply to the Supreme Court for leave to answer on terms. Davizs, J. A natural or moral obligation is one which cannot be enforced by action, but which is binding on the party who incurs it, in conscience and according : 22 838 COVERTURE. to natural justice. 2 Bouv. 200. And the instance of such an obligation is given, as when the action upon the contract is barred by the statute of limitations, a natural or moral obligation still subsists, although the civil obligation is extinguished. A natural obligation is a sufficient consideration for a new promise. 5 Binn. 88; 2 id.591; Yelv. 41u,n.1; Cow. 289; 2 Bl. Com. 445; 8B. & P. 249, n.; 2 East. 506; 8 Taunt. 811; 5 id. 86; Yelv. 41, 6n.; 8 Pick. 207; and other cases hereinafter referred to. The very able note to Wennall v. Adney, 3 Bos. & Pul. 249, contains a review of all the cases, and a criticism upon the decision of Lord MansFrieLp; and the writer says that the instances adduced by him as illustrative of the rule of law, do not carry that rule beyond what the older authorities seem to recognize as its proper limits, for in each instance the party bound by the promise had received a benefit previous to the promise. Indeed, it is said, it seems that in such instances alone will an express promise have any operation, and there it only becomes necessary because, though the consideration was originally beneficial to the party promising, yet, inasmuch as he was not of a capacity to bind himself when he received the benefit, or is protected from liability by some statute provision or some stubborn rule of law, the law will not, as in ordinary cases, imply an assumpsit against him. Again, it is remarked that Lord MaNnsriELp appears to have used the term moral obligation, not as expres- sive of any vague and undefined claim arising from nearness of relationship, but of those imperative duties which would be enforceable by law, were it not for some positive rule which, with a view to general benefit, exempts the party in that par- ticular instance from legal liability. Were it not for the legal disability in the party making the contract at the time it was so made, the law would imply a promise. But, by reason of such disability, the contract cannot be enforced, unless there be an ex- press promise to fulfil after the disability ceases. And the moral obligation thus to perform the contract made under disability has been held to be a good consideration to support the express promise. Thus, Judge Bronson said, in Ehle v. Judson, 24 Wend. 97, that the moral obligation to pay a debt barred by the statute of limitations or an insolvent discharge, as to pay a debt contracted during infancy or coverture and the like, will be a good consideration for an express promise. But a merely moral or conscientious obligation, unconnected with any prior legal or equitable claim, is not enough. The doctrine thus laid down, and stated with great precision and accu- racy, is fully sustained by the authorities. Buxuzr, J., in Hawkes v. Saunders, Cowp. 289, says the point is whether an obligation in justice, equity, and good conscience to pay a sum of money be or be not a sufficient consideration in point of law, to support a promise to pay that sum? If such a question, he says, were stripped of -all author- ity, it would he resolved by inquiring whether law were a rule of justice, or whether it were something that acts in direct contradiction to justice, conscience, and equity. He says the matter has been repeatedly decided, and refers to numerous authorities. In Bonner v. Hedley, 2 Taunt. 184, a promise to pay a void and usurious debt was held binding on the party making it; and, although the promisor was not, and never had been, under any legal obligation to pay the debt, yet it was held that in conscience and equity he was bound to pay. the money actually borrowed, and that such moral. obligation formed a good consideration for a promise to pay it. Lee v. Muggeridge, 5 Taunt. 85, is a case often referred to; and was regarded as a controlling authority until a late period, when its soundness has been in some degree questioned. There a feme covert, having a separate estate, gave a bond for the repay- ment by her executors of a certain sum of money advanced at her request on the security of that bond to her son-in-law. After her husband’s decease she wrote prom- ising that her executors should settle the bond. It was held that assumpsit would lie against the executors upon the promise of their testatrix. MansrFigtp, C. J. said that it had long been established that where a person is bound morally and cons LEE v. MUGGERIDGE. 839 scientiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action. And the judges say that the case is not distinguishable from Bonner v. Hedley (supra); that in that case certainly, Hedley was never for a moment legally bound to pay a farthing of that money for which he was sued. Bent- ley v. Morse, 14 Johns. 468, is a case similar in principle to Hedley v. Bonner. In that case a debt had been paid, and a receipt taken therefor as evidence of the pay- ment. A suit was brought to recover the same debt, and, the receipt not being produced, a recovery was had, and the amount paid the second time. There was, therefore, no legal liability on the part of the creditor to refund the money, but a moral and conscientious obligation tu do so, as he had no claim morally to the money paid the second time. It was held that a promise to repay on production of the receipt was founded on a good consideration. The Court says: “The debt having been paid, the recovery in the former action was clearly unjust. And though, in consequence of his neglect, the defendant in error lost all legal remedy to recover back his money, yet there was such a moral obliga- tion on the part of the plaintiff in error to refund the money as would be a good consideration to support an assumpsit or express promise to pay if. The moral obligation is as strong as any in the cases in which it has been held sufficient to revive a debt barred by statute or some positive rule of law. It is like the prom- ise of an infant to pay a debt contracted during his nonage, or of an insolvent or bankrupt to pay a debt from which he is discharged by his certificate. Littlefield cv. Shee, 2 Barn. & Ad. 811, was decided in 1831; and on the ground that in that case’ the debt which the wife promised to pay after she became discovert was the debt of her husband, and that she was under no moral obligation to pay the same. Butcher’s meat had been furnished to the wife for the space of about six months, while her hus- band was absent abroad, and after his death she promised to pay it. Lord Trn- TERDEN held that the plaintiff had failed to show that he had supplied the defendant with the meat; but that it appeared it was furnished to her while her husband was living, so that the price constituted a debt due from him. They were, therefore, of the opinion that the declaration was not supported by the proof, and the nonsuit was right. Lee and Muggeridge is referred to, and it is remarked that all the circumstances in that case showed that the money was in conscience due from the defendant. In Eastwood v. Kenyon, 11 Adol. & Ellis, 438, the broad doctrine assumed to be laid down in Lee v. Muggeridge is criticised by Lord Denman; and it is said that the doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it. And he quotes with approbation the note to Weunall v. Adney, supra, “ that an express promise can only revive # precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original cause of action, if the obligation on which it is founded never could have been so enforced at law, though not barred by any legal maxim or statute provision. And he thought the case of Barnes v. Hedley was fully consistent with the doctrine of this note. Watkins v. Halstead, 2 Sandf. S. C., was a case of goods sold under such circumstances that the husband was clearly liable for them, and that no moral obligation rested upon the wife to pay for them. The promise after she was divorced from her husband to pay for them was but a promise to pay the debt of another person; and the Court held, following Littlefield v. Shee, that there was no good consideration to support the promise, I should judge from the statement of the case that the goods were origi- nally charged to the husband and.sold on his credit, with the understanding that, if he did not pay for them, the wife would. Geer & Wife v. Archer, 2 Barb. S. C. 420, was a case where it was held that a 840 COVERTURE. mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not sufficient to support an express promise, and the rule as laid down in the note in Bos. & Pul. (supra) is cited as containing the true test. In the present case, can there be any doubt but that the defendant, if she had been a single woman, would have been under both legal and equitable obligation to pay for these goods? The law would have raised, in that event, an implied promise to pay for them ; an express promise, therefore, revived a precedent good consideration,’ which might have been enforced at law through the medium of an implied promise. The inability of the wife to contract is precisely the same as that of an infant, and cannot be distinguished from it. Ifa sale and delivery of goods to an infant imposed a moral obligation upon him to pay for them, it is not perceived why a sale and delivery of goods to a married woman, as in the present case, solely on her credit and responsibility, she being a trader, doing business in her own name and for her own personal benefit and advantage, and holding herself out as an unmarried woman, does not impose upon her the same moral obligation to pay forthem. This case is dis- tinguishable, therefore, from those of Littlefield and Shee and Watkins v. Halstead, in that the debt in the present case was never that of the husband. The wife here was a sole and separate trader on her own account, and for her own personal advan- tage, and not by permission of the husband. He was not, therefore, liable for the debts contracted by her; neither would the property so purchased by her be liable to the payment of his debts. Sherman v. Elder, decided at March term, 1862, 24 N. Y. 381; 2 Bright on Husband & Wife, p. 800; Smith v. Silliman, 11 How. Pr. 868. This is not in conflict with the case of Lovett v. Robinson, 7 How. Pr. 105, as that case was put on the ground that the wife was living and cohabiting with the husband; and it was held there that the goods then purchased by her became those of her husband, and the title thereto was vested in him. It follows from these views that the debt referred to in the complaint, under the circumstances therein detailed, was not the debt of the defendant’s husband ; but that, morally and equitably, she ought to pay the same. That, but for the rule of law prohibiting a feme éovert from entering into or making a legal contract, the law would have implied a promise on her part to pay for the same; and that, after such disability ceased, she having made an express promise to pay the price of such goods, the moral obligation or duty resting on her to make such payment formed a good consideration for such promise, and she is consequently liable to pay for the same. The judgment of the Supreme Court should therefore be reversed, and judgment should be given for the plaintiff on the demurrer, with costs. Emorr, J. The action of the plaintiff must, of course, rest upon the express promise of the defendant, made after her coverture ended, to pay the debts or the notes which represent them. The question is whether the previous sale and delivery of the goods to the defendant, during coverture, was a sufficient consideration to sustain the promise. The authorities upon the subject of a promise by a married woman after coverture, to pay a debt incurred or an obligation given by her during coverture, are not uniform either in their reasoning or their conclusions. One of the earliest cases is Lloyd v. Lee, 1 Strange, 94, where a married woman gave a note as a feme sole, and after her husband’s death promised to pay it. It was held that the note was void, and forbearance to sue it constituted no consideration for a promise to pay it. It will be observed that there is nothing in this case to show what was the original consideration of the note. On the other hand, in Lee v. Muggeridge, 5 Taunt. 85, a married woman gave a bond, while married, to a person for money advanced by him to her son-in-law at her request. After her husband’s death she promised to pay that bond, and assumpsit was sustained upon that promise. The language of Sir Jams MansFizLp, and of all the other judges of the Court of Common Pleas, was very LEE v. MUGGERIDGE. 841 strong in this case, to the sufficiency of a mere moral obligation as a consideration for a subsequent promise. But this language has been questioned, and the authority of the decision weakened, by the later English authorities. Thus, in Littlefield v. Shee, 2B. & A. 811, Lord Tenrrerpen, delivering the judgment of the Court of King’s Bench, held that a promise by a married woman to pay for goods which had been previously supplied to her during coverture was void; because the goods were in law supplied to her husband, and the price was a debt from him, not her. Lord TEnrerpEN observed in his judgment, that the doctrine that a moral obligation is a sufficient con- sideration for a subsequent promise is one that should be taken with some limitation. Again, in Meyer v. Haworth, 8 A. & E. 467, Lord Denman and all the other judges of the King’s Bench adhered to this doctrine upon demurrer in a similar case. The Lord Chief Justice said: “The record states that goods were supplied to a married woman who, after her husband’s death, promised to pay. This is not sufficient. The debt was never owing from her.’ The cases were again adverted to, and the law upon the subject of a moral obligation as a consideration for a promise discussed at some length by Lord Denman, in Eastwood v. Kenyon, 11 A. & BE. 438. The action there was against the husband of a woman who had inherited lands. The plaintiff had voluntarily expended money in the improvement of the lands, while she was sole and an infant. After she came of age, she assented to it and promised to pay the account; and after marriage the defendant assented to the account, and prom- ised to repay the plaintiff; and the suit was brought on this express promise. It was held that the consideration shown was past and executed, and not at the request of the defendant or of his wife, and therefore was a mere voluntary courtesy, and would not sustain the action. The case of Lee v. Muggeridge was again questioned in this judgment. In our own Courts there are dicta in many cases to the effect, that the moral obligation to pay a debt contracted during coverture will be a sufficient con- sideration for an express promise after the disability is removed. 24 Wend. 99; 25 id. 886-888. The question, however, was never distinctly presented, as far as I am aware, until the case of Watkins v. Halstead, 2 Sandf. 8. C. 311, where it was deter- mined by the Superior Court of New York adversely to the doctrine advanced by the plaintiff. The decision is approved by Parsons, in his work on Contracts (vol. 1, pp. 858-861), and was followed by the Court below in this case. There is a distinction taken in some of the cases between obligations which are void and such as are only voidable ; and it is said that where the original undertaking was void it cannot form the basis or consideration for a new promise, although it may where it is only voidable. Thus, in Meyer v. Haworth, 8 A. & E. 467, Pat- TERSON, J., says, speaking of a supposed promise of the defendant while a married woman, upon the sale of the goods: ‘“‘ Such promise was not, like that of an infant, voidable, but was void.” This distinction, however, applied to the original express contract alone, when there is one, will not explain all the cases. Thus, where money is lent upon an usurious contract, which is totally void; yet, if the borrower sub- sequently promise to repay the money, that promise will be enforced by the Courts. 2 Taunt. 182; 19 John. 147. On the other hand, where a creditor obtained from the debtor a promissory note for the residue of his demand, as a condition of his joining with the other creditors in a composition deed acknowledging satisfaction by the receipt of a part of their debts, the note is void in law as a fraud upon the other creditors, and u subsequent promise to pay it was held without consideration. 2 T. R. 763. Where the original contract or promise is in itself the whole consideration upon which the new promise rests, the distinction which has now been adverted to is gufficient to dispose of the case. If that contract was wholly void, it alone will not sustain a subsequent promise to fulfil it. Thus, in Lloyd v. Lee, 1 Strange, 94, 842 COVERTURE. already quoted, the new promise of the defendant rested entirely upon her having given a note during coverture. This note was void; and as there was no proof of any other consideration either for the note or the new promise, the action was not sustained. But where there is, beyond or before the void security or agreement, a moral obligation or duty, arising from benefit received or otherwise, which would raise an implied promise, except for a disability to make a promise, which the law imposes, —a promise made after the disability is removed can rest upon this benefit and duty as a sufficient consideration. The learned note to Wennall v. Adney, 3B. & P. 247-252, which has been cited and approved by the judges in subsequent cases, requires some qualification or explanation, where it states that, ‘‘if a contract between two persons be void, and not merely voidable, no subsequent express promise will operate to charge the party promising, even though he has received a benefit from the con- tract.” This remark is strictly true as to a promise founded upon the contract alone ; but the case of usurious loans, which the borrower will be held to pay upon a sub- sequent promise, shows that when, behind the void contract, there is a sufficient consideration, it will sustain the subsequent promise. The rule stated in the residue of the note needs no qualification, and has often received express judicial approval. “ An express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise, had it not been suspended by sonie positive rule of law; but can give no original right of action, if the obligation on which it is founded could never have been enforced at law, though not barred by any legal maxim or statute provision.” ‘The receipt of money, or of any benefit or advantage, from the promisee, at the request of the promisor, will ' sustain a promise to repay it, although the money was advanced or the benefit received under a void contract, provided that the consideration for that contract itself was not tarnished with fraud or otherwise invalid. So, when the promisor was, at the time of the receipt of the benefit, under a mere disability to contract to make it good, arising from a rule or maxim of law, and although such a contract could neither be expressed nor implied at the time, yet a subsequent promise, after the disability is removed, will rest upon the original benefit, passing over any invalid contract or promise at the time. But this rule would not help the case of a subsequent promise to pay for goods sold or delivered to the promisor while a married woman, at common law. The difficulty in such a case was that which was seen in the two cases in the Court of King’s Bench to which I have referred: 2 B.& A. 811; 8 A. & E. 467. In such cases, at common law, the goods were, in law, supplied to the husband, and the price was a debt owing from him, and never from her. If, therefore, she gave a note, or other express obligation, it was not only void, but had no consideration. Even if her dis- ability to contract were removed, or did not exist, yet, as long as the rules of ‘the common law as to marital rights remained unchanged, there was nothing from which the law could imply a promise to pay; because the goods supplied to her became her husband’s, and she acquired no beneficial interest in them. The law might imply a promise on his part to pay for them, but not on hers. For this reason, I agree that at common law a promise by a woman, after coverture, to pay for goods supplied to her, or at her request, while married, could not be sustained. But the statutes of this State, passed in 1848 and 1849, in respect to the rights of married women, give a different aspect to such a question. Laws of 1848, p. 308 ; id. 1849, p..528. Since these statutes, any married female may take from any person, other than her husband, and convey personal property ; and it will not be subject to the disposal or to the debts of her husband. It is true that these statutes did not remove the disability of married women to make executory contracts ; so that any note or obligation which a married woman shold make upon the purchase or WHITAKER v. WHITAKER. 843 2 : WHITAKER v. WHITAKER. (1 Dev. 310. Supreme Court of North Carolina, December, 1827.) Choses in Possession in the hands of a Bailee subject to the Marital Rights. —A slave hired out is a chose in the possession of the owner. Therefore, when the slave of a feme sole was, before her marriage, hired for a year, and the hus- band died during the term, the property does not survive to the wife, but vests in the personal representative of her husband. DETINUE for a negro, and, on the trial, the jury found specially the following facts: The slave in question was the property of Elizabeth Whitaker, and was by her hired out for the year 1825, she being of full age and unmarried. During the term, Eliza- beth intermarried with the defendant’s testator, who died before acquisition of property would be void. It is true, also, that the same disability pre- vented the implication of any contract on her part to pay for such property. But personal property, sold or conveyed in any manner to a married woman in good faith, since the statute, by any person other than her husband, is hers, and not his. It becomes her sole and separate property, and he is neither entitled to it nor bound to pay for it, For this reason, no debt or engagement is implied on his part in consequence of its acquisition. On the other hand, such acquisition is directly beneficial to the married woman; it becomes hers, and not her husband’s ; and if it were not that the law dis- abled her, a promise to pay for it would at once be implied by the law from the fact of its acquisition. The transactions stated in the complaint, in the present case, occurred in 1852, after those statutes. They are to be taken to be actual and bond jide sales and trans- fers of property to the defendant, who was then a married woman. She became, by these transfers, the owner of these goods; and although she was incapable of any agreement, express or implied, to pay for them, yet that was merely on account of the existence of a legal rule or maxim. The delivery of the goods to her, at her request, under the statute which made them hers, and not her husband’s, was a good consideration, out of which an implied promise would at once have arisen, had it not been suspended by the rule of law as to her disability to make an executory agree- ment. When that disability was removed, it furnished a sufficient consideration for her express promise upon which these actions were founded. The case comes pre- cisely within the rule of the note to Wennall v. Adney ; and it is relieved of the difficulty which was fatal to the plaintiff’s action in the other cases referred to. The demurrer should have been overruled in the Court below, and their judgment should be reversed. Denso, C.J., Sevpen, Rosexrans, Marvin, and Wricut, JJ., concurred. The latter read an opinion, in which he only considered the last question discussed in the opinion of Judge Batcom, agreeing with him. Judgment reversed and rendered for plaintiff on the demurrcr. 844 COVERTURE. its expiration. At the end of the year 1825, the slave came into the possession of the widow, the former owner, who agreed with the defendant to pay hire for it, if in law it belonged to him. Elizabeth, the widow, was in possession of the slave under this agreement, until she intermarried with the plaintiff’s intestate, who continued it until his death, when the defendant took the slave into his possession, claiming as executor of Taylor. Upon this verdict, his honor, Judge DANIEL, gave judgment for the plaintiff; and the defendant appealed. No counsel appeared for either party in this Court. Henperson, J. The case depends upon the effect which a contract of hiring has upon the possession. If it divests the owner of the possession, and places it in the person hiring, the thing hired ceases to be a chose in possession, and becomes a chose in action, and therefore does not pass absolutely, but sub modo only, from the wife to the husband, upon their intermarriage. A contract of hiring is not a sale of the thing for the period of hiring ; the property remains as it did before ; it is a contract for the use of the thing hired. The hirer is a mere bailee, or locum tenens, for the owner, and only holds the property for him. The general property draws to it the possession, as long as the occu- pant, or qualified owner, retains the occupancy. At any rate, the possession of the hirer is not a possession for himself; for nothing is more common than the maxim, that the possession of the bailee is that of the bailor, and hiring is a species of bail- ment. If the hirer possessed for himself, he could not possess for another, whose possession has continuance, and is exclusive of his. He is called the qualified owner, not to express his ownership, or that he has any part of the property, but for want of a proper term to express his interest in it. I therefore think the owner’s possession is not disturbed by the hiring; that the occupancy of the hirer is perfectly consistent with it, and there- fore does not divest it; that the owner has such a possession that he may either sell or give the property. Of course, in the present case, the marriage was a complete gift of the slave in question, to the first husband. For an inability to give, sell, or transfer is the reason why the marriage is not a perfect gift of the wife’s choses in action to the husband, they being incapable of a complete transfer, — not for the reason generally given, that it is selling a right of going to law, and thereby stirring up law- WHITAKER ¥. WHITAKER. 345 suits, but because such things are not property, and property only is the subject of transfer. Per Curiam. Judgment reversed, and judgment for the de- Sendant. To the point that, in general, the husband’s right to the wife’s choses in possession belonging to her in her own right is, at common law, immediate and absolute to the extent of his wife’s in- terest therein, that they are subject to his absolute disposition during his life, and to testamentary disposition by his will, and that they are assets in the hands of his administrators or execu- tors, and this whether belonging to her at the time of marriage by actual or beneficial possession, or subsequently acquired by gift, bequest, or purchase, see also the following authorities: 2 Kent’s Com. 143; Reeve’s Dom. Rel. *1; Schouler’s Dom. Rel. 112; Bing. on Inf. & Cov. * 208; Legg v. Legg, 8 Mass. 99; Commonwealth v. Manley, 12 Pick. 173; Washburn »v. Hale, 10 Pick. 429; Sheriff ». Buckner, 1 Litt. 126; Morgan v. The Thames Bank, 14 Conn. 99; Pitts v. Curtis, 4 Ala. 350; Hyde v. Stone, 9 Cow. 230; Hopkins v. Carey, 23 Miss. 54; Clarke v. Mc- Creary, 20 Miss. 352; Clevenstine’s Appeal, 15 Penn. St. 498; Bell v. Bell, 1 Geo. 640; Hill v. Hill, 1 Strobh. Eq. 1; Blanchard v. Blood, 2 Barb. 352; Weiser v. Boys, 4 Harring. 249; Sad- ler v. Bean, 9 Ark. 202; Martin v. Poague, 4 B. Monr. 524; Gregg v. Soward, 9 Dana, 332; Andrews v. Hartsfield, 3 Yerg. 39; Stockton v. Martin, 1 Brev. 71; Ordinary v. Gei- ger, 1 Brev. 484; Wiggins v. Blount, 33 Geo. 409; Bridgford v. Riddell, 55 Ill. 261; Davis v. Zimmerman, 67 Penn. St. 70; Nolen’s Appeal, 23 Penn. St. 87; Quigly v. Muse, 15 La. Ann. 197; Bell v. Bell, 36 Ala. 466, s. c. 37 Ala. 536 ; Jordan v. Jordan, 52 Me. 320. Under the peculiar jurisprudence of some of the States, however, the money and other goods and chattels of the wife are placed upon the same footing with her choses in action, and so do not become the absolute property of the husband until reduced by him to pos- session. See Caswell v. Hill, 47N. H. 410, and cases there cited. See also Ireland v. Webber, 27 Ind. 259. So by the common law, when the real estate of the wife is sold by the husband and wife, the moneys or chat- tels received from such sale are personal property, and become the property of the husband, and subject to the pay- ment of his.debts. Sheriff v. Buckner, 1 Litt. 126; Hamlin v. Jones, 20 Wisc. 536; Crosby v. Otis, 832 Me. 256; Mahoney v. Bland, 14 Ind. 176; Mar- tin v. Martin, 1 Comst. 473, In Sliter v. McClanachan, 2 Gratt. 280, this doctrine is carried still farther, and it was there held, where husband and wife conveyed the equity of redemption, in land belonging to the wife, to a trus- tee in trust to sell the same for the use and benefit of the grantors, that this was a conversion of the land into personalty, and subjected the trust property to the disposition of the hus- band during the lifetime of the wife; and that, the husband surviving the wife, the whole trust property remain- ing, whether the land unsold or the proceeds thereof, belonged to the hus- band, and that her heir at Jaw had no interest therein. But, on the other hand, where the wife’s real estate is turned into money by the act of the law, without any voli- tion on her part, as by sale of the land on proceedings for a partition, to the extent of her interest it will be treated as land, and not paid over to her hus- band, but by her consent after a privy examination. See Hallenbeck v. Bradt, 2 Paige, Ch. 316; Ellsworth v. Cook, 8 Paige, Ch. 648; Bryan v. Bryan, 1 Dev. Eq. 47; Ex parte Hughs, id. 118; 346 Ex parte Mobley, 2 Rich. Eq. 56; Wardlaw v. Gray, 2 Hill, Ch. (S. C.) 644. But the husband’s interest in his wife’s choses in possession cannot ex- ceed that of his wife, and he can convey no greater interest than she could if sole. Robinson v. Rice, 20 Mo. 229; Green v. Goodall, 1 Coldw. 404; Dead- rick v. Armour, 10 Humph. 588. See also Darnall v. Adams, 13 B. Monr. 273; Swanson v. Swanson, 2 Swan, 446; Arnold v. Hodges, 10 Humph. 389; Needles v. Needles, 7 Ohio St. 44}. And if his wife’s interest in personal property is that of a tenant in common, the husband succeeds to her interest, and becomes a tenant in common in her place. Hopper v. McWhorter, 18 Ala. 229; Chambers v. Perry, 17 Ala. 726; Walker v. Fenner, 28 Ala. 372; Hyde v. Stone, 9 Cow. 230. In general, chattels of the wife in the hands of a third person, but of which she has a right to the immediate possession, vest in the husband, unless such holding is adverse. See Wallace v. Burden, 17 Tex. 467; Caffey v. Kel- ley, Busb. Eq. 48; Brown v. Fitz, 18 N. H. 283; and the cases cited below. See also Pope v. Tucker, 23 Geo. 487. See, however, Gibson v. Land, 27 Ala. 129; Mason v. McNeill, 23 Ala. 201; Hair v. Avery, 28 Ala. 278, and cases dln COVERTURE. there cited; Walker v. Walker, 25 Mo. 376. And, in general, the possession (not being adverse) by a bailee of the prop- erty does not convert the wife’s right into a chose in action, and the property vests inthe husband. Besides the prin- cipal case of Whitaker v. Whitaker, 1 Dev. 310, see also Morrow v. White- sides, 10 B. Monr. 411; Banks »v. Marksberry, 3 Litt. 282, 283; Gran- bery v. Mhoon, 1 Dev. 458; Gwynn v. Hamilton, 29 Ala. 233; Armstrong v. Simontown, 2 Tayl. 266, 5. c. 2 Murph. 351. , So the possession of a chattel by one to whom it was bequeathed for a term of years, is the possession of the ten- ant in remainder; and, on the assent of the executor to the legacy, the marital rights attach to such vested remainder. Pitts v. Curtis, 4 Ala. 350. See also Broome v. King, 10 Ala, 821, and cases cited; Caplinger v. Sullivan (past) ; 2 Story’s Eq. Jur. §§ 1410, 1413, and notes. But see Pitts v. Curtis, criti- cised in Mason v. McNeill, 23 Ala. 215. See also Hair v. Avery, 28 Ala. 273; Johnson v. Wren, 3 Stew. 172. So possession of the personal prop- erty by the guardian of a feme covert, is held to be her possession and suffi- cient to vest the marital rights of the husband. Magee v. Toland, 8 Port. 36;!' Sallee v. Arnold, 32 Mo. 532; 1 In Mason v. McNeill, 23 Ala. 214, and in Hair v. Avery, 28 Ala. 273, 274, the authority of the case of Magee v. Toland was, after a full examination of the author- ities, and'particularly on the authority of Johnson v. Wren, 3 Stew. 172, and Mayfield v. Clifton, 8 Stew. 875, questioned, and the rule declared by Curxton, C. J., to be that “a mere constructive possession, such as the law draws to the title, will not suffice to vest a complete title in the husband where it is in the actual and rightful possession of another ;”’ and “that the husband’s marital right does not attach, so as to defeat the wife’s right by survivorship, to property so situated that neither the husband nor wife has actual possession, and of which they could not obtain posses- sion during the coverture without becoming trespassers. In other words, where actual possession and the right to such possession are in another, and so remain dur- ing the coverture, the property survives to the wife.” See also Walker v. Walker, 25 Mo. 376. The authority of the case is, however, recognized in Walker v. Fenner, 28 Ala. 372, 8373; Gwynn v. Hamilton, 29 Ala. 237. s The decisive question in such a case is, Is the right of the wife a chose in action, or is the property a chose in possession? Where the interest of the third party is a life- WHITAKER ¥. WHITAKER. 347 McDaniel v. Whitman, 16 Ala. 343; Davis v. Rhame, 1 McC. Ch. 191; Daniel v. Daniel, 2 Rich. Eq. 118; Miller v. Blackburn, 14 Ind. 82. See estate, and the wife’s interest is a remainder thereafter, it is clear, by the weight of authority, that her interest does not vest in nor can it be reduced to possession by the husband. See Honner v. Morton, and notes (post). The weight of authority, also, is believed to support the doctrines above stated, that the possession of a bailee, guar- dian, &c., not being adverse, is the possession of the wife, &c. The case of Magee v. Toland is deemed of sufficient importance to be given in full: Error to the Circuit Court of Greene. Detinue for a slave. To the declaration defendant plead non detinet, and the jury found a special verdict as follows : — That on the Ist of January, 1835, the slave was, and for a long time previously had been, the property of Jane Carnathan, then a minor and unmarried, and was in possession of her guardian, George Hays. That on the said 1st of January, 1835, the slave was hired by the guardian to defendant, John T. Magee, for the term of one year, and was delivered to defendant. That on the 11th-of June, 1835, Jane Carna- than intermarried with James Toland, the plaintiff. That on the 26th of August, 1835, said Jane died without issue, leaving the plaintiff, and the following brothers and sisters, to wit, George Carnathan, Margaret Stewart, and Mary Magee, wife of defendant, John T. Magee, surviving. That from the lst of January, 1835, as afore- said, said John T. Magee held possession of the slave, by virtue of the hiring afore- said, and did not assert or claim any other right, title, or interest in the slave, adverse to the right of said Jane and the plaintiff to the slave. That from the 1st of Jan- uary, 1835, until the death of said Jane, on the 26th of August, 1835, neither the said Jane nor the plaintiff, James Toland, ever had the actual possession of the slave. That from the said 1st of Jannary, 1835, until the present time, the slave had been, and remained, and was at the present time in the possession of the defendant. That the defendant had never been appointed administrator of said Jane. That on the Ist of October, 1836, plaintiff demanded the slave of defendant, who refused to deliver him to plaintiff; and that the value of the slave was $500. But because the jury were not advised whether, under the facts, the plaintiff was, by law, entitled to the slave ;. if the Court should be of opinion that the plaintiff was entitled to the slave, then the jury found for the plaintiff; secus, for the defendant. The Court being of opinion, under the facts, that the plaintiff was entitled to the slave, judgment was rendered accordingly ; and to reverse this judgment the writ of error was sued out, and the ren- dition of judgment assigned as error. Erwin, for the plaintiff in error. Jones, contra. GoLpTHWAITE, J. It is obvious that the special verdict presents the question, whether the possession of the slave in controversy by the bailee of the guardian of the wife, at the same time when the marriage was contracted, was such a possession by the wife as to transfer the property to the husband by the mere act of marriage ? The solution of this question involves an inquiry into the rights of property acquired by a husband, which attach to him immediately, and in consequence of the marriage. The plaintiff in error concedes the general rule to be, that the husband, in virtue of. the marriage, acquires an immediate property in the choses in possession of the wife ; but he denies that any other than an actual possession can authorize the application of the admitted rule. This is certainly an ingenious distinction, and deserves well to be examined, as its adoption must have the effect materially to abridge the rights of the husband as generally understood. Personal property is divided into things in possession or in action ; and property in possession is again divided into two sorts, — 848 COVERTURE. also Hopper v. McWhorter, 18 Ala. 191; Bibb v. McKinley, 9 Port. 646. 229 ; Sausey v. Gardner, 1 Hill (S.C.) And the fact that the personal prop- an absolute and a qualified property. The first of these subdivisions is the one which the plaintiff in error denominates as an actual possession, it being where a man has solely and exclusively the right, and also the occupation of any movable chattel, so that it cannot be transferred from him or cease to be his without his own act or default. A qualified, limited, or special property may arise either from the nature of the thing owned, or from the peculiar circumstances and situation of its owner. Many things may be owned which are incapable of actual occupation and absolute dominion at all times, such as wild beasts or birds, but partially reclaimed and not domesticated. But the more important distinction of a qualified, limited, or special property grows out of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. Such is the case of a bailment, or delivery of goods to another, for a particular use or purpose: there is no absolute property in either the bailor or the bailee ; for the bailor has only the right, and not the immediate pos- session ; the bailee has the possession, and only a temporary right. But it is a quali- fied property in them both, and each of them is entitled to an action, in case the goods be damaged or taken away; the bailee, on account of his immediate possession, and the bailor, because the possession of the bailee is immediately his possession also. Such are the views of Blackstone in relation to personal property in possession. His definition of a chose in action, considered as property, is equally satisfactory and pre- cise ; it is where a man has not the occupation, but merely a bare right to occupy the thing in question, the possession whereof, may, however, be recovered by a suit or action at law ; from whence the thing so recoverable is a thing or chose in action. He considers that all property in action depends upon contracts, either express or implied, which he asserts to be the only regular means of acquiring a chose in action. 2 Black. Com. 388-396. It will be remembered that this learned author is treating of the nature of property in things personal, and therefore does not enter into any discussion of the distinctions between rights of action for injuries done. He is only speaking of choses in action as property ; and in this view no objection can be taken to the definition given, as we cannot conceive that one can have a property in a wrong done or injury suffered. In its more enlarged sense, a chose in actions, may be consid- ered as any right to damages, whether arising from the commission of a tort, the omis- sion of a duty, or the breach of a contract. And in this sense it is considered by most other elementary writers. Bro. title Chose in Action, Lilly’s Abr. 264. It will be unnecessary to ascertain with exactness and precision the nature of a chose in action, or a right of action, if the slave in dispute is within the definition of property in possession, as given by the most approved elementary author, and fully supported by the authorities which he cites. It appears that the slave was owned by the wife previous to and at the time of the marriage; and was in the possession of the defendant as a bailee for hire, holding under the guardian of the wife. The authority already referred to ex- pressly states that the possession of the bailee is also that of the bailor; and it only remains to show that the possession of the guardian is also the possession of the ward. Independent of the manifest reason that such a rule should obtain, we find no direct decision on the precise point, in relation to personal property ; but the authorities are numerous and concurrent that the possession of lands by the guardian in socage is the possession of his ward, and that no entry is re- quired to be made by him. Coke on Litt. 15a; Newman v. Newman, 3 Wils. 516; Doe v. Keene, 7 T. R. 886. No reason is conceived by the Court why the possession WHITAKER v. WHITAKER. 849 erty is held by a guardian, in common interest of each to a chose in action, for several wards, does not reduce the but as to each it is regarded as prop- of the guardian should not be held as the possession of the ward, in relation to all personal chattels capable of possession, as it is clearly a title derived under the ward, and held solely and exclusively for his benefit. The guardian has an interest in the thing possessed, without which he would not be able to sustain an action ; but such interest is consistent with, and ancillary to, the property of the ward; it never has been supposed otherwise. : As the possession of the defendant below was the possession of the wife at the time when the marriage was contracted, it results that the property in the slave in question was transferred to the husband at the instant of marriage ; and it was then as much in his possession in point of law as it could afterwards have been by an actual manucaption. It is, however, contended that whatever may be the rule of the common law on this subject, this case must be governed by a previous decision of this Court, which is said to decide the identical question here presented. The case referred to is Johnson v. Wren, 8 Stew. 172. Without undertaking to pronounce what weight that case ought to have on one presenting a similar state of facts, we content our- selves with observing, that there the question of possession was left to the jury on the evidence, and was not before this Court on any exception to the charge of the Circuit Court. It is true that the Court seemed to consider the estate in the slaves as one in action and not in possession; but, as the point did not arise in this Court, we do not feel inclined to consider it as closing the investigation in this case. Another distinction between that and this case is to be found in the fact, that there the wife and here the husband is the survivor. Neither does this case resemble, in any respect, that of Mayfield v. Clifton, 8 Stew. 375, which was decided on the conflicting claims of a husband and the children of his deceased wife to her un- divided, distributive share of the estate of her former husband. We will now ascertain how far the principle we have recognized as applicable to this case has the sanction of adjudicated cases in this country in its support, remark- ing that there is a total absence of cases on this subject in the English reports. In the case of The Ordinary ». Geiger & Wife, reported from the MS. reports of Judge Brevard, in 2 Nott & McCord, 151, the facts were as follows: The mother of Geiger’s wife, while sole, made and executed a deed of gift of certain negroes to her four children jointly. Afterwards, one of these children married Geiger, the intes- tate. On the marriage, one of the negroes given as aforesaid was sent with her on her going to live apart from her mother, and remained with her ever since. No reg- ular partition was ever made of the property between the donees. After the death of Geiger, his widow intermarried with the other defendant, and they jointly admin- istered on his estate, and in the inventory returned to the ordinary made no mention of the negroes given as aforesaid. The question was whether this omission was a breach of the condition of the administration bond. The Court were all clear that a right of possession vested instantly on the execution of the deed of gift, and that the female defendant was entitled, as a joint lineal, to the property given; and there- fore that, on her intermarriage with Geiger, the property and right of possession which she had, vested in him and became a part of his personal estate, and ought to have been returned as such in the inventory. In Davis v. Rhame, 1 McCord, Ch. 195, the slaves had been allotted by partition to Miss Davis (afterwards Mrs. Clark). She was then a minor, and hereslaves went into the possession of Rhame, her guardian, who dying, his executor took possession of them. After the death of Mrs. Clark, her husband obtained possession of them. 350 COVERTURE. erty in possession. Chambers v. Perry, But see Mason v. McNeill, 23 Ala. 218. 17 Ala. 726 (citing Pettijohn v. Beasly, See also Ordinary v. Geiger, 1 Brev. 4 Dev. 512; 2 Nott & McCord, 151); 484. Hopper v. McWhorter, 18 Ala. 229. But where the guardian has the legal The Court decided that the possession of the guardian was the possession of the ward, and consequently her husband’s. The same principle was recognized and confirmed in Saussey v. Gardiner, 1 Hill, 191. In North Carolina the same principle has been acted on in the case of Armstrong v. Simonton’s Adm’r, 2 Taylor, 266; s. c. 2 Murphy, 851. The slave sued for was owned by the plaintiff, whose daughter intermarried with Simonton, and to whom, residing in Georgia, she loaned or gave a slave. After the loan or gift to Simonton, the plaintiff intermarried with Abel Armstrong, who died before Simonton, and before this suit was commenced. The judge who tried the cause instructed the jury, that if the transaction was a loan determinable at the will of the lender, and there was no adverse possession set up, the property vested absolutely in Abel Armstrong, on his intermarriage with the plaintiff, and that his executors could alone recover it. This opinion was pronounced correct by the Supreme Court. In Kentucky, in Bank’s Adm’rs v. Marksberry, 8 Litt. 275, the facts were as follows: In 1773 Samuel Marksberry executed a deed, by which he gave a female slave to his daughter Rachel, but, by the terms of the deed, was to retain possession during his life. Rachel intermarried with William Banks, in 1790; and, after having several children by him, of whom the plaintiff was one, died in 1798. Her father, Samuel Marksberry, the donor, died some years afterwards. The plaintiff, in 1821, took administration on the estate of Rachel Banks, his mother, and instituted the suit to recover the slaves descended from the one given to her. It was ruled that the slaves were not choses in action ; and that the interest of Rachel vested in her husband, although she never had the possession, and died before she was entitled to it by the terms of the gift. The language used by the Court is peculiarly appropriate, and may be quoted to illustrate this case: “The slaves were in the possession of the donor, but his posses- sion was consistent with the title of Mrs. Banks, and not adverse. There is no proof that he ever did, prior to her marriage, set up any claim to the slaves, incompatible with the deed of the gift ; and under that he had only a right to the use of them for life, while the absolute property in fee belonged to Mrs. Banks. She had, in fact, the general, and he only a special, property in the slaves; and it is a known rule of law, that the general property of a chattel draws to it the possession. She was not, indeed, in the actual enjoyment of the slaves; but surely every chattel of which the owner is not in the actual enjoyment, cannot be denominated a chose in action. Nor is such actual enjoyment of a chattel which accrues to the wife before marriage necessary to vest her interest in the husband. If a chattel be found and not converted to the use of the finder, if it be hired or loaned, or otherwise bailed, it does not thereby become a chose in action; and if it belongs to a woman who marries, her right immediately vests in the husband, at least so far that, if she dies, it will survive him.” Similar decisions have obtained in Virginia, from the earliest establishment of Courts. See Dade v. Alexander, 1 Wash. 89, cited with other cases with approbation in Wallace v. Taliaferro, 2 Call, 470. See also, in connection with the subject matter, Doe v. Polgrean, 1 Hen. Black. 585 ; Coke, Litt. 351 a; 8'T. R. 681 ; Crozier v. Bryant, 4 Bibb, 174; Pinkard v. Smith, Littell’s Selected Cases, 831. Such a concurrence of authority, in so many of the States, holding the peculiar description of property which is oftener thg cause of a qualified or special estate than any other description of per- sonal chattels, requires the strongest reasons to be shown fora departure from the general rule. None such have been, or in our opinion can be, shown. The judgment of the Circuit Court is affirmed, BUCKLEY v. COLLIER. possession, and no division can be made until a future event, as where, in a bequest of several slaves to minor children, to be equally divided between them, the testator expressed his ‘‘ will and desire that there should be a guar- dian appointed to take charge of the property until the four children became of age,” the marital rights do not at- tach, and a delivery of the property to the husband is not such a reduction to possession during the life of the wife as will vest the legal title in him, if the wile die before the happening of the event. Moss v. Ashbrook, 20 Ark. 128; Price v. Sessions, 3 How. (U.S.) 624 ; Paige v, Sessions, 4 How. (U.S.) 122. See also Bibb v. McKinley, 9 Port. 636.; Swanson v. Swanson, 2 Swan, 446. So the possession of the guardian is the possession of the ward, even though the property in the guardian's hands is money. Miller v. Blackburn, 14 Ind. 62; Daniel v. Daniel, 2 Rich. Eq. 115; McDaniel v. Whitman, 16 Ala. 343; Ryan v. Bull, 3 Strobh. Eq. 86. But see Mason v. McNeill, 23 Ala. 217, and cases cited, and notes to Hayward v. Hayward (post). So money in the hands of an author- ized agent, procured by the sale of her 851 land, belongs to the husband. Crosby v. Otis, 32 Me. 256. But whether a balance at her banker’s comes within the same rule ig not so clear, such balance being, in general, a debt, and not a special de- posit to be specifically returned. Up- on principle, such balance would seem to be a chose in action, and subject to the rules governing that kind of prop- erty. See Carr v. Carr, 1 Mer. 543, n. ; Hill v. Foley, 1 Phill. 404; Pott ». Clegg, 11 Jur. 289; Fleet v. Perrins, L. R.3 Q. B. 586, s. c. 4 id. 500; Athey v. Knotts, 6 B. Monr. 24; Smilie’s Estate, 22 Penn. St. 130; Schouler’s Dom. Rel. 113; 1 Bish. on Mar. Wom. §§ 68, 72. See also Short v. Moore, 10 Vt. 451. If the possession of the personal property is adverse to the right of the wife, the better opinion undoubtedly is that her right is only a chose in action, which must be reduced to possession before it is subject to the marital rights. See 1 Bish. on Mar. Wom. §§ 70, 71, and cases cited, where the subject is well considered. See also Browne v. King, 10 Ala. 819; Thrasher v. Ingram, 22 Ala. 668. See Caplinger v. Sullivan (post), and notes. Bucxk.Ley v. COoLuiER. (1 Salk. 114; s.c. 4 Mod. 156; Carth. 251; 3 Salk. 63. Court of King’s Bench, Mich. Term, 1692.) Wife's Earnings — Action therefor, &c. — Baron must bring action alone for work done by the wife during the coverture, unless there be an express promise to the wife. Wilson, 414, 415, &c. Mod. Cas., &c., 341; D’Anv. 1 Part. 712, pl. 7; 2 A promise to the wife is good ab initio if the husband agree to it, and his " bringing the action (in which she may join) is evidence of his agreement. Cro. Jac. 77, 205; 2 Sid. 128; Stiles, 9; Stra. 231. Baron and feme declared that the defendant, being indebted to them for work done by the wife in making him a peruke, he 852 COVERTURE. promised to pay, and had not paid ad dam. ipsorum, &c. To this there was a frivolous plea, and upon that a demurrer. The plaintiff cited 8 Cro. 205; 3 Cro. 61, 96; 1 Cro. 488. But relied principally upon Burchet’s case. Per Curiam. Burchet’s case differs: There was an express promise to the wife, and to that the husband assented by bring- ing an action thereupon; but here is no express promise laid to the wife; here is nothing but the promise in law, and that must be to the husband, who must have the fruits of his wife’s labor, for which he must bring a quantum meruit. Also the advantage of the wife’s work shall not survive to the wife, but goes to the executors of the husband; for if the wife dies, her debts fall upon the husband;! and therefore so shall the profits of her trade to the husband’s executors. But this must be intended of ' work done during the coverture, and not after. ; Judgment pro defendant. See 1 Chitty’s Pl. * 29, 30, explained J.), where the distinction above drawn and qualified in 1 Bish. Mar. Wom. between an express promise and one §§ 102 et seg., 212; also, Peterson v. implied by law is approved. This dis- Mulford, 36 N. J. lL. 486; Prescott ». tinction seems well founded upon Brown, 23 Me. 305; Gay v. Estate of principle. See also notes to the next Rogers, 18 Vt. 342; Avogadro v. Bull, case, Skillman v. Skillman. 4 E. D. Smith, 386 (per Wooprurr, SKILLMAN v. SKILLMAN. (15 N. J. Eq. 478, affirming, 5. c. 13 N. J. Eq. 403. Court of Errors and Appeals of New Jersey, March Term, 1863.) The Earnings of a Feme Covert belong to her Husband.— When a married woman, with the consent of her husband, contracted for the purchase of a lot of land, which was afterwards conveyed to the husband, who paid the pur- chase-money and erected a house on the lot, part of the cost of which was paid by the husband, and the balance was secured by his bond and mortgage on the premises, which was afterwards paid by the wife by money derived from her own earning.— Held, that these circumstances failed to establish any resulting trust in the wife, or show any interest in, the property in her, para- mount to the title of the husband. By the common-law, the earnings of the wife by the product of -her skill and 1 See Heard v. Stamford, in note to Whitaker v. Whitaker, 6 John. 112. SKILLMAN v. SKILLMAN, 353 ’ labor belong to the husband. They do nqt become the property of the wife, even in equity, without a clear, express, irrevocable gift, or some distinct affirmative act of the husband divesting himself of them, or setting them apart for her separate use. An injunction, which had been allowed at the instance of the wife, to prevent a judgment creditor of the husband from satisfying his judgment out of the land, held to have been properly dissolved. THIs was an appeal from the decree of the Chancellor in the case reported in 2 Beasley, p. 408. . Leupp, for appellant. Speer, for respondent. The opinion of the Court was delivered by Hares, J. The complainant, by her bill, claims to have an equitable interest in a certain house and lot of land, the legal title to which was in her husband at the time of his death; and she seeks to have it protected against a judgment obtained by the defendant, John G. Skillman, against her husband, in his lifetime, on a bond and warrant of attorney to confess judgment, upon the ground that the judgment was without consideration and fraudulent and void. The equity of the bill rests in allega- tion of a right and interest of the complainant in the house and lot, and in the fraudulent intent of the defendant, John G. Skill- man, in procuring the judgment. The charge of fraud is fully denied by the answer in response to the bill; so that, if the com- plainant has any interest in the property, and was in a situation to question the validity of the judgment, on this explicit denial of the fraud charged, the injunction might have been properly dissolved. But the case made does not show such an interest in the property as would entitle her to protection against the judg- ment, even if it were fraudulent. Her claim is not based on a right of dower; and, if it had been, it would have needed no pro- tection in this form, as the judgment against her husband could not affect her dower. But she claims by a right in equity paramount to the legal title of her husband. She insists that, having negotiated for the purchase of a lot of ground and for the building of the house, and paid a considerable portion of the purchase-money, a trust results to her. On examining the allegations of the bill, it appears that she, with the knowledge of her husband, negotiated for the purchase of the lot, and that it was conveyed to him, and 23 354 COVERTURE. he paid the purchase-money; that afterwards a contract was made for the erection of a small house on the lot, at the cost of six hundred and seventy-five dollars, of which sum five hundred dollars were secured by his bond and his and her mortgage on the property, and the residue, one hundred and seventy-five dollars, paid to the contractor. It is not alleged to have been paid by her, and the presumption is that it was paid by her husband. Thus far the whole consideration-money on the pur- chase of the lot and the cost of the building were paid and secured by the husband. After this, and until May, 1854, she paid the yearly interest on the bond and mortgage, and one hundred dollars of the principal. She afterwards contributed to the monthly payments on two shares of Mechanics’ Build- ‘ing and Loan Association purchased by him, until he became entitled to a loan of four hundred dollars, which was taken and secured by a mortgage on the house and lot, and with that money the residue of the sum secured by the original mortgage was paid. She afterwards contributed to the monthly payments due by way of interest on the loan, until the value of the two shares were so enhanced as to be nearly sufficient to pay off the last mortgage; all of which payments so made by her were almost entirely from her own earnings, her husband contributing but little towards it. Admitting the entire truth of all these allegations, they fail to establish a resulting trust, or to show any interest in the property paramount to the title of her husband. By the common-law, the earnings of the wife, the product of her skill and labor, belong to the husband. They do not become the property of the wife, even in equity, without a clear, express, irrevocable gift, or some distinct affirmative act of the husband divesting himself of them, or setting them apart for her separate use. There is no alle- gation of any such act here. She was permitted to apply the product of her labor, not to her own use, but to the payment of her husband’s debts. Her object was truly praiseworthy, and her efforts provident. She meant to secure a home for herself and her family ; and it may be regretted that they had not taken proper measures to accomplish that purpose. As the business was transacted, the title to the house and lot was in her husband, and the purchase-money and the cost of building paid by him, and out of money belonging to him. SKILLMAN v, SKILLMAN. 855 The legal and equitable title vested in him. There was noth- ing done or suffered to divest him of such title, even as between him and his wife, much less as between him and his creditors. The bill was properly dismissed, and the decree of the Chan- cellor must be affirmed, but, under the peculiar circumstances of the case, without costs. The decree of the Chancellor was affirmed by the following vote :— For afirmance, — Judges Brown, Comps, Corneison, ELMER, Haines, KENNEDY, OGDEN, WHELPLEY— 11. For reversal, — None. By the common law it has long been extremely well settled that the earnings of the wife during coverture, and the proceeds thereof, belong absolutely to the husband. Elliott v. Bently, 17 Wis. 591; Stinson v. White, 20 Wis. 562; Connors v. Connors, 4 Wis. 112; Farrell v. Patterson, 43 Ill. 52; Schwartz v. Saunders, 46 Ill. 18; Hazelbaker v. Goodfellow, 64 Ill. 238; Hinman tv. Parkis, 33 Conn. 188; Mor- gan v. Bolles, 36 Conn. 175; Raybold v. Raybold, 20 Penn. St. 308; Todd v. Todd, 15 Ala. 743; McKavlin v. Bress- lin, 8 Gray, 177; Gould v. Carlton, 55 Me. 511; Clinton Station Manuf’g Co. v. Hummell, 25N. J. Eq. 47; Persons v. Persons, 25 N. J. Eq. 259; Carpen- ter v. Carpenter, 25 N. J. Eq. 197; Cramer v. Reford, 17 N. J. Eq. 367; Smith v. Vreeland, 16 N. J. Eq. 198; Peterson v. Mulford, 36 N. J. L. 486; Avogadro v. Bull, 4 E. D. Smith, 384; Baxter v. Prickett, 27 Ind. 490; Basham v. Chamberlain, 7 B. Monr. 445; Bear v. Hays, 36 Ill. 280; Dun- can v. Roselle, 15 Iowa, 501; Laing v. Cunningham, 17 lowa, 510; Hoyt v. White, 46 N. H. 45; Armstrong v. Armstrong, 32 Miss. 280; Cropsey v. McKinney, 30 Barb. 47; Schouler’s Dom. Rel. 114, 242, e¢ seg.; 1 Bish. Mar. Wom. §§ 212 et seq., 732 et seq. And the rule laid down in the princi- pal case of Skillman v. Skillman, that ‘they do not become the property of Fort, Swatn, VREDENBURGH, the wife, even in equity, without a clear, express, irrevocable gift, or some dis- tinct affirmative act of the husband, divesting himself of them or setting them apart for her separate use,” seems in accordance with correct principles. See also Hinman v. Parkis, 33 Conn. 188; McLemore v. Pinkston, 31 Ala. 269; Ryder v. Hulse, 24 N. Y. 372; Peterson v. Mulford, 36 N. J. L. 487. That the above is the same rule as in the case of the gift of chattels by the husband to the wife, see Walter v. Hodge, 2 Swanst. 106; McLean v. Longlands, 5 Ves. 79; Mews v. Mews, 15 Beav. 529; 21 E.L. & Eg. 556; Ryder v. Hulse, 24 N. Y. 379. See also cases cited in notes to Livingston v. Livingston and Shepard v. Shepard (ante, pp. 280, 293); McCubbin v. Pat- terson, 16 Md. 179. In Starrett v. Wynn, 17 S. & R. 130, however, it is held that, if a hus- band deserts his wife and ceases to per- form his marital duties, the acquisitions of property made by the wite during such desertion are her separate estate, and she may dispose of them by will or otherwise. Rocers, J.: ‘‘It is granted that a husband may, by ex- press or implied agreements, renounce his marital rights, and vest the property acquired by the wife as her separate property, and this where the husband is in the strict performance of all his duties,” citing Slanning ». Style, 3 P. 356 Was. 338; Calmady v. Calmady, cited in 3 P. Wms. 339 ; Megrath v. Robert- son’s Adm’rs, 1 Desaus. 445. ‘* But it is said that here there is neither an agreement express or implied. To which it may be answered, that it can- not be supposed that the husband in- tends his wife to starve; and, as he has voluntarily withdrawn his support, it is a fair presumption that he has con- sented to her using her own exertions to maintain herself. But whether this be a strained presumption, it is imma- terial to inquire, as the Court are 6f opinion that the desertion of the hus- band and a cessation of his wonted duties vest a separate property in the wife in the acquisitions made during the time of the desertion,” citing Cecil v. Juxon, 1 Atk. 278. See also Rees v. Waters, 9 Watts, 94; Spier’s Ap- peal, 26 Penn. St. 233; Krupp v. Scholl, 10 Penn. St. 195; Bell v. Bell, 86 Ala. 478, s. c. 37 Ala. 536; Bous- laugh v. Bouslaugh, 17 S. & R. 363; Cain v. Bunkley, 35 Miss. 146; 2 Kent's Com. 164. See, however, Rus- sell v. Brooks, 7 Pick. 65; McKavlin v. Bresslin, 8 Gray, 177; Stimson »v. White, 20 Wis. 562. The case of Starrett v. Wynn, how- ever consonant with reason and justice, seems inconsistent with the rule above stated as to gifts by the husband to the wife; and, unless it is to be considered as an exception to that rule, as perhaps COVERTURE. it may, it would seem to be opposed to the weight of authority. However, where a separation for any cause has taken place, and the wife for any considerable time has been allowed to deal for herself and receive pay for her services, without objection, persons would have a right to consider the hus- band as assenting to such a course of dealing by her; and, if the husband has not previously claimed her earnings, the wife may receive them herself, and, after they have been paid to her, the husband cannot recover them of the person from whom they were due. Norcross v. Rodgers, 30 Vt. 588. See also Thrasher v. Tuttle, 22 Me. 335. If a note or other obligation is, with the husband’s assent, taken in the name of the wife, for her earnings, and this chose in action is allowed by the hus- band to remain unreduced to possession during his lifetime, on his death his wife surviving him will be entitled to it by survivorship. This was held in Boozer v. Addison, 2 Rich. Eq. 273, and seems in accordance with the law governing post-nuptial choses in action. See notes to Schuyler v. Hoyle (post); 1 Bish. Mar. Wom. §§ 108 e¢ seg., 214. But whether she would take by sur- vivorship as against the creditors of the husband, as held in Boozer v. Addison (supra), is questionable, see 1 Bish. Mar. Wom. §§ 214, 215, and cases cited. SCHUYLER v. HOYLE. 3857 Scuuyier v. Hoyte. (5 Johns. Ch. 196. Court of Chancery of New York, April 27, 1821.) What amounts to a Reduction to Possession of the Wife's Distributive Share so as to bar her Survivorship. Wife to be made a Party to the Suit therefor. —If a husband appoints an attorney to recover a debt, legacy, &c., due to his wife, and the attorney receives the money ; or if the husband mortgages his wife’s interest, or assigns it absolutely, for a valuable consideration ; or if he recovers it by a suit at law in his own name, or releases the debt, —the right of sur- vivorship in the wife, in these cases, ceases. In a suit by the husband for the wife’s legacy or distributive share, the wife must be made a party. Where the husband and wife and others, heirs of F. deceased, intestate, in England, made a joint power of attorney to V., authorizing him to take out letters of administration there on the estate of F., to collect the property, &c., and pay over to the parties their distributive shares, respectively, &c.; and after V. had taken out administration, and obtained possession of the property, but before he had paid over the entire share, the husband died: Held, that the wife was entitled, in her own right, as survivor, to that portion of her distributive share which had not been actually paid over to her husband. TueE bill stated that Henry Ten Eyck Schuyler died seised of a large real and personal estate, intestate, on the 25th of Septem- ber, 1812, leaving Sally 8., a widow, mother of the plaintiffs, and the plaintiffs and J. B.S., his only children; and that J. B.S. died an infant, on the 16th of January, 1817. That, on the death of the intestate, the widow, as natural guardian to the plaintiffs, took possession of the real estate, and from the death of the intestate until her marriage with the defendant, Henry Hoyle, received the rents and profits. That she possessed herself of the personal estate, and sold a large part thereof; that, since her marriage with H. on the 30th of January, 1817, the defendant H., her husband, had received the rents and profits of the real estate, and possessed himself of the personal estate, which remained in her hands, to the amount of $50,000. That the defendants had pos- sessed themselves of all the deeds and muniments of the estate, and had refused to account, &c. Prayer, that the defendants be decreed to account with the plaintiffs touching the real and personal estate of the intestate, and for general relief, &c. The material facts appearing in the answer, and from the proofs taken before the master, in regard to the question argued and decided, are, that Mrs. 8., widow of the intestate, now Mrs. Hoyle, was 358 COVERTURE. one of the heirs at law of Gerrit Fisher, who died intestate, in England, prior to June, 1811, leaving a large personal estate, of which she, as one of the heirs and next of kin, was entitled to one twelfth, as her distributive share. She succeeded to that share while she was the wife of H. T. E. Schuyler; and on the 19th of June, 1811, the legal representatives of Gerrit F. entered into an agreement, by deed, with N. J. Visscher, to which instru- ment S. was a party, and which also purported to be made by his wife as a party, but was not in fact executed by her. This agreement recited that a letter of attorney had been executed by the said ‘parties to that deed (being the legal representatives of G. F.), and, of course, by “ Henry Ten Eyck Schuyler and S., his wife,” to N. J. V., authorizing him to proceed to London, and there sue out letters of administration, and collect the property of G. F., deceased, and pay his debts; and, after deducting reason- able expenses, and a reasonable sum stipulated for his own com- pensation, to pay over ‘to the said parties of the second part, respectively,”— which, of course, included S. and his wife, — their respective distributive shares. The agreement then provided that N. J. V. should proceed forthwith to England, and there, in the mode he should deem best, should execute the power ; and, after paying the debts, and deducting expenses and a reasonable sum to cover allowances for his services, to remit the residue of the property of G. F., the intestate, to Thomas Eddy of New York, to be by him deposited in the Bank of New York in the name of N. J. V., and to be by him distributed as before men- tioned. The rest of the agreement related to the compensation to be allowed to N. J. V. Under this authority, N. J. V. went to England, where he arrived in August, 1811, and took out letters of administration on the estate of G. F., in England; and, on the 12th of October, 1811, he took out letters of administra- tion on the intestate’s estate in Ireland, and collected and con- verted most of the assets into American stocks and British goods, within one year after he arrived in England. He remitted the stocks to Barent Bleecker of Albany, and the goods to Peter Remsen of New York, who sold the goods, and paid the proceeds to N. J. V., with whom, in character of administrator, P. R. ac- counted, and to whom, as his principal, he paid the proceeds. H. T. E. Schuyler died the 25th of September, 1812, subsequent to which time P. R. paid the proceeds of the goods, amounting SCHUYLER v. HOYLE. 859 to $400,000, to N. J. V., who afterwards paid the amount over to B. Bleecker, to be distributed among the heirs of G. F. The stocks remitted by N.J..V.to Bleecker, came into his hands before the death of S. The amount received by B. prior to the death of S. was $128,078.58, and the amount received by him after the death of S., was about $400,000. The amount of the distributive share of Mrs. S. was $48,342.98, including $1,950, being the value of certain lands belonging to the estate, not sold before the death of S. Of this distributive share, B. paid to S., in his lifetime, $11,815.29, and the residue to his widow (now Mrs. H.) after his death. So that S. received, during his life, above $1,500 more than his wife’s distributive share of that portion of the estate of G. F. which came to the hands of B. in the lifetime of S. In the receipt of the moneys, and in the trans- action of the business, B. acted under letters of attorney, dated January 6, 1812, from the legal representatives of G. F., and which was executed by S. “ in behalf of his wife, Sarah Ten Eyck Schuyler.” This power authorized B., as their attorney, to demand, sue for, collect, and receive all debts and moneys due G. F. at the time of his death, and to take security in their names, if requisite, to liquidate debts and demands, and to pay debts due from the estate of G. F., or from them as heirs, and to sue out letters of administration on the estate of G. F., if necessary, and to sell at auction such parts of the estate as he should deem best, and, after deducting expenses and allowances, to distribute the estate as follows: ‘amongst us, our heirs, execu- tors, administrators, or assigns, according to our respective rights in and to the real and personal estate of G. F.” Buel, for the plaintiffs, contended, — 1. That, upon the death of Gerrit Fisher, the distributive share of the wife of H. T. E. Schuyler, in his estate, became absolutely vested in her husband. Such distributive share becomes vested from the time of the death of the intestate (except in the case of a posthumous child); so that if the person entitled to it die within a year after the intes- tate, and before the estate is actually divided, the share goes to the next of kin of the deceased. Toller’s Law of Executors, 386; 1 Madd. Ch. 517; 3 Bac. Abr. 75, tit. Executors, &c. 1. In Browne v. Shore & Wife, 1 Shower, 25, J. S. died intestate, and A. and B., who were his next of kin, died within a year after, and before distribution of the intestate’s estate. Hott, C. J., and 860 COVERTURE. the rest of the Court, held, that A. had a vested interest, which went to his executors. In Cary v. Taylor, 2 Vern. 302, A. mar- ried B., the daughter of J. 8., who died intestate. B. died before the distribution of her father’s estate. A. also died before dis- tribution or administration. The plaintiff was administrator to A., the husband, and the defendant was the administrator of B., the wife ; and the question was, which of them had the right to the share of J. S.’s estate remaining undistributed. It was ad- mitted on all hands that the share to which B. was entitled was a vested interest, before any distribution was made; but the doubt was whether it was so vested, as a legacy assented to, that it would vest in the husband, without his taking administra- tion to his wife. The question does not appear to have been decided in that case; but the doubt raised was not well founded. Comyn (2 Comyn’s Dig. tit. Baron & Feme, E. 3; 2 Roll. 134) says: “If a legacy be given to a feme covert, to be paid in twelve months after the testator’s death, and the wife dies within the twelve months, the interest goes to the husband ; for it was vested in him, and he might release it within the twelve months.” Robertson v. Taylor, 2 Bro. C. C. 589; 2 P. Wms. 49, n. d.; Grice v. Grice, Edwards v. Freeman, 2°-P. Wms. 441. The doubt in Cary v. Taylor seems to have arisen from the circumstance that the husband had not administered on the wife’s estate. But it is now well settled that this circumstance is of no moment; for the wife’s choses in action go to the representatives of the husband, although he has not administered on her estate, and not to the wife’s next of kin. Whitaker 7. Whitaker, 6 Johns. 112. It follows, then, that a distributive share is a vested interest from the time of the intestate’s death; and it must vest in the husband, not in the wife; for a married woman cannot, during coverture, acquire any property, unless given specially to her separate use and through the medium of trustees. All her acquisitions of personal property during coverture belong to her_-husband. For this reason, indebitatus assumpsit for work done by the wife will not lie by the husband and wife, but the husband must sue alone. 2 Comyn’s Dig. tit. Baron & Feme, W.; 1 Salk. 114; 1 Chitty’s Pl. 19. A note given to the wife during coverture is part of the husband’s assets. Hodges ». Beverly, Bunb. 188. So, if a bond is given to the wife, the hus- band must sue alone for it. 2 Atk. 208; 2 Mod. 217; 4 T. R. SCHUYLER v. HOYLE. 861 616; 3 Lev. 403. Where a legacy was given. to a feme covert, who lived separate from her husband, and the executor paid it to the wife, and took her receipt, yet, on a bill brought by the hus- band, the executor was decreed to pay it over again, with inter- est. 1 Bac. Abr. tit. Baron & Feme, D.; 1 Vern. 261. The cases which seem to support a contraty doctrine, or to recognize the right of survivorship in the wife, as to her choses in action, are those in which the wife was entitled to them before marriage, and they had not vested in the husband, or wheré the husband had elected to sanction the wife’s right of survivorship, by joining with her in an action, &c. ; or where bonds, notes, &c., have been taken to the husband and wife jointly, and the husband has done no act to alter the property, and thus impliedly assented to her right of survivorship. Comyn’s Dig. tit. Baron & Feme, F. 1, F. 2; 1 Vern. 396; 1 Fonbl. Eq. B. 1, ¢. 4, § 24.0. (y). Both Comyn and Bacon, as well as others, make the distinction be- tween property or choses in action to which the wife was entitled before marriage, and such as accrue to her during coverture ; and they all agree that the husband has an absolute property in all the acquisitions of the wife during coverture, whether by gift, devise, or by her labor. Comyn’s Dig. Baron & Feme, E. 8; Bac. Abr. Baron & Feme, D. C. 3; 2 Roll. 184; Comyn, 725. This doctrine is also fully recognized by Judge Reeve in his work on “ Domestic Relations,” p. 60, 63. He says: “ Personal property acquired after marriage by her means belongs abso- lutely to the husband ; so that if a legacy should be given to the wife during coverture, and the husband should die before it is paid or due, it would not belong to the wife, but to the husband’s executor.” He asserts the same thing in regard to the wife’s distributive share; and Toller says that a distributive share is just like a residuary legacy. 2. But if it was necessary that S. should have altered the prop- erty in order to vest the title in him, enough has been done by him for that purpose. He, together with the others, executed a power to V. to collect the property ; by virtue of which V. took out ad- ministration in England, and collected all the property, before the death of S. So that Bleecker was the attorney in fact of S. and the others in this country, and acted under the power. Now, it is well settled that if a husband gives a power of attorney to recover his wife’s debt, legacy, or other chose in action, and the 862 COVERTURE. attorney does receive it, although it does not actually come to the hands of the husband, yet it is absolutely and indefeasibly his property. 1 Bac. Abr. 480, tit. Baron & Feme, C. 3; Rol. Abr. 342; Moore, 452; Golds. 160; Reeve’s Dom. Relat. 4; Comyn’s Dig. tit. Baron & Feme, E. 3. A voluntary assignment by the husband of his wife’s distributive share makes it the property of the husband, though the assignment, as between him and the assignee, is void. 1 P. Wms. 380. So, an order of the Court of Chancery to pay the wife’s legacy to the husband vests it in the husband, though he dies before payment, and defeats the wife’s right of survivorship. 3 Bro. C.C. 362. So, a judgment recovered at law by the husband, has the same effect. 1 Fonbl. Eq. B. 1, ¢.4, § 24. Though it is otherwise if the husband is joined. The principle on which these cases are founded is, that, where the husband has done any act in relation to his wife’s choses in action manifesting his intention to appro- priate them to himself, the law deems it such a reduction into his possession as vests him with the property. J. Paine, contra, contended, — 1. That the husband has only a qualified interest in his wife’s choses in action; and unless he reduces them into possession, by action or otherwise, during his life, they belong to the wife, in case she survives him. Toller’s L. of Ex. 219, B. 2, c. 5,$ 2; 3 Vesey, 469 ; Co. Litt. 3518; 9 Vesey, 87. It is true, that, if the husband survives the wife, he alone is entitled to her personal property or choses in action. 6 Johns. 112; IN.R.L. 814, § 17; Co. Litt. 351 6. 2. What acts, then, were done by S., in his lifetime, to reduce the distributive share of his wife in the estate of G. F. to his possession ? The power of attorney to V. was in the name of S. and his wife and the other persons ; and V. was to pay over her share, after deduct- ing charges, &c., to S. and his wife. This was the only authority under which V. acted. Though the agreement was not, in fact, executed by the wife of S., yet she was made a party ; and it recites the power of attorney and that the said parties executed the power. It must be taken as fact, therefore, that S. and his wife executed the power, and V. was to pay over her distributive share to herself -and husband jointly: Admitting, then, the rule of law to be (Toller, 221, 222), that if the husband gives a letter of attorney, to receive a debt or legacy due to his wife, and the attorney receives it, but the husband dies before it is paid over to him, it will go to his ex- SCHUYLER v. HOYLE. 863 ecutors, it does not follow that it will be considered as reduced to the possession-of the husband, where the power, as in this case, is given by the husband and wife jointly, and the attorney is to pay over the money to them jointly. The husband may sue alone for the debt or legacy due to his wife; but, if he joins the wife and recovers judgment, it will survive to her. 1 Fonbl. Eq. 3147”; Toller’s L. E. 220; 4 Hen. & Munf. (Va). 452. The reason of the distinction is that, by bringing the action in his own name, he signifies his disagreement to the wife’s interest, and his intent that it shall not survive to her; but, where the action and re- covery is in their joint names, it shows that his intention is not to alter the property. Wildman v. Wildman, 9 Vesey, 176. In Baker v. Hall, 12 Vesey, 496, where the husband entered into possession of the real and personal estate of the testator, as ex- ecutor and trustee under the will, and disposed of part, the Master of the Rolls held that the husband must be deemed to have taken possession as executor and trustee only; and that, therefore, his wife’s share of the residue of the testator’s estate could not be considered as so reduced to the possession of the husband as to prevent its surviving to the wife upon his decease, and, of course, going, upon her death, to her personal representa- tives. So, in the case of Wall v. Tomlinson, 16 Vesey, 413, the Master of the Rolls held that stock belonging to the wife was not reduced to the possession of the husband by a transfer to him merely as a trustee, for the transfer was made diverso intuitu. If, then, the principles deduced from these authorities be correct, it might be safely admitted that V. had, by virtue of the power from S. and his wife and the others, obtained full possession of all the property in the lifetime of S. But the fact is that the estate of G. F., which consisted principally in Bank of England and British government stocks, was not transferred to him as the agent or attorney of the legal representatives of the intestate, but in his character of administrator. He could not have obtained the property, except as administrator. Having duly obtained letters of administration on the estate, according to the laws of that country, his character as agent or attorney ceased, or became merged in that of administrator. Ifthe property had been trans- ferred to S. himself, as administrator of the estate of G. F., the possession, according to the cases which have been cited, would not have been such as to prevent, in case of his death, his wife’s 364 COVERTURE. claim as survivor. A fortiori, then, the possession of V. as ad- ministrator would not be sufficient to produce that effect. The claim or interest of S. was only under the statute of distribution or @ mere chose in action. 8 Vesey, 469. Again, S. could not, at the time of his death, have enforced that claim, either at law or in equity. V. arrived in England in August, 1811; the date of the letters of administration granted to him in England does not appear. Those in Ireland were dated October 12, 1812. S. died September 26th, 1812. A year, therefore, had not elapsed at the death of S.; and by the Statute of 22 & 23 Charles I., c. 10, no distribution of an intestate’s estate can be made until after the expiration of one year from the time of granting administra- tion; and the administrator is allowed a year to render his account and close the estate. Toller, 97. But, admitting that 8. could have enforced his claim for his wife’s share, it must have been in a Court of equity, not in a Court of law. 5 T. R., 692; 5 Vesey, 516; Toller’s Law of Ex. 479, 489. And she must have been joined in the suit. 1 Madd. Ch. 884; 1 Fonbl. Eq. 818 ; 3 Vesey, 469; 5 Vesey, 516. And, if he died pending the suit, the right would survive to her ; or, if there had been a decree, she would have had the benefit of it. 1 Ch. Cas. 27; 4 Hen. & Munf. (Va.) 452. The CHANCELLOR. The question submitted in this case is, how far, and to what extent, Henry T. E. Schuyler, deceased, had reduced to possession the distributive share belonging to his wife, of the estate of Gerrit Fisher, deceased, so as to be enabled to transmit the same, as part of his personal estate, to the plaintiffs, his children, and prevent it from surviving to his wife. ~ After stating the facts of the case, his honor proceeded: The only point in the case arising from these facts is, whether the distributive share of the $400,000 belonging to Mrs. Schuyler, and which came from N. J. V., the administrator, to Bleecker, after the death of S., did or did not survive to the wife, as not having been reduced to possession by the husband in his lifetime. I am relieved from the necessity of examining into the effect of the receipts by B., prior to the husband’s death, because his wife’s share, and more than his wife’s share, of those receipts, were paid over to the husband. After looking into the authorities which have been referred to by the counsel, and upon a consideration of the doctrine of the cases, there remains no doubt in my mind, SCHUYLER v. HOYLE. 365 that the wife was entitled, as survivor, to all that portion of her distributive share which was not paid over -to Bleecker, but re- mained in the hands of the administrator of F. at the time of her husband’s death. There is not even color for the pretension, on the part of the plaintiffs, that the assets of F., the intestate, which were in the hands of his administrator on the death of S., were to be considered as no longer things in action, and held by him as administrator, but as actually reduced to the husband’s possession, so as to cut off the right of survivorship in the wife. As I do not know that this question has ever been discussed in this Court, it will be satisfactory to review some of the leading cases. We have no concern, at present, with the doctrine that establishes the husband’s right to his wife’s choses in action in case he survives her. It appears to be settled that he is, in that event, entitled to them, whether they were or were not reduced to pos- session by him in her lifetime. Her whole personal estate in action, as well as in possession, vests in the husband upon her death ; for his right to administer on her personal estate includes a right to her choses in action. They vest in him by the statute of distributions, as her next of kin. Squib v. Wyn, 1. P. Wms. 878; Cart v. Rees, cited id. 881; Elliot v. Collier, 3 Atk. 526; Humphrey v. Buller, 1 Atk. 458; Co. Litt. 351 a, note 304 ; Whitaker v. Whitaker, 6 Johns. 102. Nor have we any concern at present with the doctrine, that, if the husband and wife give a letter of attorney to a third person, to receive a legacy due to the wife, as was the case in Huntley v. Griffith (Gouldsb. 159 ; Moore, 452, s. c.), or if he alone gives a letter of attorney, according to the dicta of the judges in that case, a receipt by the attorney changes the property of the legacy, and transfers it to the possession of the husband. That doctrine does not apply ; because the attorney, in the present case, did not receive the property for which the defendants are sought to be accountable until after the husband’s death. The present inquiry then is, whether there was any such interference or change of the wife’s property, by the husband before his death, though it did not come actually into his possession or into that of his attorney, as to take away the right of survivorship in the wife. And for the more full illustration of the point, we will see what acts the hus- band may do, to affect the wife’s property without reducing it to actual possession. 866 COVERTURE. In the first place, he may assign, for a valuable consideration, his wife’s choses in action. This was agreed to in Carteret v. Paschal, 8 P. Wms. 197, and expressly decided in Bates v. Danby, 2 Atk. 206. The wife, in the last case, became entitled, during coverture, to a distributive share of an intestate’s estate ; and that share consisted of two mortgages, which the husband took and left with a creditor, under a promise to assign them, by way of security, but died before actual assignment. Lord HarpwicKe held this to be an assignment in equity, pro tanto, so far as the debt to the creditor was concerned, and that though the husband might have disposed of the whole interest, yet, as he did not, the residue of interest in the mortgages belonged to the wife surviving her husband. So, again, in Jewson v. Moulson, 2 Atk. 417, the wife was entitled before marriage as a legatee of her father; and the husband assigned all the interest which he was entitled to in her right to her father’s personal estate, to a creditor. But the Chancellor allowed the creditor’s claim only on condition of his agreeing to make a separate provision for her and her children. The doctrine of these cases is, that the husband may assign his wife’s choses in action, for a valuable consideration, to a creditor ; but even then the assignment is subject to her equity for a reason- able provision. Vide the cases of Pryor v. Hill, 4 Bro. 189; Like v. Beresford, 3 Vesey, 506, 8. P. Those cases also show that there is no distinction between the case of an interest vesting in the wife before or after coverture; and the inference from them is (and the position is expressly conceded in other cases, and is well estab- lished: Burnet v. Kinnerton, 2 Vern. 40; Lord Tuurtow in Sad- dington v. Kinsman, 1 Bro. 51, note to P. Wms. 381), that a vol- untary assignment by the husband of the wife’s personal property in action, without consideration, will not bind her, if she survives him. This admission of the right of assignment, for a valuable con- sideration, so as to pass the right of property free from the wife’s contingent right of survivorship (though not from the wife’s equity for a reasonable provision for her support), and the denying of this effect to a voluntary assignment, were also expressly declared by the Master of the Rolls in Mitford v. Mitford, 9 Vesey, 87. He there held that an assignment in bankruptcy had no greater effect than a voluntary assignment, and he applied the rule to the case of a legacy given to the wife during coverture. It is to be observed that we are examining the cases in SCHUYLER v. HOYLE. 367 respect to the question of the wife's right of survivorship, and how far the property has been altered so as to prevent it. We have nothing to do at present with the point, which so often appears in the chancery cases, how far the husband’s assignment of the wife’s property may affect what is termed the wife's equity to a reasonable provision out of the property for the support of herself and her children. The two questions are not connected, and present very different rules for consideration. In Gasworth v. Bradley, 2 Vesey, 675, Lord Harpwicke dis- cussed more fully the control which the husband had over the wife’s personal property lying in action. The wife had a legacy left her during coverture, and part of another legacy came to her by intestacy. The husband assigned over the whole interest, with a proviso that, at his request, the assignee should reassign. He died, and the wife survived him, and the question arose betweem the respective representatives of the husband and of the wife, whether the surplus of her estate arising from the bequest and the: intestacy survived. There was a settlement in that case, but the Chancellor decided the question arising on the survivorship of the legacy and distributive share, independent of the settlement, and upon the general doctrine applicable in the case. He observed that, whenever a chose in action came to the wife, whether vesting before or after marriage, it would survive to the wife, if she sur- vived her husband ; with this distinction, however, that, as to those things which came during coverture, the husband might bring an action in his own name, and might disagree to the interest of his wife; and a recovery in his name was equivalent to reducing it to possession, and it would go to his representatives ; and for which point he cited the case of Hilliard v. Hambridge, Aleyn, 36. He said, further, that the husband might have released the money, or have assigned it for a valuable consideration to a creditor or purchaser. But, in that case, as the assignment was not absolute, but with a proviso which created a trust for the benefit of the husband, there was no alteration of the property, as the husband was previously the owner, subject to the wife’s survivorship. The portion, therefore, of her estate not got in was held to have survived to the wife. With respect to a decree, judgment, order, or award in favor of the husband, as to money to which he was entitled in right of his wife, it seems to be a settled rule, that if he sues alone and 868 COVERTURE. recovers, the property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife ; but, if the suit was in their joint names, the wife, as a survivor, would take the benefit of the recovery. Oglander v. Baston, 1 Vern. 896; Nanny v Martin, 1 Ch. Cas. 27; Heygate v. Annesley, 3 Bro. 362; 1 Fonb. 305, 306, 308. It appears, then, by the cases which we have hitherto noticed, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the property, or assigns it without reservation and for a valuable consideration, or if he recovers it by a suit in his own name, or if he releases the debt, —in all these cases, the right of survivorship in the wife ceases. But, with respect to suits in this Court by the hus- band, for the wife’s legacy or distributive share, I apprehend the rule to be that the wife must be made a party. This was considered to be the rule, by the Master of the Rolls, in Lang- ham v. Nanny, 3 Ves. 467, who observed that, as the husband could not reach his wife’s property vested in trustees, who had the legal interest, without application to chancery, he could not sue without joining her with him; and then the Court would make him provide for her, unless she consented to waive any provision. And, again, in Blount v. Bestland, 5 Ves. 515, Lord Loues- BoRrouGH declared the same thing, and that the husband could not file a bill for the wife’s legacy without making her a party. And in Carr v. Taylor, 10 Ves. 578, the wife claimed a distributive share as next of kin to an intestate who died while she was a feme covert; and the Master of the Rolls observed, that, ‘“‘ whatever controversy there might have been upon the husband’s right to sue in his own name for the legal choses in action of his wife, he could not sue for this fund without joining her, and, if he had ob- tained a decree for it in her right, and died before he had reduced it to possesison, it would have survived.” The case of Blount v. Bestland may also be referred to, in order to show that any indulgence given by the husband to the executor holding the legacy for the wife, and even receiv- ing the interest of it, and suffering the principal to remain in the executor’s hands after the executor had showed a readi- ness to pay it, does not alter the nature of the property, or reduce it to the possession of the husband, so as to take away the right of survivorship to the wife. In Wildman »v. Wild- SCHUYLER v. HOYLE. 369 man, 9 Ves. 174, we have an equally strong instance of protec- tion given to the contingent right of survivorship. The wife, while under coverture, became entitled to a distributive share of personal estate, as next of kin, and which consisted partly in public stock. The administrator transferred her share into her name, and she and her husband had transferred some part. of it, and the residue stood in her name at his death. The Master of the Rolls, without giving any opinion whether the husband had a right to have transferred the stock into his own or another name, held that, as the husband had not exerted any power to reduce it into possession, the property did not vest in him so as to prevent the wife from taking it as survivor. A still more striking in- stance of the scrupulous care over the wife’s right appears in Baker v. Hall, 12 Ves. 497. The husband, as executor, took possession of the real and personal estate of the testator, and his wife was a residuary devisee. But, as the husband took possession in the character of trustee and executor of the will, and not as husband, the Master of the Rolls held that the wife’s share of the residue of the personal estate could not be deemed sufficiently reduced into possession so as to prevent its surviving to her upon his decease. And it has also been since ruled, (Wall v. Tomlinson, 16 Ves. 418,) that a transfer of the wife’s stock to the husband, merely as a trustee, was not a reduc- tion into possession so as to bar her right of survivorship, for it was made diverso intuitu. Under the doctrine settled in these cases, there is no pretence for the suggestion that the distributive share of Mrs. Schuyler, which remained in the hand of N. J. V., the administrator of the intestate, at the time of the death of S., was reduced into the possession of S., so as to entitle his representatives to that share in preference to his widow. While the share remained in the possession of the administrator, it retained the character of assets, and the legal title and possession were in him, qua administrator. The distributive share continued in the pos- session of the administrator as much as the legacy continued in the possession of the executor in Blount v. Bestland. Schuy- ler had not attempted to exercise any authority or dominion over that property, by mortgaging it or assigning it. The letter of attorney authorizing N. J. V. to take out letters of administration and distribute the shares coming to the heirs, 24 870 COVERTURE. was a power executed by the husband and wife jointly, and the direction to pay over was a direction to pay to them jointly the share of the wife. If the administrator was to have been compelled by suit to distribute, it must have been by a suit in equity in their joint names; and, from what was said in Camp- bell v. French, 8 Ves. 321, it may be questioned whether the Court would not have required, under the circumstances of this case, the consent of the wife, before it required the administrator to pay to the husband alone. There is nothing in this case to show that the husband ever intended, by any act of his, to appropriate this share to himself, so 4s to cut off his wife’s contingent right of survivorship. We should act in contradiction to the whole course of the decisions, as well as to the truth of the fact, if we were to consider the share of the wife, before it passed out of the hands of the administrator, as being reduced to the husband’s possession. The husband died before he or his attorney received the share now in question, and before he had exercised any au- thority or dominion over it. I am, accordingly, of opinion, that the defendant, Sally H., upon the death of her husband, S., became entitled, in her own right, to that portion of her distributive share which had not been actally paid over to S. or to Bleecker, his attorney, in his lifetime ; and I shall so declare the rule. Decree accordingly. See next two cases and notes. Haywarp v. Haywarp. (20 Pick. 517. Supreme Judicial Court of Massachusetts, October 8, 1838.) Distinction between ante and post nuptial choses in action. —If a distributive share of intestate personal estate accrue to a married woman during coverture, and the husband die before the decree of distribution, and without any act on his part reducing it to possession, it survives to the wife. THIS was an appeal from a decree of the judge of probate. By an agreed statement of facts it appeared, that in November, 1831, Seth Hastings died intestate, leaving three children, one of whom was the appellant, at that time the wife of Caleb Hay- ward ; that letters of administration on the estate of the intestate were duly granted to William S. Hastings; that in March, 1832, HAYWARD v. HAYWARD. 871 before any distribution of the personal estate was decreed, Caleb Hayward died intestate; and that letters of administration upon his estate were granted the appellee. If upon these facts the Court should be of opinion that the appellee was entitled to a distributive share of the personal estate of Seth Hastings, the former accounts of administration settled by the administrator of Seth Hastings were to be opened, and the decree of distribution made on the settlement of the first account, whereby a portion of the personal estate in the hands of the administrator was distributed among the three children of Seth Hastings, was to be reversed, and a new distribution decreed and made. But if the Court should be of opinion that the appellant was entitled to a distributive share of such personal estate, then distribution was to be decreed accordingly of the balance remaining in the hands of such administrator, after de- ducting therefrom the sum of $2,000, which was to be afterwards accounted for by him. The case was argued in writing. W. S. Hastings for the appellant, cited 2 Kent (2d ed.), 185 to 148; Betts v. Kimpton, 2 Barn. & Adolph. 273; Toller, 217, 219, 220, 224, et seq.; T Am. Jurist, 321, 322, and cases cited ; Mitford v. Mitford, 9 Vesey, 87; 1 Roper on Property of Hus- band and Wife, 201 et seg., 210, 228, 259, 260; Co. Litt. 351; Legg v. Legg, 8 Mass. 99; Draper v. Jackson, 16 Mass. 486; 1 Williams on Executors, 549 e¢ seg.; Blount v. Bestland, 5 Ves. 515; Wildman v. Wildman, 9 Ves. 174; Nash v. Nash, 2 Madd. 133; Baker v. Hall, 12 Vesey, 497; 1 Dane’s Abr. 342; 2 Com.. Dig. Baron & Feme, E.3; Garforth v. Bradley, 2 Ves. Sen. 676; Richards v. Richards, 2 Barn. & Adolph. 447. Washburn, for the appellee. The first question is, whether: the interest of the wife in the distributive share in question was, before a decree of distribution was made, an interest in personal chattels or a chose in action. In regard to real estate of an intestate, it is clear that it passes. immediately upon his death to his heir. But with regard to the personal estate, the fee (if this term may be so used) of the chat- tels passes to the administrator, who holds them as trustee. The rights of the heir, or distributee, are merely inchoate, and cannot be enforced until after a decree of distribution; and then he is not entitled to recover a part of any specific articles, but only a 872 COVERTURE. share of the pecuniary value of the personal estate, if the admin- istrator neglects to sever and distribute the personal chattels to the respective distributees. The better opinion, therefore, seems to be, that the interest of the distributee is a chose in action. 1 Dane’s Abr. 350, cites Taber v. Packwood, 1 Day, 150. The next question is whether this chose in action, having accrued to the appellant during her coverture, vested absolutely in the husband, or whether, upon his death before a decree of distribution was made, it survived to the wife. We contend, that, upon the death of the intestate, this chose in action, this inchoate right to a distributive share of intestate personal estate, vested immediately in the husband, and must go to his repre- sentative, to be distributed as his estate. Toller on Executors, 224, 225; Clapp v. Stoughton, 10 Pick. 468; Commonwealth »v. Manley, 12 Pick. 173. The distinction between the cases seems to be this: The hus- band has only a qualified interest in choses in action belonging to the wife before marriage; and, unless he reduces them to possession during coverture, they become the sole property of the wife if she survives him. But as to choses in action acquired or accruing during coverture, the property in them vests abso- lutely and at once in the husband. Clapp v. Stoughton, 10 Pick. 468; Commonwealth v. Manley, 12 Pick. 173, and cases cited; Toller, 225; Com. Dig. (Day’s ed.) Baron & Feme, E. 3; Gris- wold v. Penniman, 2 Conn. 564. Dewey, J., delivered the opinion of the Court. The question to be decided in this case is, whether the share of personal intes- tate estate accruing in right of the wife during coverture vests absolutely in the husband, so that, in the event of his death before the decree of distribution, the wife will not be entitled to it by survivorship. It seems to be very clearly settled, and by a uniform current of authorities, that the distributive share in an intestate estate, immediately upon the death of the intestate, vests in the heir at law; and, in case of his decease before a decree of distribution, the share belonging to him would go to his personal representative. In Brown »v. Shore, 1 Show. 25, the case is thus stated. J. §. died intestate, leaving A. and B. his next of kin. A. dies within a year, and before any actual distribution. It was held by Lord Hotr that, by the death of J. S., A. acquired a present interest, and his share should go to his executor. HAYWARD v. HAYWARD. 873 In Cary v. Taylor, 2 Vern. 302, it was held that one’s share in an intestate estate is ‘‘an interest vested, and that before any distribution made, or the time by the statute limited for the making distribution was expired.” So in Wallis v. Hodson, 2 Atk. 117, Lord Harpwicxe says, the distributive shares vest immediately upon the death of the intestate. The same doctrine is found in 1 Madd. Ch. Pract. 637; Toller on Executors, 304; 2 Roper on Wills, 210; Bac. Abr. tit. Executors and Adminis- trators, I. No objection, therefore, arises to ‘the claim of property in the husband in the distributive share, from the fact that he deceased before the making of the decree of distribution. But the decision of this point does not settle the general question of the right of survivorship in the wife. The question still recurs, Does this interest in the distributive share accruing in the right of the wife during coverture so vest in the husband, that in the event of his decease without any act on his part reducing it to possession, it shall not survive to the wife? The general rule as to choses in action which belong to the wife at the time of the marriage is well settled. They do not vest absolutely in the husband. He acquires by the marriage only an inchoate right; he may reduce them to possession and take the avails of them; but if the wife survives the husband, and the choses remain uncollected, she is entitled to them, and they do not pass to bis personal representatives. The counsel for the administrator of the husband admits this to be the rule of law as to all choses in action thus situated; but he insists upon a different rule as to all choses and rights of action accru- ing during coverture, and claims that the latter, without being reduced to possession, vest absolutely in the husband, and in the event of his death do not survive to the wife. Can this distinction be supported upon principle or by the adjudged cases? ~The only English authorities which are relied upon to sustain the position, that the right of survivorship in the wife does not exist in a case like the present, are Cary v. Taylor, 2 Vern. 302; Toller on Executors, 225; and Com. Dig. tit. Baron & Feme, E. 3. The first of these has been already noticed as a case establish- ing the doctrine, that a distributive share in an intestate estate vests immediately upon the death of the intestate in the heir 374 COVERTURE. at law. It seems also to assume that such a distributive share accruing in right of the wife during coverture does not survive to the wife in case of the decease of her husband before reducing it to possession. It is often cited as a leading case to support such a doctrine. But in fact the question of the right of sur- vivorship of the wife did not arise, as the husband survived the wife; and it further appears, from the judgment of the Court more fully stated in the later edition of Vernon’s Reports, edited by Mr. Raithby, that the case was decided in favor of the hus- band on the ground of his rights acquired under a marriage set- tlement, which had been made between the parties. In Toller on Executors it is said, that a legacy given to the wife vests in the husband, and must be paid to him. The right of the husband to enforce the payment of a legacy given to his wife, and to assume the entire control and disposition of it, is unquestionable. He has also the same rights in relation to her choses in action belonging to her before the intermarriage. In the latter case, it is true, a suit must be instituted in their joint names; but this does not affect in the slightest degree his author- ity to release the demand, or to appropriate it exclusively for his own benefit. We were referred to Comyn’s Dig. (Day’s ed.) tit. Baron & Feme, E., as sustaining the right of the administrator of the hus- band. The principle there stated, and which has a direct bear- ing upon the question, is only to be found among the addenda to Comyn by the American editor, and rests solely upon the case of Griswold v. Penniman, 2 Conn. 564, which will be here- inafter commented upon. Comyn also states another legal principle upon which some reliance may be placed by those who deny the right of the wife to take as survivor, and which may deserve consideration. He states the rule of law to be that, if a legacy is bequeathed to a feme covert, and she dies before the payment of the same, her husband, if he survives, is entitled to it. This position is undoubtedly well sustained by decisions both in England and in this country (Schuyler v. Hoyle, 5 Johns. Ch. 206), but is not considered, by those Courts that have thus ruled, as in any degree inconsistent with the doctrine of the right of the wife in case she is the survivor and the right has not been reduced to possession by the husband. Blount v. Bestland, 5 Ves. 515. In addition to the English authorities, Reeve’s Dom. Rel. 61 : HAYWARD v. HAYWARD. 875 and the case of Griswold v. Penniman, 2 Conn. 564, were cited as sustaining the views of the counsel for the plaintiff. Judge Reeve holds, as the rule at law, that a share of personal intestate estate accruing in the right of the wife during coverture vests absolutely in the husband, and does not, in the event of his death, survive to her; while he admits the doctrine in the Court of Chancery to be the other way. He cites no authority except the case of Cary v. Taylor, 2 Vern. 302, which, being a case in chancery, it would seem must have been overruled by the subsequent cases; and, as has been already remarked, the case alluded to was decided, not on the general question, but upon a marriage settlement. The opinion of Judge Reeve that the rule at law is as above stated, does not seem to be supported by any adjudicated cases in which the wife had attempted to enforce her claim as survivor, but rests upon the assumption that such must be the rule of law resulting as a necessary consequence from the well established rule, that the husband may sue in his own name in causes of action accruing during coverture. ; The case of Griswold v. Penniman was decided by the Supreme Court of Connecticut in accordance with the views suggested by Judge ReeEV=e in his treatise just referred to. The decision was placed upon the same ground, the Court holding the general doctrine to be that, if the husband may sue alone, the property demanded in the suit must have absolutely vested in him, and would not, in the event of his decease, have survived to the wife. Is that doctrine correct? I think it is not; and that there are many cases in which the husband may sue in his own name with- out joining his wife, where the right of the wife as survivor is unquestionable. In the case of a bond given to husband and wife, the husband may sue in his own name. Ankerstein v. Clarke, 4 T. R. 616; 1 Dunlap’s Practice, 42. So, on a cove- nant made with husband and wife, the husband may bring the. action alone. Beaver v. Lane, 2 Mod. 217. In both of the above cases the right or cause of action would survive to the wife, if the husband did not reduce the same to possession during his life, Draper v. Jackson, 16 Mass. 482 ; Schoonmaker v. Elmendorf, 10 Johns. 49; 1 Dunlap’s Pract. 43, In 2 Stark. Ev. 688, zm notis, it is said that there are cases in which a cause of action accrues during marriage, which would 3876 COVERTURE. survive to the wife, but where the husband may sue alone, as in case of a bond or promissory note given to the wife during coverture. See also 1 Barn. & Ald. 218. If this be correct, then the right of survivorship in the wife is not to be tested by the right of the husband to institute a suit in his own name. A test of a different character is more frequently mentioned in the books, viz., when the wife cannot maintain an action for the same cause, if she survives her husband, the action must be brought by the husband alone. Com. Dig. Baron & Feme, W.; Bing. on Coverture, 253; 2 Stark. on Ev. 684, im notis ; Draper v. Jackson, 16 Mass. 482. It must be conceded that the rules as to the joinder of husband and wife in actions at law are some- what contradictory, as stated by different elementary writers and in the reported opinions of learned jurists. It may, how- ever, I think, be safely affirmed, that the right of the husband to sue in his own name does not necessarily prove that, as to the interest demanded in the suit, the property had vested absolutely in the husband, and would not have survived to the wife. Leaving for the present the consideration of our own reported cases, it would seem that the doctrine that the wife has no right of survivorship in choses in action accruing during coverture is found directly supported by no decisions to which we are referred, unless it be those of Cary v. Taylor and Griswold v. Penniman, and by no elementary writer except Judge REEVE. The case of Robinson v. Taylor, 2 Bro. Ch. Cas. 589, is often cited as bearing upon this question; but it only establishes the right of the husband to assign a chose in action accruing during coverture. A treatise entitled ‘Baron and Feme” furnishes no authority for the doctrine, except the case of Cary v. Taylor so frequently alluded to. On the other hand, as establishing the right of the wife by survivorship to interests accruing in her right during coverture, and which the husband has not assigned, released, or in any way reduced to possession, will be found the following authorities : — In Garforth v. Bradley, 2 Ves. Sen. 676, it was held, that, whenever a chose in action comes to the wife, whether vesting before or after the marriage, if the husband die in the lifetime of the wife, it will survive to the wife, with this distinction, that as to those which accrue during coverture the husband may for HAYWARD v.. HAYWARD. 3TT them bring an action in his own name, may disagree to the inter- est of the wife, and a recovery in his own name is equivalent to reducing it to possession. In Elliot v. Collier, 1 Wils. 618, Lord Harpwickr fully sus- taius the right of the wife, as survivor, to choses accruing during coverture and not reduced to -possession. The case of Wildman v. Wildman, 9 Ves. 175, was thus: Mrs. Wildman, during coverture, became entitled to a distributive share of personal estate. A part of the estate consisted of three per cent stock. The administrator transferred her share into her name, and thus it stood at the death of the husband; and the question was whether this stock constituted a part of the hus- band’s estate, or belonged to the wife by survivorship. The Master of the Rolls, Sir Witt1am Grant, says: “It is admitted that the interest which she took at the death of the intestate did not vest absolutely in the husband,” and he held further, that the transfer of the stock to her name did not reduce it to the possession of the husband, so as to prevent her right by survivorship. In Baker v. Hall, 12 Ves. 497, the wife was residuary devisee, and her husband was executor, and, as such, took possession of all the estate of the testator; but it was ruled that the legacy to the wife, even with the possession of the husband as executor, was not vested in the husband so as to prevent its surviving to the wife upon his decease. It was held in Richards v. Richards, 2 Barn. & Adolph. 447, that choses in action which are given to the wife either before or after the marriage survive to her after the death of the hus- band, provided he has not reduced them to possession. The case of Nash v. Nash, 2 Madd. 133, is also in point. In this case the father, after the marriage of his daughter, drew a check in her favor on his bankers for 10,0007. The bankers gave her a promissory note for the amount of the check; the husband had received on the note 1,000/., and the interest on the whole sum up to his death. It was held that, upon the death of the husband, the daughter was entitled to the note as a chose in action which had survived to her. In the opinion given by Dampirr, J., in the case of Philliskirk v. Pluckwell, 2 Maule & Selw. 393, is cited the case of Day 378 COVERTURE. v. Pargrave, decided in Trinity Term 13 and 14 Geo. II.; where Les, C. J., ruled, if a bond is given to the wife during coverture, the husband and wife may have a joint action during their lives, or the husband may during coverture bring such action in his own name; yet, if he does not, it survives to the wife. The general rule of law applicable to the present case is fully and distinctly stated in the treatise of Clancy on Husband and Wife, 4. Itis thus: The choses in action accruing to the wife during coverture, as well as those belonging to her at the time of the marriage, are the husband’s property only conditionally ; that is, provided he reduce them into possession in her lifetime ; and, if he do not, and he should die first, then she would take them by survivorship. The doctrine of the right of survivorship in the wife to choses in action accruing during coverture has been very frequently recognized in this country. Our American commentator, Mr. Dane, is very explicit on the subject; holding that a legacy given to a woman during coverture, if not reduced to possession, sur- vives to her, and also that, in a distributive share of an intestate estate thus accruing, she has the same right of survivorship. 1 Dane’s Abr. 342, 844. Mr. Dane cites no authority for these positions ; but his decided views on the subject leave no reason to doubt he states the law as generally understood by his co- temporaries. , There is an early case which sustains the doctrine of the right of survivorship in the wife to a chose in action accruing during coverture, which will be found stated in American Precedents of Declarations (edition of 1810), 47. It was the case of Foster’s Executor v. Smith, decided in the Supreme Court of Massachusetts, A.D. 1784. In this case a bond was given by the defendant to the wife of Foster, conditioned to pay her a sum of money, and the husband having died without reducing it to possession, the wife surviving, but she also having died before the payment of the money due on the bond, the ex- ecutor of the husband brought an action to recover the same; but it was held by the Court that he could not sustain the action, as the right had survived to the wife. In the Circuit Court of the United States held in Virginia (MarsHaLL, C. J., presiding), in the case of Gallego v. Gallego, HAYWARD v. HAYWARD. 879 2 Brock. 285, it was decided that a legacy is a chose in action, and the marital right of the husband to a legacy given to his wife does not attach until it is reduced to possession. So in Wallace v. Talliaferro, 2 Call, 447, it was held that pos- session taken by the husband as executor is not such an appro- priation as will prevent the wife’s right of survivorship. This subject has been very fully considered in the case of Win- tercast v. Smith, 4 Rawle, 177, in which it was decided that a legacy given to a married woman belonged to the wife on the dissolution of the marriage, where the husband had not reduced it to possession. The right of the wife by survivorship as to choses in action accruing during coverture, had been previously recog- nized in Pennsylvania in the case of Lodge v. Hamilton, 2 Serg. & Rawle, 491. The same doctrine is held in the Courts of South Carolina. Harleston v. Lynch, 1 Desaus. 244; Clifton v. Executors of Haig, 4 Desaus. 330. But a case more directly in point, and one entitled to great weight as giving us the opinion of a learned jurist, is that of Schuyler v. Hoyle, 5 Johns. Ch. 196. Mrs. Schuyler was one of the heirs at law of Gerritt Fisher, who died intestate, leaving a large personal property. Mr. Schuyler, her husband, died before the payment over by the administrator of Fisher of the distributive share of his wife, except a small sum which he had re- ceived. The wife of Schuyler claimed the balance as her property by right of survivorship; and the heirs at law of Mr. Schuyler claimed it as theirs, on the ground that the distributive share had vested absolutely in him. The question was fully argued, and the earlier authorities cited. Chancellor Kent, in the opin- ion delivered by him, says: ‘¢ After looking into the authorities, and upon a consideration of the doctrine of the cases, there re- mains no doubt in my mind that the wife was entitled as survivor to all that portion of her distributive share which remained in the hands of the administrator of Mr. Fisher at the time of her husband’s death.” He further adds: “ We should act in contra- diction to the whole course of decisions, if we were to consider the share of the wife, before it passed out of the hands of the administrator, as being reduced to the husband’s possession.” If this question be an open one in this Commonwealth, it seems to me very clear that the decided preponderance of authority in favor of the right of the wife should lead us to sustain that doc- 380 COVERTURE. trine, unless it can be shown that these decisions are erroneous in principle. For myself, I cannot perceive any tenable ground for a distinction to be taken between choses in action accruing to the wife before or after coverture, as respects her right of surviv- orship. I can see a good reason why all her earnings should be entirely blended with her husband’s. I can see some reason for the technical rule which requires that the husband shall join his wife with him in all actions to enforce rights accruing to her before marriage, while he may or may not join her with him in actions where the interest accrued to her during coverture ; but’ here, as it seems to me, the distinction ceases, and, as regards all rights acquired by devise, by the statute of distributions, or by gift from others, the rights of survivorship should be the same whether the interest accrues before or after marriage. This brings us to the inquiry, has this question been judicially settled in this Commonwealth, and adversely to the rights of sur- vivorship in the wife? It is not claimed that it has been, in any case arising under circumstances precisely like the present. But itis strongly urged upon us that, in several cases, certain principles have been recognized by this Court having a direct bearing on the general question, and which are decisive against the. defendant. The cases referred to are those of Shuttlesworth v. Noyes, 8 Mass. 229; Clapp v. Stoughton, 10 Pick. 468; Commonwealth v. Manley, 12 Pick. 173; Goddard v. Johnson, 14 Pick. 852. The first of these was a case of a promissory note, payable to a feme covert, the consideration of which was partly a debt due before marriage, and partly a sum due on the distribution of the estate of the father of the feme covert; and the question was, whether the maker of such a note could be summoned as trustee of the husband in a suit at law under our trustee process; and it was held that he might be. It will be perceived that here was no question of right of sur- vivorship, as both husband and wife were living. The question was merely whether a creditor might compel the exercise of the undoubted right of the husband to collect this chose in action. The case required no adjudication adverse to the rights of the wife by survivorship, and could only operate upon those rights indirectly. The husband has a qualified or conditional property in himself in all choses im action accruing during coverture; and he may, at his pleasure, during his life, reduce them to possession, HAYWARD v. HAYWARD. 381 and, in such an event they become absolutely his. This right, and under the same limitations, this Court holds to be the subject of a process in favor of the creditors of the husband.!' We consider it as a statute assignment, and give the same effect to it, although effected by a compulsory process, as would be given to a volun- tary assignment by the husband. I am aware that on this point a different rule has been adopted in some of our sister States ; but in this Commonwealth, the principles above stated have been often applied, and the rule is well settled. In Commonwealth v. Manley, a question arose as to the prop- erty in a note given for a distributive share inherited by a feme covert, the note not being made to her as payee, but held as in- dorsee. The note was described in the indictment as the sole property of the feme covert; and the Court held that this was erroneous. Of the correctness of this decision there can be no question ; inasmuch as, whether this note would or would not vest in the wife as survivor, the husband had, in either view of the case, a present interest in the note, and the rules of criminal law require this interest to be accurately set forth in the indictment. The case itself therefore did not require a decision of the present question, and cannot be considered as a direct authority in refer- ence to it. It must be admitted, however, that in this, as well as in the case of Shuttlesworth v. Noyes, there may be found dicta of the judge who pronounced the opinion, which, if they had been applied by the Court to a question arising upon a state of facts like those existing in the present case, would be strong judi- cial authorities against the right of the wife. The case of Goddard v. Johnson, 14 Pick. 352, was an action brought by the husband, after the decease of his wife, to recover a legacy given to the wife during coverture. The Court sustained the action. That the avails of this legacy belonged to the hus- band is very clear, and, as has been before remarked, is in ac- cordance with the rule of the English Courts; but it is not there understood as militating against the principle of the right of the wife to the legacy, if she survives, as is shown by the cases al- ready cited on the general question. The only doubt as to this case is, whether the husband ought not to have taken letters of administration upon the estate of his wife, and instituted his suit as such administrator. 1 See, however, Wheeler v. Moore, 18 N. H. 481; Dennison v. Nigh, 2 Watts, 90 and note (post). 382 COVERTURE. Clapp v. Stoughton, 10 Pick. 468, was a case where the wife had survived her husband, but she also had died before the action was brought; and the question raised was whether the adminis- trator of the wife could maintain an action for the rents and profits of the real estate of the wife which had accrued during coverture; but had not been collected or reduced to possession by the husband. The decision was against the right of the wife; but it was remarked by the Court that the case was not free from doubt and that the authorities were conflicting and not easily reconciled. It will readily be perceived that the above case differs materially from the case at bar. That denied the right of the wife, as sur- vivor, to the income which had accrued during coverture from her real estate. In this the Court are asked to deny to the wife her right, as survivor, to the principal of a fund inherited by her during coverture. It would seem to bea very reasonable doctrine that the husband should enjoy, as his own acquisition, the annual income of the real estate of his wife. The effect of the marriage is to give him a freehold in her real estate ; and this should draw with it an absolute right to the rents and profits accruing from it during the continuance of his interest in the estate. In considering the state of this question in reference to our own decisions, we should not overlook the case of Draper v. Jackson, 16 Mass. 480, where this Court ruled in favor of the wife, as sur- vivor, as to the property of a note and mortgage given to the husband and wife during coverture. The principles settled in that case have been considered as modifying, if not overruling to some extent, the reported opinion pronounced by the judge who stated the decision of the Court in the case of Shuttlesworth v. Noyes. It is understood by the Supreme Court of Pennsylvania as entirely overruling it. 4 Rawle, 177. Another case also entitled to some consideration is that of Deane v. Richmond, 5 Pick. 468, where the more immediate ques- tion decided was as to the effect of a divorce a mensa et thoro upon the choses in action accruing in right of the wife; but in the opinion of the Court it is distinctly stated, that a promissory note given to the wife during coverture, with the consent of the husband, for certain real estate of the wife, would survive to the wife in case of the death of the husband, if he had not reduced it to possession. It seems to me, upon a careful review of all the cases in which GRISWOLD v. PENNIMAN. 383 this subject has been incidentally or otherwise before this Court, that the adjudications are not of so controlling and decisive a character as to preclude us from the full consideration of the question upon general principles, and with reference to the deci- sions of other judicial tribunals and the opinions of learned com- mentators. The result of such a consideration of the question now presented for our adjudication is a full conviction on our minds, that there is no such distinction, as to the rights of survivorship by the wife, between those choses in action that accrue before and those that accrue during coverture as is claimed by the coun- sel for the administrator of the husband ; but that, in either case, if the husband die without reducing them to possession, they survive to the wife. Such, I apprehend, is the well settled law of England, and the same doctrine has been distinctly recognized in the States of New York, Pennsylvania, South Carolina, and Virginia. It has had the sanction of Lords HarDwickE and TENn- TERDEN in England, of Chief Justice MarsHaLh, Chancellor Kent, and many other eminent jurists in this country. The Court are therefore of opinion that the appellant, Mrs. Hayward, is entitled to the distributive share in the estate of her late father, which descended to her during coverture, her hus- band having deceased without reducing it to possession. Decree in favor of the appellant. See next case and notes, GRISWOLD v. PENNIMAN. (2 Conn. 564. Supreme Court of Errors of Connecticut, June, 1818.) Distinction between ante and post nuptial choses in action. — A share of personal in- testate estate, accruing in right of the wife during coverture, vests, even before distribution made, in the husband absolutely, and does not, in the event of his prior death, survive to her. Tus was an action on a probate bond, tried at Norwich, January Term, 1818, before Swirt, C. J.,and BRaINARD and Gop- DARD, JJ. 884 COVERTURE. Joshua Starr died intestate, leaving personal estate and sey- eral children, one of whom was the defendant, Mary Penniman, then wife of John Penniman. Administration was taken on the estate of the deceased; but no distribution was made to the heirs until after the death of John Penniman. On his decease, the defendant, Mary Penniman, took ad- ministration on his estate, and gave the bond on which this suit is brought, for the faithful performance of her trust. The breach relied on was that she had not inventoried, as the es- tate of John Penniman, that portion of the estate of Joshua Starr, consisting of personal property, which was distributed to her as one of his heirs. The plaintiff contended that this property, on the death of Joshua Starr, vested absolutely in the husband. The defendants eantended. that it vested in Mary Penniman, as a chose in action not reduced to possession, and so remained during the coverture, and, on the death of her husband, survived to her. The Court decided this point, and rendered judgment in favor of the defendants. The plaintiff moved for a new trial ; and the motion was reserved in the usual manner. Cleaveland and T. §. Williams, in support of the motion, [cited Com. Dig. tit. Baron & Feme, E. 8, citing 2 Rol. 184; Bac. Abr. tit. Baron & Feme, D.; Palmer v. Trevor, 1 Vern. 261; Ayer v. Fitch, 2 Conn. 145, 146 ; Reeve’s Dom. Rel. 60 ; Barlow v. Bishop, 1 East, 432 ; Shuttlesworth v. Noyes, 8 Mass. 229; Cary v. Taylor, 2 Vern. 302.] Goddard, contra, [cited Garforth v. Bradley, 2 Ves. 676; Coppin v. , 2 P. Wms. 497; Carr v. Taylor, 10 Ves. Jun. 578; Reeve’s Dom. Rel. 62; Prat and ux. v. Taylor, Cro. Eliz. 61; Brashford v. Buckingham and ux. in error, Cro. Jac. 77, 205; Hilliard v. Hambridge, Aleyn, 86; Rose and ux. v. Bowler et al. 1H. Black. 108, 114; 1 Chit. Pl. 20.) Swirt, C. J. The husband, by marriage, acquires a right to the use of the real estate of his wife during her life; and if they have a child born alive, then, if he survives, during his life, as tenant by the curtesy. He acquires an absolute right to her chattels real, and may dispose of them. If he does not dispose of them, and survives his wife, they survive to him; but, if she outlives her husband, they survive to her. He acquires an abso- lute property in her chattels personal in possession; but, as to GRISWOLD v. PENNIMAN. 885 her choses in action, he may maintain a suit jointly with her to re- cover them ; and, if he reduces them to possession during covert- ure, they become his ; otherwise, they survive to the wife if she outlives him, or to her administrator if she does not. As to the property of the wife accruing during coverture, the same rule is applicable, excepting in regard to choses in action. These vest absolutely in the husband, on the principle that husband and wife are but one in law, and her existence in legal consideration is merged in his. He may, in such cases, bring a suit in his own name, without joining his wife. This clearly proves that the chose in action vests in him absolutely ; for if the right was in the wife, she must necessarily join in. the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name. Barlow v. Bishop, 1 East, 482; Aleyn, 36. The consequence, then, is, that if the husband die before the wife, such choses in action shall go to his executor or adminis- trator, and they do not survive to the wife; for where the prop- erty has been absolutely vested, there can be no survivorship. It is true in certain cases, where claims originate during cov- erture, the husband may sue in his own name, or may join with the wife, as for rents issuing out of her real estate, or where she is the meritorious cause of action ; and then, if the husband die while the suit is pending, or after judgment, and before it is satisfied, the interest in the causes of action will survive to her, and not to the executor of her husband, though if he had sued alone she would have had no interest. 1 Chit. Plead. 19, 20. But this is far from proving that, if no suit had been brought, the chose in action would have survived to the wife ; it proves directly the contrary. For in this case the joining of the wife in the suit is the ground of the survivorship. It is agreeing to and recognizing her interest by the husband, and may be considered in the nature of a grant to her; and, for this reason, the suit or judgment may survive to her. But where no act is done by the husband, where no suit is brought or judgment rendered in favor of both, his separate, absolute interest continues, and can never survive to the wife. It is true that a contrary doctrine is laid down by Lord Harp- WICKE, in Garforth v. Bradley, 2 Ves. 676, on the authority of which the case was decided at the circuit. He says that a chose in action coming to the wife during coverture, unless the husband 25 386 COVERTURE. reduce it to possession, will survive to the wife; but agrees that the husband may bring an action in his own name. This opinion is contradictory to the whole current of authorities; and the concession that the husband may sue in his own name proves that the property absolutely vested in him, so that it could not survive without some act done by him. If the estate left by the father of Mrs. Penniman was chattels personal in possession, then they vested, at the time of his death, in her husband ; for a distributory share of chattels personal in possession is not a chose in action ; the right does not depend on the distribution, but originates by the statute, at the time of the death of the intestate. If he left debts which it was the duty of his ad- ministrator to collect, these would be choses in action which, by the common law, vested in. the husband on the death of her father. It has been said that a different rule has been adopted in equity ; but this is a mistake. Courts of equity, when husbands are obliged to resort to them to obtain possession of the property of their wives, have required that they should make reasonable provision for them, as when they apply to obtain legacies; but with respect to choses in action accruing during coverture in right of the wife, where the husband can sue in his own name without joining the wife, there has been no rule adopted in chancery different from law.! The other judges were of the same opinion. New trial to be granted. That by the common law the hus- band’s right to his wife’s choses in action is conditioned upon his reducing them to possession during the existence of the coverture; and that, upon the dis- solution of the marriage, either by the death of the husband or by divorce a vinculo, her choses in action not reduced to possession during the coverture sur- vive to and remain the property of the wife, see also Schouler’s Dom. Rel. 114; Daniels v. Richardson, 22 Pick. 565; Legg v. Legg, 8 Mass. 99; Rogers v. Bumpass, 4 Ired. Eq. 385; Weeks v. Weeks, 5 Ired. Eq. 111; Satter v. Williams, 10 Geo. 186, 189; Wells v. Tyler, 25 N. H. 340; John- son v. Johnson, 33 Ala. 284; Harper 1 “See Baldwin v. Carter, 17 Conn. 201; Fitch v. Ayer, ante [2 id.], 148; Cornwall v. Hoyt, 7 Conn. 420; Morgan v. Thames Bank, 14 Conn. 99; Whitaker v. Whit- aker, 6 Johns. 112; Commonwealth v. Manley, 12 Pick. 178; Wheeler v. Bowen, 20 Pick. 563. In Hayward v. Hayward, 20 Pick. 517, Dewey, J., comments at length upon this case, and holds a contrary doctrine. See also the case of Schuyler v. Hoyle, 5 Johns. Ch, 196. The case in the text, however, has ever since been re- garded as settled law in Connecticut.” — Editor 2d ed. Conn. See, however, Fuller v. Naugatuck, R. R. Co., 21 Conn. 574, and the cases cited post, GRISWOLD v. PENNIMAN, v. Archer, 28 Miss. 212; Langham v. Murray, 3 Ves. 469; Scawen v. Blunt, 7 Ves. 800; Nash v. Nash, 2 Madd. 133 (post, p. 395). Cases to the same effect might be multiplied indefinitely. As to the reduction of the wife's choses in action to possession by assign- ment or release, see Arrington v. Yar- brough (post), and notes. The wife’s chose in action may, of course, be reduced to possession by actual reception of payment with the intent to reduce to possession. See Dixon v, Dixon, 18 Ohio, 115; Latou- rette v. Williams, 1 Barb. 10; John- son v. Johnson, 33 Ala. 284. See notes to Standeford v. Devol (post, p. 40). As to the question of intent, see Blount v. Bestland (post, p. 392); Standeford v. Devol (post). As to reduction to possession of the wife’s choses in action by judgment or decree thereon, the rule seems to be correctly stated in the principal case of Schuyler v. Hoyle. A judgment or decree in the name of the husband alone, or in their joint names, merges the chose in action in the judgment or decree, which thenceforth is governed by the rules applicable to that kind of property; the judgment or decree, if in their joint names, survives, if the husband dies before the issuing of an execution or the delivery to him of the property adjudged to them thereby. See Moehring v. Mitchell, 1 Barb. Ch. 971; Latourette v. Williams, 1 Barb. 10; Henderson v. Guiot, 14 Miss. 209 ; Mason v. McNeill, 23 Ala. 211; Pike v. Collins, 33 Me. 43; Adams v. Laven- der, McClel. & Y. 41; Bond »v. Sim- mons, 8 Atk. 21; Woodyer v. Gres- ham, 1 Salk. 116; 1 Bright’s Hus. & Wife, 61, 67, and cases cited. ‘* As an award alone has not the effect of changing the property in chat- tels personal,’ it would seem that, unless the award is carried into effect by some act amounting to a reduction into pos- 387 session of the choses in action in ques- tion, the wife surviving will not be bound. However, in an early case,? it was decided otherwise, . . . because the award was a sort of judgment which, having ordered the 1,500J. to be paid to the husband, charged the prop- erty, and vested it in him.” ‘Under the protection which a Court of equity affords to the interests of married women, it will not permit agreements entered into between her, or herffriends acting for her, and her husband, pendente lite, to be obligatory upon her; so that any arrangement which, pending a suit, may be so made, by which it is agreed that he, upon cer- tain terms, shall have the residue of her property, will not, without the sanction of the Court, bind her; notwithstand- ing, therefore, such an agreement, if the title of the husband’s representa- tives rest solely upon it, his wife’s right by survivorship will take place.” 1 Bright's Hus. & Wife, 70, 71, citing Macauley v. Phillips, 4 Ves. 15. See also Strawbridge v. Funstone, 1 Watts & S.517; Fort v. Battle, 21 Miss. 133; Weston v. Stuart, 11 Me. 326. That the marital rights of the hus- band will not, in general, attach to the wife’s distributive share of the personal estate of a decedent till it is severed or segregated from the bulk of the es- tate of which it formed a part, by. decree of distribution, or in some way reduced to possession, it being previous thereto at most a mere chose in action, see Hayward v. Hayward, 20 Pick. 517 (ante, p. 870), a very well considered case; Mayfield v. Clifton, 3 Stew. 375 (post, p. 408); Short v. Moore, 10 Vt. 446; Holloway v. Conner, 3 B. Monr. 399; Lewis v. Price, 3 Rich. Eq. 172; Bennett v. Dillingham, 2 Dana, 437; Davis v. Rhame, 1 McCord, Ch. 191; Johnson v. Spaight, 14 Ala. 27; Welch v. Welch, 14 Ala. 83; Bibb v. McKinley, 9 Port. 636; Stewart v. Stewart, 31 Ala. 1 Hunter v. Rice, 15 East, 100; Thorpe v. Eyre, 1 A. & E. 926; 3 Nev. & M. 214. 2 Oglander v. Baston, 1 Vern. 896. i 388 216; Ross ». Wharton, 10 Yerg. 190; Probate Court v. Niles, 32 Vt. 778; Harper v. Archer, 16 Miss. 229, s. c. 28 Miss. 212; Leakey v. Maupin, 10 Mo. 368; Gillett v. Camp, 19 Mo. 404; Wheeler rv. Moore, 13 N. H. 478; Hill v. Hill, 1 Strobh. Eq. 1; McCauley v. Rodes, 7 B. Monr. 462; Chappel v. Causey, 11 Geo. 25; Hooper v. Howell, 50 Geo. 168; 1 Bish. on Mar. Wom. § 84. See also Harris v. Taylor, 3 Sneed (Tenn.), 536; Corley v. Corley, 22 Geo. 178; Knight v. Brawner, 14 Md. 1; Westervelt v. Gregg, 12 N.Y. 202. But see, contra, Cable v. Martin, 2 Miss. 564. See also Holbrook »v. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 567, where it was held that the interest of the husband in his wife’s distributive share not reduced to possession was subject to trustee pro- cess. But after decree of distribution (at least in the case of personal chattels), it seems that, in general, the marital rights of the husband attach to the property so severed. Parks v. Cush- man, 9 Vt. 320. See also Walden v. Chambers, 7 Ohio St. 80; Walker v. Walker, 25 Mo. 367, and the cases cited next above. See notes to Whit- aker v. Whitaker (ante, p. 345). In general, legacies (even of speci- fic chattels) are deemed choses in action, and do not vest in the husband until reduced to possession, at least not till the executor has assented to them. Bibb v. McKinley, 9 Port. 636; Machem v. Machem, 28 Ala. 874; Westervelt v. Gregg, 12 N. Y. 205; Marston v. Carter, 12 N. H. 159; Wells v. Tyler, 25 N. H. 340; Willis v. Roberts, 48 Me. 257; Dawson v. Dawson, 2 Strobh. Eq. 34; Curry », Fulkinson, 14 Ohio, 100; Howard v. Bryant, 9 Gray, 239; Wade v. Grimes, 8 Miss. 425. See also Hair v. Avery, 28 Ala. 273, and cases cited. But in the case of the bequest of a specific chattel, which has been assented to by the executor, the marital rights attach. Pitts v. Curtis, 4 Ala. 350. COVERTURE. See also Swanson ». Swanson, 2 Swan, 460; 1 Story’s Eq. Jur. §§ 540, 591. But see Pitts v. Curtis, criticised in Mason v. MeNeill, 23 Ala. 216. And in Sadler v. Bean, 9 Ark. 202, where the words of the will were “I will and bequeath to my daughter, Polly Bean, a negro girl named Rhoda,” &c., ‘* which are now in her possession,” it was held that the property vested at once in the husband. And where the wife was the sole dis- tributee, and the husband paid all the debts and took possession of the assets without administration, claiming them as his absolute property by virtue of his marital rights, beld that, although the legal title was not thereby vested in’ him, yet he acquired such an equitable interest in the property as a Court of Chancery would protect as against those who, after the death of the wife, sought distribution thereof as surviving next of kin of the intestate. Vanderveer v. Alston, 16 Ala. 494. See also Mar- dree v. Mardree, 9 Ired. 305. But some of the cases maintain that, even after a decree of distribution, the right of the husband, at least in the case of money, is only conditional; that no specific money passes by the decree; that at most it is a mere chose in action belonging to the wife till reduced to possession by the husband. See Short v. Moore, 10 Vt. 451; Foster v. Fifield, 20 Pick. 67, 70. See also Schuyler y. Hoyle, 5 Johns. Ch. 212 (ante, p. 857) ; Mason v. McNeill, 23 Ala. 217; notes to Whitaker ». Whitaker (ante, p. 345). So if a suit is necessary to separate the wife’s share, it is clearly a chose in action. Hall v, McLain, 11 Humph. 425; Ross v. Wharton, 10 Yerg. 190 (post). See also Mason v. McNeill, 23 Ala. 219. Some of the cases make a distinction between ante and post nuptial distribu- tive shares and legacies; and hold that the wife’s distributive share or legacy accruing during coverture vests abso- lutely in her husband; and that, in the event of his prior death, it does not sur- GRISWOLD Vv. PENNIMAN. vive to her. See Griswold ». Penni- man, 2 Conn. 564 (ante); Common- wealth v. Manley, 12 Pick. 175, and cases cited; Albee v. Carpenter, 12 Cush. 382. And in Goddard v. Johnson, 14 Pick. 352, followed by Hapgood v. Houghton, 22 Pick. 484, it was held that a husband may, without taking out letters of administration, sue in his own right after the death of his wife, for a legacy (a bequest of money to be paid in three years from and after tes- tator’s decease) accruing to the wife during coverture. Per curiam: ‘It is exceedingly clear that this was a vested legacy. We think the husband might have sued alone, had the wife been still living, and consequently that this action may be sustained. It is a well settled principle, that a chose in action accru- ing to husband and wife during covert- ure vests absolutely in the husband.” To the point that the wife’s post-nuptial choses in action vest absolutely in the husband, see also Greenleaf v. Hill, 31 Me. 562: Savage v. King, 17 Me. 301; Hancock Bank v. Joy, 41 Me. 568; Stimson v. White, 20 Wis. 563; Corn- wall v. Hoyt, 7 Conn. 420; Edwards v. Sheridan, 24 Conn. 168, and cases therein cited; Shuttlesworth v. Noyes, 8 Mass. 229; Stevens v. Beals, 10 Cush. 291; Russell v. Brooks, 7 Pick. 65; Early v. Sherwood, Dud. (Geo.) 7; Jones v. Warren, 4 Dana, 333; Ryder v. Hulse, 24 N, Y. 377. But the doctrine of Griswold v. Pen- niman and Commonwealth v. Manley is (on the authority of Wildman »v. Wildman, 9 Ves. 177) denied in Par- sons v. Parsons, 9 N. H. 321; Wheeler v. Moore, 13 N. H. 482; Wells v. Tyler, 25 N. H. 342; and in Coffin v. Morrill, 22 N. H. 355; and is opposed to Hayward v. Hayward, 20 Pick. 517 . (ante, p. 370), (a leading and well con- sidered case, which was approved in Willis v. Roberts, 48 Me. 260), and is probably opposed to the weight of rea- son and authority. See 1 Bish. Mar. 3889 Wom. §§ 92, 93, 94, and cases there cited; also, cases cited below. In Chappell v. Causey, 11 Geo. 30, which was a bill in the nature of a bill of interpleader to determine to whom a distributive share should be paid, and where the subject is well considered, the following language is used: ‘A distinction was once supposed to exist between choses in action accruing be- fore and during coverture; and while it was admitted that the rule” [as to survivorship to the wife] ‘was well settled as to rights of the former de- scription, it was claimed that the latter, situated as this is, vested absolutely in the husband. But this distinction can neither be supported upon principle nor by the adjudged cases. Mr. Clancy, in his treatise on Husband and Wife, 4, says: ‘The choses in action accru- ing to the wife during coverture, as well as those belonging to her at the time of the marriage, are the husband’s property only conditionally, that is, provided he should reduce them into possession in his lifetime; and if he do not, and he should die first, then she would take them by survivorship: and in support of this position, see Garforth v. Bradley, 2 Ves. Sen. 676; Elliot v. Collier, 1 Wilson, 618; Wild- man v. Wildman, 9 Ves. 175; Baker v. Hall, 12 Ves. 497; Richards v. Rich- ards, 2 Barn. & Adolph. 447; Nash v. Nash, 2 Madd. 183; 1 Dane’s Abr. 342, 844; Draper v. Jackson, 16 Mass. 480; Deane v. Richmond, 5 Pick. 468. It is well settled in England that no distinction exists as to the rights of survivorship by the wife, between those choses in action that accrue before and those that accrue during coverture ; and the same doctrine is now distinctly recognized in New York, Pennsylvania, Virginia, South Carolina, and most of the States of the Union. It has the sanction of Lords Harpwicke and TENTERDEN, Chief Justice MarsHaLL, Chancellor Kenr, and many of the most éminent jurists at home and 890 abroad.” See Schuyler v. Hoyle, 5 Johns. Ch. 196 (ante, p. 357) ; Boozer v. Addison, 2 Rich. Eq. 273; Revel v. Revel, 2 Dev. & Bat. 272; Short v. Moore, 10 Vt. 451; Bond v. Conway, 11 Md. 512; Wood v. Simmons, 20 Mo. 874; Fuller v. Naugatuck R. R. Co., 21 Conn. 574; Lasseter v. Turner, 1 Yerg. 414; Puryear v. Puryear, 12 Ala. 13; Miller v. Miller, 1 J. J. Marsh. 169; Richardson v. Daggett, 4 Vt. 336; Gaters v. Madeley, 6 M. & W. 427; Scarpellini v. Atcheson, 7 .Q. B. 875; Gallego v. Gallego, 2 Brock, 285; Wallace v. Talliaferro, 2 Call, 447; Lodge v. Hamilton, 2 8. & R. 491; Wintercast v. Smith, 4 Rawle, 177; Harleston v. Lynch, 1 Desaus. Eq. 244; Clifton v. Executors of Haig, 4 Desaus. Eq. 330. See also Needles v. Needles, 7 Ohio St. 432,.and cases therein cited; Roorback v. Lord, 4 Conn. 350. In Curry v. Fulkinson, 14 Ohio, 100, which was a bill to collect a legacy, the question is discussed by counsel and Court, and the rule laid down that, ‘“ choses in action belonging to the wife before marriage, or accruing to her during coverture, as the meritorious cause, not reduced to possession by the husband, survive to her after his death. If the wife die, such choses in action, not having been reduced to possession, subject to her debts dum sola, are gov- erned by the laws of administration and distribution .charged with such debts.” The distinction between the wife’s ante and post nuptial choses in action is well stated in 1 Bishop on Married Women, §§ 91, 92, thus: ‘‘ Now, when a husband undertakes to reduce to his possession his wife’s ante-nuptial chose in action, the suit is essentially hers, for hers is the thing in controversy ; still, as already seen, his name must be joined with hers as plaintiff. It is, therefore, a settled rule, both at law and in equity, that in a suit to recover such a chose in action, husband COVERTURE. and wife must join as plaintiffs. On the other hand, and for reasons already seen, if the chose in action is a post- nuptial one, the husband can elect whether to sue for it in his own name alone, or to join his wife with him as plaintiff in the action. Yet Courts of equity, for reasons of their own, and other Courts not of common law, will sometimes, and perhaps generally, re- quire the husband to join his wife’s name with his when he sues even for her post-nuptial chose in action. Here, therefore, is a substantial distinction running through all the books, between the wife’s post-nuptial and ante-nuptial choses in action. But this distinction should not be carried too far. If, for example, the husband dies without re- ducing to his possession his wife's ante- nuptial chose in action, this chose sur- vives to her, and does not go to his legal representatives. And itis precise- ly the same with her post-nuptial chose in action. His not attempting to change it during -his life shows his as- sent to the form in which it came to her.” The doctrine seems (irrespective of the question whether the wife was or was not the meritorious cause of action) to be correctly stated in the broad terms used by GarpIner, J., in Borst v. Spelman, 4 N. Y. 288: ‘* Where an obligation or contract is taken to the husband and wife, or to the wife alone, with the assent of the husband, the ac- tion survives to the wife, who is enti- tled to the proceeds, as against the heirs and personal representatives of the husband. This is the rule at law as well as in equity. (Com. Dig. tit. Baron & Feme; Draper v. Jackson, 16 Mass. 483 to 486). In these cases the form of the security implies a de- sign by the husband to benefit the wife, and the law will give effect to that in- tention when the interest of creditors is not affected.” See also 1 Bish. on Mar. Wom. §§ 93, and notes, 103 to "107, inclusive, and § 214; the Roman GRISWOLD v, PENNIMAN, Catholic Orphan Asylum v. Strain, 2 Bradf. 34; Poor v. Hazleton, 15 N. H. 564; Reed v. Blaisdell, 16 N. H. 201; Phelps v. Phelps, 20 Pick. 559; Daniels v. Richardson, 22 Pick. 569; Lodge v. Hamilton, 2 8. & R. 493; Pike v. Col- lins, 33 Me. 43; Johnson v. Lusk, 6 Cold. 118, 119; Brown ». Langford, 3 Bibb, 497; Hockaday v. Sallee, 26 Mo. 219; Bond v. Conway, 11 Md. 512; Boozer v. Addison, 2 Rich. Eq. 273 ; Coppin v. +2 P. Wms. 496; Fleet v. Perrins, L. R. 4 Q. B. 500, and the cases hereinbefore cited. As to whether the husband can sue in his own right, for his wife’s choses in action accruing during coverture and without taking out letters of adminis- tration in cases where he survives her, see Goddard v. Johnson and Hapgood v. Houghton (cited in this note, supra) ; also, Ryder v. Hulse, 24 N. Y. 377. In Curry v. Fulkinson, 14 Ohio, 100, the subject was ably discussed by coun- sel and Court. Rexp, J.: ‘‘ In Eng- land and some States of this Union, by force of statutes, the husband, as next of kin, is entitled both to administra- tion and the absolute right of such choses in action. Hence, when the hus- band is entitled in his own right to the unreduced choses of the wife, after her death, subject to her debts, coupled with the right to administer as next of kin, not being bound to account, but only charged personally for the debts of the wife dum sola to the extent of such choses, he is permitted to merge the character of administrator and pur- sue such chose in his owri right. This is the reason of the authorities cited to sustain this bill. But in this State the husband is not next of kin for inheri- tance. He may administer; but he must account not only to creditors of the wife, but to her heirs, under our statute of descent and distribution. Hence, in our State, having the right only to administer, and not the absolute right in the choses in action which survive to the wife, the husband is not permitted 391 in bis own right to pursue such choses, either in law or equity.” See Mayfield v. Clifton, 3 Stew. 350 (post, p. 408). It was insisted by counsel in Curry v. Fulkinson (supra), that the husband might sue on the post-nuptial chose of his wife as survivor. Goddard ». John- son, Hapgood v. Houghton (ante), and Jones v. Warren, 4 Dana, 333, were cited to sustain this position. In the last case the Court say: ‘‘ But the same authorities and very many others show that a surviving husband is entitled, as husband, to the undisposed of choses in action which accrued in right of his wife during the coverture. The prevailing and more consistent doctrine seems to be that in such cases the survivor will be entitled, as survivor. And therefore, to be consistent, the law should give the right of action to the survivor in his or ber own personal right and char- acter. And such appears clearly to have been understood to be the true doctrine by Baron Comyn, and by this Court in the cases in 3 Bibb, (499), and 3 Litt. (282), and 1 J. J. Marsh. (169) (supra.)” ‘ Wherefore, it is our opinion that the legal title to the obligation in this case survived to Thomas Jones (her husband); and that, therefore, he alone had a legal right to sue on it, in his own name and for his own benefit.” ‘‘ Perhaps the husband, even as administrator, might sue on it, either, first, because such a suit might show an election which he had a right to make; or, second, be- cause the adjunct, administrator, might be deemed merely descriptio persone. But it seems to us that, the right sur- viving, the remedy survived with it; and that no other person than Thomas Jones had a right to sue.” The general rule is believed to be that, where the husband is by law enti- tled to administer upon his wife's estate, and to retain the surplus without ac- count, he should sue for her assets only as her administrator. Dawson v. Daw- son, 2 Strobh. Eq. 34; Jenkins v. 892 Freyer, 4 Paige, Ch. 50; Willis v. Rob- erts, 48 Me. 257. See also Roorback v. Lord, 4 Conn. 347. It is quite clear that for ante-nuptial choses in action he must sue as her ad- ministrator. 1 Chitty’s Plead. 31, 32, and authorities cited. And the same rule, it is believed, should be applied to her post-nuptial choses in action; for if he sues in his own right, he must sue either as survi- vor, or because the said choses in action vest in him absolutely jure marito as his own property, or because he is ulti- mately entitled under the statutes con- cerning administration and distribu- tions; it has been seen, however, that by the weight of authority they do not ipso facto absolutely vest in him as husband, but only on condition of re- duction to possession during coverture, — at least this is true so far as its rela- tion to the wife’s survivorship is con- cerned, i.e. during the joint life of hus- band and wife. And it is believed that to allow him to take as survivor would be inconsistent with established princi- BLountT v. COVERTURE. ples, as in such case no reduction to possession during coverture would be necessary ; but on her death he would take after the same manner as a tenant by entirety; and taking by survivor would in many cases be inconsistent with the rights of distributees under the policy of different States. It is believed also that it is equally a violation of correct principles to al- low the husband to sue on his wife’s post-nuptial choses in action in his own right, on the principle of merger of his character as administrator with his in- dividual character, as stated in Curry v. Fulkinson. In such cases the right and title of the husband, as next of kin or distributee, to the unreduced choses in action of his wife is derived through administration; and to sue in his own right, without administering, would seem to be omitting one link of his chain of title. Perhaps, however, it may be thought that the weight of authority is adverse to these views. See 1 Bish. on Mar. Wom. §§ 180-182, and cases cited. BESTLAND. (5 Ves. 515. High Court of Chancery, July 22, 1800.) What amounts to Reduction: mere Intent to reduce insufficient: Possession neces- sary. —A legacy to a married woman is not sufficiently reduced into posses- sion by an appropriation by the executrix of a mortgage to the same amount, so as to prevent her survivorship upon her husband’s death. Election decreed between two claims under and against the will. Settlement directed to a mar- ried woman of a legacy claimed by her husband. An action does not now lie by a husband for a legacy in right of his wife. Saran Brewin by her will gave to Ann Simpson, wife of Thomas Simpson, the sum of £600, to be paid her by the execu- trix of the said will within twelve months after the decease of BLOUNT v. BESTLAND. 393 the testatrix ; and,she appointed her niece, Susannah Bestland, executrix. The testatrix died in 1790. Above a year after her death, Thomas Simpson died ; having by his will disposed of the legacy of £600 to his wife for life, and after her decease to his children, and given his wife another inconsiderable benefit. His widow, having two children by him, married William Blount. The bill was filed by Blount and his wife, claiming the legacy, against the executrix of Mrs. Brewin, the executor of Thomas Simpson, and the two infant children. The defence set up by the answer of the executrix, and also supported by her depositions, taken from the children, was, that she became entitled as executrix to £600, secured to the tes- tatrix, her executors, &c., upon a mortgage of the freehold estates of Wissendine, in the county of Rutland, belonging to the defendant’s mother ; and the defendant, conceiving herself liable to pay to Thomas Simpson the legacy of £600, a short time after the expiration of twelve months from the death of the testatrix had some conversation with Simpson relative to the said legacy ; and she intimated her willingness to pay him the legacy, but, not having the money ready, she told him it should be paid by the money due upon the said mortgage upon the estate at Wissendine ; and that she would call in that money for the pur- pose of such payment, if he wished it. He said he did not want it just then; and he would rather it should lie where it was, and he receive the interest till he wanted it ; to which the defendant agreed. In consequence she paid him 12/. upon the 20th of Oc- tober, 1791, and 127. upon the 5th of June, 1792; taking receipts from him of those dates, expressed thus: ‘ Received of Susannah Bestland, as executrix of Mrs. Sarah Brewin, the sum of 121., being for half a year’s interest for 6007. left to my wife by Mrs. Brewin’s will as charged upon the estate at Whitsendine in Rut- land.” This conversation was not acted upon further. The answer submitted the propriety of a settlement if the plaintiffs were entitled ; stating that no settlement had been made upon the plaintiff Ann Blount and her children upon her second marriage ; : and that her husband had been her servant. The Solicitor General [Sir William eae and Mr. Romilly, for the plaintiffs. 894 COVERTURE. The interest in this legacy survived to the wife upon the death of her first husband, having never been reduced into possession. The transaction that took place with the executrix, being only an agreement to appropriate that mortgage, was not sufficient to reduce it into possession. Bates v. Dandy! is exactly this case. The Attorney-General [Sir John Mitford], Mr. Hollist, and Mr. Stanley, for the defendants. It is very unfortunate if this sum is not to be considered so appropriated as to have vested in the first husband, who, conceiv- ing it his, made a disposition of it in favor of his wife and chil- dren, for whom no provision has been made on the second marriage. It is clear upon the two receipts that he accepted the mortgage as an appropriation to him of so much of the testator’s estate in satisfaction of that legacy. Bates v. Dandy was very different. In this case the legal estate was in this defendant; and, after the transaction between her and Mr. Simpson, he might have sued her without his wife. In the other case, that was im- possible, the wife being administratrix. The right of action there- fore did not survive in this case. Secondly, the plaintiff Ann Blount, if she is entitled, must elect,? and therefore must give up all benefit under the will of her former husband ; and, as this man has made no provision for her, some direction ought to be given for paying the money into Court. The Solicitor-General [Sir William Grant], in reply observed upon the second point, that no question of election was raised by the answer. Lorp CuancetLor [LoucHBorovcGH.] Could the first husband have brought a bill without making his wife a party? He could not bring an action for the legacy ;* though that would have done at one time.* All that has been done was nothing more than an executor admitting a legacy to be due, and that he has assets. ' 1 2 Atk. 207. : 2 As to election, see Wollen v. Tanner, 5 Ves. Jr. 218; Long v. Long, id. 445; Yate v. Moseley, id. 480; Ward v. Baugh, 4 id. 623; Wilson v. Lord John Town- shend, 2 id. 693; Butricke v. Broadhurst, 1 id. 171, note (a) (Sumner’s ed.); Blake v. Bunberry, id. 514, note (a), s. c. 4 Bro. C. C, 21. 3 See Schuyler v. Hoyle (ante). * See 2 Ves. Jr. 676; Mealis ». Mealis, in Chancery, Hil. Term, 1764, Mss., where an injunction was granted at the suit of a married woman to stay proceedings in the Ecclesiastical Court, in a suit instituted by her husband to obtain a legacy in her right, without having made a settlement. NASH v, NASH. 895 No Court of law would have entertained an action upon it; and, if the husband had sued here, the wife must have been a party. It is very unfortunate. The least thing would have done; if she had assigned. I agree this is an appropriation ; but it is an ap- propriation of that which is in effect a chose in action, and could .only have been obtained by suit to which the wife must have been a party. It is very proper that the money should be paid into Court. I shall direct Susannah Bestland, in whom the mortgage is now vested, to call in the money; and declare that the plaintiff, Ann Blount, is entitled to the same; and the interest due at the time of her marriage with the other plaintiff to be added to the prin- cipal; and that she is not entitled to any benefit under the will of Thomas Simpson, she electing to take against the will. Let the plaintiff, William Blount, lay a proposal before the master for a settlement. Tax all parties their costs: the interest of the sum due upon the mortgage to be applicable to the costs in the first place ; and, if not sufficient, the deficiency to be taken out of the principal. See next case and notes. Nase v. Nasa. (2 Madd. 133. Court of the Vice-Chancellor of England, June 7, 1817.) What is a Sufficient Reduction of the Wife's chose in action; Possession of Instrument evidencing it insufficient. — D. E., the father of C. N., after her marriage, drew a check in her favor upon his bankers, for 10,0000. The bankers gave her a promissory note for the 10,0002. 1,0002., part of the principal money due on the note, was paid to Wm. L. N., the husband of C. N.; and he also received the interest due on the note up to the time of his death. Held, that upon his death C. N. was entitled to the note as a chose in action which had survived to her. THE original bill stated that, in July, 1808, a marriage was had between William L. Nash and Catharine Evans: that no settle- ment was made on the marriage ; but on the 23d of November, 1813, David Evans, Esq., the father of Catharine, drew a check on his bankers, in favor of his daughter, for 10,0007. On that day she 896 COVERTURE. presented the check, and took from the bankers a promissory note, payable on demand, for 10,000/., which note she delivered to her husband: that the money remained in the hands of the bankers during the life of William Nash, except 1,0007. which he applied for to the bankers, and was paid by them, and for which he gave a receipt; and that he received the interest on the remaining 9,0002. during his life, and gave receipts for the same: that William L. Nash, by his will, 8th December, 1815, amongst other bequests, gave the plaintiff L. Nash (his mother) an annuity of 401. ; and appointed his wife, Catharine Nash, and two other per- sons, executors of his will: that he afterwards, on the 8th January, 1816, died, leaving the said Catharine Nash and the plaintiff Ann Nash surviving: that Catharine Nash alone proved the will, and obtained possession of the testator’s personal estate and effects, including the note for 10,000/., of which 9,0002. so remained unpaid. The prayer of the original bill was, that the 9,000/. due on the promissory note might be declared to form part of the tes- tator’s personal estate, and that an account might be taken of what was due to the plaintiff in respect of the annuity given by the testator’s will. The defendant by her answer insisted that the 9,000/. secured by the promissory note was a chose in action, and that, William L. Nash never having reduced the same into possession, it did not form part of his personal estate, but belonged to her; and that his property, independent of that money, was but sufficient for the payment of his debts. After the bill was filed, and the answer put in and replied to, Ann Nash, the plaintiff in the original bill, died, and letters of ad- ministration were granted to John Nash (the plaintiff), who filed a bill of revivor. Mr. Wingfield and Mr. Whitmarsh, for the plaintiff. The 9,0002. remaining due on the note must be considered as the property of the deceased husband. A wife cannot acquire prop- erty during the coverture; it belongs to her husband. The hus- band might alone have brought an action upon the note. In Lightbourne v. Holyday,! the plaintiff gave a feme covert 12Kq. Abr. 1. The following report of this case is from a Ms. note. Holloway v. Lightbourne, Easter Term, 12 Geo. II.1789. The bill in this case was brought, suggesting fraud and want of consideration in obtaining a promissory note from the plaintiff by the defendant’s wife, setting out the note to be in this form: “Received of Mrs. Lightbourne 800., for which I am to be accountable;” and prayed NASH v. NASH. 897 a promissory note, and, the husband dying before answer to a bill for discovery of the consideration, the wife administered to him ; and Lord Chancellor held that, as a wife can have no separate property, but whatever she gets during the coverture vests in the husband, the property of this note was wholly his, and that she had no interest in it but as representing her husband ; and that, therefore, by his death the suit was abated. So, in a case in Bun- bury,! it was held that a note given to a feme covert was upon her husband’s death to be considered as his assets. The husband in this case received part of the money due on the note, and all the interest from time to time, up to the time of his death, which must be considered as a reduction into possession of a note. Mr. Bell and Mr. West, for the defendant. The case in Bun- bury cannot be relied upon. He is a reporter of little authority.? that this note should be delivered up, and the defendants restrained by the injunction of the Court from any proceeding at law upon it; and, the defendants not answering in time, the common order of course for an injunction was made; and, before any answer came in, the defendant Lightbourne, the husband, died, on which it was moved that the injunction might be dissolved, the cause being abated; but, on the other hand, it was insisted that here is no abatement, for the note being given to the wife, and she surviving the husband, the interest in the note had vested in her, and would not go to the executor of the husband. But Lord Harpwicxe, Chancellor, having taken time to consider of it, declared this to be an abatement, and that the interest in this note by the death of the husband vested in his executor, and did not survive to the wife. It is not like the case of a bond or note given to a feme sole who after marries and survives her husband ; in such case ’tis certain, if the money be not received upon the bond or note, that it shall survive to the wife, and shall not go to the executor of the husband; and if, during the coverture ’tis put in suit, it can’t be by the husband alone (8 Lev. 403 ; 1 Eq. Cas. Abr. 64; 1 Vern. 898) ; but in such case, the property being in the wife, the husband is rather joined for conformity than from the nature of the cause of action. But where a bond or promissory note (which is much stronger than the present case, for here is no promise to pay to the wife) is given to a feme covert, it hath been held that the interest in such bond or note imme- diately vests in the husband, and that he may maintain an action upon it in his own name. So was Howell’s case, in-8 Lev. 403; (a) it was debt on bond to the wife. The husband sued alone, without naming the wife; defendant having craved oyer of the bond, demurred, and the plaintiff had judgment, which shows that the property of a bond or note generally which is given to a feme covert is vested in the husband. This cause, therefore, is now abated, and the injunction ought to be dissolved, but I will give the plaintiff a week’s time to revive. [See this subject considered in Hay- ward v. Hayward; Griswold v. Penniman, ante, pp. 870, 883, and notes.] 1 Hodges v. Beverly, Bunb. 188. 2 In confirmation of this opinion, see Marv. Leg. Bibl. p. 159; Bridg. Leg. Bibl. p. 42; The Reporters, p. 257; 5 Burr. 2658; 6 Wend. 578; 1 Roper, Husb. & Wife, 449. (a) It is this case which seems to have been alluded to by Lord Chief Justice Norvn, in Beaver v. Lane, 2 Mod. 217. 898 COVERTURE. It is very clear that the note for 500/. given in that case being intended for the separate use of the wife, she might have insisted upon having it so settled. The case cited from 2 Eq. Cas. Abr. is also from a book of no estimation.1 Subsequent cases clearly show that this chose in action survived to the wife. In an anonymous case in Atkins,? a bill was brought by hus- band and wife for a demand in right of the wife, and the husband died. Lord Harpwicke said: “It was in the nature of a chose in action, and survives to her, and the cause does not abate by the husband’s death. Although the husband obtains a judgment for a debt due to his wife, yet if he dies before execution the wife is entitled, and not the representative of the husband.” 8 So in Coppin v. + Lord Kine held that, “if a bond be given to husband and wife during coverture, on the husband’s dying first it survives to the wife, as all other joint choses in action do; though, it is true, the husband may disagree to the wife’s right to it, and bring the action on the bond in his own name only ; but, till such disagreement, the right to the bond is in both the husband and wife, and shall survive.” Inarecent case, Phillis- kirk against Pluckwell,> a question was made, whether husband and wife may sue on a promissory note made to the wife during coverture. Lord ELLENBOROUGH was of opinion they might; and says:® ‘In Co. Litt. 120,’ and in 1 Rol. Abr. Baron & Feme, H. pt. 6 & 7, a difference is taken between a thing that is not merely a chose in action and one that is; and therefore, in the case of a bond made to the wife, if the wife dieth, the husband shall not have it without taking administration, because that is merely in action. So here the note is made to the wife: and it imports consideration, unless the contrary be shown;” and Mr. Justice Dampier, who concurred with Lord ELLEensoroucs, cited “Day v. Pargrave,’ in which Luz, C. J., said, that, where a ! See Bridg. Leg. Bibl. 112 ; The Reporters, 8305; Marv. Leg. Bibl. 48, and author- ities cited. 2 3 Atk. 876. 8 Bond v. Simmons, 3 Atk. 20. 42P. Wms. 497. 5 3 Maule & Selw. 393. 5 3 Maule & Selw. 395. 1 The passage in Co. Litt. runs thus: ‘If a Jeme covert be seized of an advowson, and the church becometh void, and the wife dieth, the husband shall present to the advowson ; but otherwise it is of a bond made to the wife, because that it is merely in action.” 3 Maule & Selw. 367. NASH v, NASH. 899 bond is given to the wife during coverture, no action will lie upon it by the wife solely ; but they may have a joint action dur- ing their lives, or the husband may bring such action during the coverture in his own name; yet, if he does not, it survives to the wife. There the action was by the husband as administrator on an obligation to the wife during coverture; and it was resolved that it was well brought, for it would have survived to her.” This case, therefore, is in point to show that in the present case the chose in action survived to the wife. In Wildman v. Wildman,} it was held, that stock transferred into the name of a married woman, as next of kin of an intestate, upon the death of her hus- band, without having done any act with reference to it except + signing partial transfers by her, survived to her. These cases are opposed only by the case in Bunbury, and in 2 Eq. Cases Abridged, — cases of slight authority. The VicE-CHANCELLOR. It appears to me that this note given by the bankers to the wife must be considered as a chose in action which has survived to her. If, immediately after the check was given, the husband had died, the check did not give a legal right to sue the bankers ; and, if they refused payment, the father could alone have recovered against them. The note given by the bank- ers constituted a chose in action. It gave a right to recover; but it was merely a chose in action, and not like money or a chattel. The receipt by the husband of the 1,0002. and of the interest from time to time till his death, was not a reduction into posses- sion of the remaining 9,000/.; it did not alter the nature of the note ; it still remained a chose in action, a security for the remain- ing 9,0007. Day and Pargrave, cited by Mr. Justice Dampier in Philliskirk v. Pluckwell,? is expressly in point. The bond given in that case to the wife not having been reduced into possession in the husband’s lifetime, the judges held it survived to the wife; and being a specialty debt in that case and in this a sim- ple contract debt makes no difference. Wildman v. Wildman? in principle applies to this case. The stock transferred to the wife did not only give him a right, if he chose, to reduce it into possession, but, as he did not do so, it survived to the wife. In the case of Philliskirk & Wife v. Pluckwell,' the question arose, whether the husband and wife may sue on a promissory note 19 Ves. 174. 2 2 Maule & Selw. 396, 397. 3 9 Ves. 176. 4 2 Maule & Selw. 393. iil tt 400 COVERTURE. given to the wife during coverture. It was determined they might join in the action. If the property had been absolutely vested in the husband, there could be no reason for the wife joining in the action ; but she joined because by survivorship she would become entitled. The cases I have adverted to are modern authorities, and ap- pear to me decisive; but, before I finally decide, I will look into the cases cited from second Equity Cases, and from Bunbury, books certainly of no great authority.? The Vice-Chancellor the next day said he remained of the opinion he expressed. That a mere intent to reduce the wife's choses in action to possession, without some positive act of reduction to possession, will not avail to vest the marital rights and bar the wife’s survi- vorship, seems very clear. See also 1 Roper on Hus. & Wife, 208 ; Schouler’s Dom. Rel. 116; 1 Bish. on Mar. Wom. § 111; Daniels v. Richardson, 22 Pick. 570. Nor is a mere possession of the in- strument evidencing the chose in action a sufficient reduction. See Nash v. Nash (ante); Pickett v. Everett, 11 Mo. 568; Walker v. Walker, 25 Mo. 367; Daniels v. Richardson, 22 Pick. 570; Latourette v. Williams, 1 Barb. 10: “That reduction into possession, which made the chose absolutely, as well as potentially, the husband’s, was a reduction not of the thing, but of the title to it.” Tritt v. Colwell, 31 Penn. St. 233. See also Shuttleworth v. Greaves, 2 Jur. 957, s. c. 4 Myl. & C. 35; 8 L. J. nN. 8. ¢. 7. There was once supposed to be a distinction between negotiable instru- ments and other choses in action; and it was said that a gift of a promissory note to a feme covert vested it abso- lutely in her husband; and Nash ». Nash was subsequently doubted on that account. See Barlow v. Bishop, 1 East, 482; McNeilage v. Holloway, 1 B. & Ald. 218; 1 Roper on Hus. & Wife, 211, note (4). But this distinction is now exploded, and negotiable instruments stand on the same footing as other choses in action ; and the case of Nash v. Nash has been approved by subsequent cases. See Richards v. Richards, 2. B. & Ad. 447; Gaters v. Madeley, 6 M. & W. 423; Hart v. Stephens, 6 Q. B. 937; Scarpellini v. Atcheson, 7 Q. B. 864. See also notes to Hayward »v. Hayward, and Griswold v. Penniman, (ante). ‘ ? See authorities cited in notes [1, p. 398, and 2, p. 897] ante. STANDEFORD ¥. DEVOL. 401 STANDEFORD v. DEVOL. (21 Ind. 404. Supreme Court of Indiana. November Term, 1863.) Reduction to Possession of Wife’s choses in action; Intention to reduce neces- sary. — In 1848, A contracted with B, the wife of C, and D, the daughter of C, for the sale to them of certain land, for $1,000, one-half whereof was paid at the date of contract, and a title-bond executed by A, for the convey- ance of the land to D, and B and D executed their promissory note to A, at twelve months, for the other half of the purchase-money, which was paid at maturity, and then said bond was cancelled; and, under another arrangement, A conveyed said land to E, a son-in-law of B and C. The first payment on the land was made in part by the transfer of a note to A, which B held in her own right, C having nothing to do with the transfer, and all of the residue of the purchase-money was paid by B, with her own money, received from the estate of her grandfather. Said money was received by her after her mar- riage with C, but never came into his possession, and was never claimed by him by virtue of his marital rights or otherwise; said money did not come to her with any limitations to her separate use. B and C and their family to- gether occupied and used said land. Action to subject said land to payment of C’s debts. Held, tbat the money with which said land was purchased never became the property of C, the husband, and that the land, therefore, could not be subjected to the payment of C’s debts. Held, also, that, prior to the laws of this State enlarging the rights of married women, the chose in action of the wife, which came to her after the marriage, did not become the property of the husband ipso facto, but only when it bad been actually reduced to possession by him by such acts as evinced an intention to divest his wife’s right or title, and make it absolutely his own. This case is distin- guished from Miller v. Blackburn, 14 Ind. 62. ApPEAL from the Putnam Circuit Court. Worpen, J. This was an action by the appellees against the appellants, the object of which was to reach certain lands in the hands of Joseph Standeford, and apply the proceeds to the pay- ment of certain judgments held by the plaintiffs against John Standeford, on the ground that the money of said John had been invested in the purchase of said lands. Trial, verdict, and judg- ment for the plaintiffs. The following is the case made by the evidence: The plaintiffs are the judgment creditors of John Standeford, who is insolvent. About the year 1848, one Josiah Harding made a contract with Hannah Standeford, wife of said John, and Sarah, their daughter, who was then about eighteen years of age, for the sale to them of 26 402 COVERTURE. the land in question, at the price of $1,000, one half of which was paid down, and a title-bond executed for the conveyance of the land to said Sarah. Mrs. Standeford and Sarah executed their promissory note for the residue of the purchase-money, payable in twelve months. The residue of the purchase-money being after- wards paid, the title-bond was surrendered, and, by an arrange- ment of the parties, a conveyance was executed to one William L. Mahan, a son-in-law of Mr. and Mrs. Standeford. Such fur- ther conveyances were finally made as vested the title in Joseph Standeford, who is a son of Mr. and Mrs. Standeford. Joseph, it may be observed, is not in a position to hold the land free from the claims of the plaintiffs, if the money invested therein be deemed to have been the money of John Standeford, his father. The first payment on the land was made in part by the trans- fer of a promissory note to Harding, which Mrs. Standeford held in her own right. Her husband had nothing to do with the transfer. Except the note above mentioned, Mrs. Standeford paid for the land with her own money, which she received from the estate of her grandfather. This money was received by her long after her intermarriage with Standeford, and never went into his possession; nor did he ever receive or claim it by virtue of his marital rights, or otherwise. He never paid any thing on the land, nor had he any thing to do with the contract of pur- chase. The money thus received by Mrs. Standeford, and paid for the land, did not come to her with any kind of limitation to her separate use. Standeford and his family have had the use and occupation of the land since it was thus purchased. The above are believed to be all the material facts in the case, as condensed from the testimony of the witnesses. It is not a case of conflict of evidence ; and the question arises, whether, on the foregoing facts, the plaintiffs were entitled to recover. ‘Was the money thus invested in the land in legal contem- plation the money of the husband, in such sense as to enable his creditors to pursue it? The case must be decided upon the law as it stood before our recent statutes enlarging the rights of married women. Had the money in question been in the hands of Mrs. Standeford at the time of the marriage, the case would have been covered by what was said in the case of Miller v. Blackburn, 14 Ind. 62, in overruling the petition for rehearing. On page 82, the following language is employed: “The money STANDEFORD v. DEVOL. 4038 invested in the land, not being the separate property of the wife, became, in my opinion, the property of the husband by virtue of the marriage. It was not a mere chose in action, which, in order to make it the property of the husband, required a reduction to his actual possession. Money in the hands of a guardian is deemed, in law, to be in possession of the ward, and that posses- sion of the ward became the possession of her husband upon her marriage.” The case goes upon the theory that the money was in the possession of the wife (the possession of her guardian being her possession) at the time of the marriage. If we were right in assuming that the possession of the guardian was the possession of the ward, the doctrine stated is sustained by the authorities. Says Mr. Kent, 2 Com. (10th ed.) p. 185: “ As to personal property of the wife which she had in possession at the time of the marriage, in her own right, and not en autre droit, such as money, goods, and chattels, and movables, they vest im- mediately and absolutely in the husband, and he can dispose of them as he pleases; and on his death they go to his representa- tives, as being entirely his property.” But the case before us is an entirely different one. Here the claim due to Mrs. Stande- ford, before it was paid to her, was, at most, buta chose in action ; and the husband was not the owner until he had reduced it to his possession, which he never did. “+ Marriage is only a quali- fied gift to the husband of his wife’s choses in action, viz., that he reduce them into possession during its continuance,” &c. 1 Bright’s Hus. & Wife, 36; 1 Kent, Com. 122. Says Mr. Bright, p. 48: “A mere intention’ to reduce the wife’s choses in action into possession will be insufficient. The-acts to effect that pur- pose must be such as to change the property in them, or, in other words, must be something to divest the wife’s right, and to make that of the husband absolute.” Indeed, the husband may take possession of his wife’s choses in action without making them hisown. “If he take possession in the character of trus- tee, and not of husband, it is not such a possession as will bar the right of the wife if she survive him. The property must come under the actual control and possession of the husband quasi husband, or the wife will take as survivor, instead of the per- sonal representatives of the husband.” 2 Kent, Com. 127. In Hill on Trustees (8d Am. ed.), page 621, note, it is said: “‘ What will constitute actual reduction to possession is not sus- 404 COVERTURE. ‘ & ceptible of exact definition, but depends on intention. There must be some distinct act evincing a determination to take as husband.” These are elementary principles, and, applied to the case be- fore us, show that the money invested in the land by the wife was not the money of the husband. He not only never had the possession of the money, but he did no act whatever evincing an intention to claim it or make it his by virtue of his marital rights. On the contrary, he left it in the possession and entirely under the control and dominion of his wife, and suffered her to invest it as above stated, thereby showing that he did not intend to claim it or make it his own. Indeed, there is no ground to claim that the money ‘was that of the husband, unless it be upon the ground that the receipt of the money by the wife during the coverture made it ipso facto the money of the husband. But - there is this difference between things in action and in possession. It is undoubtedly true, as was held in the case of Miller v. Black- burn, supra, that money or other personalty in the possession of the wife, in her own right, at the time of the marriage, vests ab- solutely in the husband, without any further act on his part to make it such. But where there is a chose in action due to the wife at the time of the marriage, or accruing to her during the coverture, he, in order to make it his, must do some act evincing an intention to make it his own; in the language of the books, his acts must be such as to change the property and divest his wife’s right. But this doctrine does not rest upon the elementary books alone ; the adjudicated cases fully sustain the proposition that, in the case before us, there was no such reduction of the money to the possession of the husband as to make it his. Some of these cases will be adverted to. The case of Totten v. McManus, 5 Ind. 407, was a bill filed by a creditor of McManus to reach certain lands purchased by his wife after coverture, with means which she had before marriage, but which she reduced to cash after marriage. It was claimed that the money, the moment it came into the hands of the wife, became the property of the husband. It was held oth- erwise by the Court. This case is less satisfactory than it would have been had it appeared clearly whether the property which the wife thus turned into cash was limited to her separate use. The case goes on the theory that the property was the wife’s sep- arate property, and is, therefore, perhaps not strictly in point here. STANDEFORD v. DEVOL. 405 But in Miller v. Blackburn, supra, it was said by Prrxiys, J., in speaking of the case of Totten v. McManus: “ There the hus- band did not reduce the property of the wife to possession. He permitted her to retain and vest it in real estate in her own name. When that was done, it was placed beyond his reach, without the aid of a Court of Chancery. It remained the wife’s property unreduced.” In the case of Gochenaur’s Estate, 23 Penn. St. 460, the Court, after quoting the passage from Kent to the effect that the property must come under the control and possession of the husband as husband, proceeds as follows: ‘“« This distinction has been fully adopted in Pennsylvania, and a series of well considered cases, carrying out the principle to its logical result, has established that reduction into possession, so as to work a change of ownership, is a question of intention to be inquired of upon all the circumstances. Conversion is not re- duction into possession, but only evidence of it; and therefore conversion may be explained by other evidence, negativing the intention to reduce to possession in such a manner as to transfer the title. According to these cases, marriage is treated as only a conditional gift of his wife’s choses in action, or, to speak more accurately, a gift to the husband of her power to dispose of them to himself or any one else, by force of the dominion to which he has succeeded as the representative of her person; and, because the gift is conditional, he has a right to reject it by refusing to perform the condition. The law does not cast it upon him be- ‘yond his power of resistance; for every gift requires the assent of the donee, and hence clear proof that the husband received’ the wife’s money as a loan, or a disclaimer of intention to make it his own property, proved by his admissions, will preserve her right of survivorship.” The case of Timbers v. Katz, 6 Watts & Serg. 290, was much like the present in many of its features. There a married woman had a sum of money due to heron a bond. The money was paid to her by the obligor, and, upon payment, she and her husband executed a receipt to the obligor for the payment. She afterwards invested the money in land in the name of her daughter. It was held, Gisson, C. J., delivering the opinion of the Court, that the transaction was not only not fraudulent, but that the money was not the money of the hus- band, it not having been reduced to his possession ; and that the creditors of the husband could not pursue it into the land. This 406 COVERTURE. is a very well considered case, in which the law is clearly stated, and is strictly in point with the one before us. We have only to observe, further, that there is no ground whatever on which to claim that the note transferred by Mrs. Standeford, in part payment of the land, had been made the property of her husband by any act of his whatever. We are of opinion that, on the case made by the evidence, the plaintiffs were not entitled to recover; and hence that a motion for a new trial, which was made, should have prevailed. Per curiam. The judgment below is reversed with costs, and the cause remanded. MeDonald & Porter, and Williamson & Daggy, for the appellants. McDonald & Roache and John Hanna, for the appellees. Reception of the money accruing on the wife’s chose in action, when received by the husband as husband, and with the intent to reduce, whether by him in person (see Johnson v. Johnson, 33 Ala. 284; Latourette v. Williams, 1 Barb. 9; Dixun ». Dixon, 18 Ohio, 115) or by his agent or attorney for his use, is a reduction. See Schuyler v. Hoyle, 5 John. Ch. 207; Huntley v. Griffith, Gouldsb. 159, s. c. Moore, 452; Turton v. Turton, 6 Md. 375; Hill v. Royce, 17 Vt. 190. So, when the whole of the amount of the chose is not received, but only a ‘part, it is a reduction pro tanto only. Harper v. Archer, 28 Miss. 212; Nash v. Nash, 2 Madd. 133 (ante, p. 395). See also Stanwood v. Stanwood, 17 Mass. 57. As where he receives dividends on stocks: Burr v. Sherwood, 3 Bradf. 85; or interest on a promissory note or other security payable to the wife: Nash v. Nash, 2 Madd. 133; Blount v. Bestland, 5 Ves. 515; Hart v. Stephens, 6 Q. B. 937. See also Howman v. Corrie, 2 Vern. 190. And so personal property received by the wife on her chose in action was held in Chase v. Palmer, 25 Me. 341, to become, at least as against creditors, the property of her husband, her pos- session being considered his possession. In this case, where the husband had purchased an estate encumbered by a mortgage, and afterwards mortgaged the same to another; and subsequently the wife, with the consent of her hus- band, received money belonging to her . as her distributive share of an estate to which she was an heir, and delivered the same herself to a friend to be by him appropriated to procure the assign- ment of the first mortgage to himself, to be held in trust for her benefit, and the money was so appropriated and the mortgage assigned, — it was held ona bill filed by the last mortgagee, whose debt remained unpaid, against the hus- band and wife and the assignee, that the first mortgage was thereby dis- charged. To the point that, in general, the pos- session of property by the wife is the pos- session of the husband, see Washburn v. Hale, 10 Pick. 429; Jordan v. Jor- dan, 52 Me. 320; Carleton v. Lovejoy, 54 Me. 445; Standeford v. Devol, 21 Ind. 406; Pope v. Tucker, 23 Geo. 484; Bell v. Bell, 87 Ala. 586; Holton v. Whitney, 28 Vt. 448; Martin vo. Poague, 4 B. Mon. 524. That, in general, the possession of personal property by the wife is the possession of the husband may per- haps be conceded as to personal prop- erty not received by her in reduction of her choses in action; but when the doctrine is applied to money or prop- erty received by the wife, or even by STANDEFORD the husband, on her choses in action, it must be taken with some limitations, it being qualified by the question of in- tention to reduce or not, considered in the principal case. The case of Chase v. Palmer (supra) seems directly in conflict with the principle of the case of Standeford v. Devol, 21 Ind. 404 (ante), and the cases similar to it in principle; and seems to be opposed by the weight of modern authority. In the leading and well considered case of Barron v. Barron, 24 Vt. 375, which was a bill in aid of an execution levied upon land purchased in the name of a trustee with the proceeds of the wife’s distributive share of her father’s estate, the prive being in part paid by the administrator personally, and in part by money delivered by the admin- istrator to the husband for that express purpose, under a previous arrangement for the purchase of the land, it was held that the mere receiving by the hus- band of the property of the wife will not be such a reducing of it to his pos- session as will affect the wife’s right of survivorship or equity to a settlement, unless it be received by the husband solely in the exercise of his marital rights and for the purpose of its ap- propriation to his own use. In support of this principle, besides the principal case of Standeford v. Devol, see also Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556; Machem v. Machem, 28 Ala. 374; Lockhart v. Cameron, 29 Ala. 355; Vreeland v. Vreeland, 16 N. J. Eq. 512; Siter’s case, 4 Rawle, 476; Timbers v. Katz, 6 W. & S. 290; Hind’s Estate, 5 Whart. 138; Gray’s Estate, 1 Penn. St. 829; Woelper’s Appeal, 2 Penn. St. 71; Gochenaur’s Estate, 23 Penn. St. 460; Ireland v. Webber, 27 Ind. 259, and the author- ities in said cases cited. See also cases cited in notes to Mayfield v. Clifton (post, p. 408) ; Hallv. Young, 37 N. H. 134; Caswell v. Hill, 47 N. H. 410. In New Hampshire it is held that v. DEVOL. 40T payment to the guardian of an insane husband is not a reduction to posses- sion, ‘‘ the election being in its nature one personal to the husband.” See Andover v. Merrimack County, 37 N. H. 444, and cases there cited. But see In re Jenkins, 5 Russ. 183. Lord Lynpuurst, Chancellor: ‘‘ The mode in which this stock has been dealt with amounts to a reduction into pos- session by the husband. Payment by the trustee to the lunatic, or to the com- mittee, would have been a reduction into possession; payment into Court to the credit of the lunacy is equally a reduction into possession for the lunatic, and for the lunatic only. The Lord Chancellor, acting for the lunatic, has taken possession of the fund for the lunatic’s benefit, has exercised domin- ion and control over it, and has ad- ministered it on behalf of the lunatic.” The reduction to possession by the husband of his wife’s choses in action is, in all cases, prima facie evidence of conversion to his use, because it is ac- companied in a vast majority of cases with that intent; but the presumption of intent may be repelled by disproof of the fact in the particular instance. Hind’s Estate, 5 Whart. 138. This principle may perhaps reconcile an apparent discrepancy in the cases on this subject. So it is held that ‘* conversion is not a reduction into possession, but only evidence of it; and therefore conver- sion may be explained by other evi- dence negativing the intention to re- duce into possession in such a manner as to transfer the title.” Gochenaur’s Estate, 23 Penn. St. 463. See also Gray’s Estate, 1 Penn. St. 327; Bowie v. Stonestreet, 6 Md. 418; Frierson v. Frierson, 21 Ala. 555, as to what is sufficient evidence of dis- claimer of conversion to his own use. Expressions of regret at having used the money do not alter the case. Nolen’s Appeal, 23 Penn. St. 37. So where choses in action are re- ceived and reduced to possession with- 408 out accompanying promises, and in the absence of any ante-nuptial contract, this does not constitute a valuable con- sideration so as to sustain a subsequent settlement upon the wife. Lyne v. Bank of Kentucky, 5 J. J. Marsh. 545. See also Miller v. Blackburn, 14 Ind. 62; Wylie v. Basil, 4 Md. Ch. Dec. 327; Phillips v. Frye, 14 Allen, 36; COVERTURE. wife an equivalent for her property ex- ists at the time of its conversion to his use, she will ordinarily, in some form or tribunal, be allowed a compensation therefor. See Bowie v. Stonestreet, 6 Md. 418; Gochenaur’s Estate, 23 Penn, St. 460; Hind’s Estate, 5 Whart. 138, and the cases therein cited. See also Livingston v. Livingston, 2 Johns. Ch. Frierson v. Frierson, 21 Ala, 555. 537, and the cases above cited. But where an agreement to give the MAYFIELD v. CLIFTON. (3 Stewart, 375. Supreme Court of Alabama, January, 1831.) Distributive Share must be reduced to Possession during Coverture.— To en- title a husband to the distributive share belonging to his wife, he must have reduced it into possession during coverture. The Possession of the Husband, to amount to Reduction, must be in his own right. — And such possession must be a possession as husband; a possession as ad- ministrator in right of his wife is insufficient. Tuts was a writ of error sued out by Thomas Mayfield, guar- dian of Nancy Murphy, to reverse the decision of the judge of the County Court of Madison County, made at June Term, 1829, on the hearing of a petition filed by Mayfield in that Court against Thomas Clifton. Mayfield, in his petition, represented that Thomas Murphy, of Madison County, died in 1815, possessed of negroes and other personal property; that his estate was unem- barrassed and free of debt; that he left his widow, Frances J. Murphy, and two infant children; Nancy, of whom he, the peti- tioner, was guardian, and John, of whom Clifton was guardian ; that the widow was appointed administratrix of the estate, by the County Court of Madison, and shortly afterwards intermarried with Clifton, and that she died in 1827. Whereupon, he prayed a legal distribution of the estate. The cause was submitted to the decision of the judge of the County Court, under an agreed statement of facts, which was in the following words: ‘* We agree that the property referred to belonged to Thomas Murphy, who MAYFIELD v. CLIFTON. 409 died at the time stated in the petition, leaving his widow, Frances J. Murphy, and two children named in the petition; that the said widow administered upon the estate of said Murphy, and, after+ obtaining the grant of administration, intermarried with Thomas Clifton; that the property was in possession of the said Frances from the death of the said Murphy till her second mar- riage, and from that event, in the possession of herself and the said Clifton till her death, which occurred at the time mentioned in the petition, and that no distribution of said property was ever made between the said Frances in her lifetime and the children of Murphy.” Upon this statement of the facts, the County Court decreed that the property should be divided between the children of Murphy and Thomas Clifton, it being the opinion of the Court that Clifton was entitled to the distributive share of his deceased wife, although there had been no distribution made in the lifetime of the wife. Mayfield prosecuted his writ of error to reverse this -decree in the County Court. Hopkins, for the plaintiff in error. It is a well settled principle of law, that, unless the husband reduce the personal property of the wife into possession during coverture, he can acquire no right to it. I understand the Court below to have gone on the ground that the husband here had possession; but his possession was as administrator. As the estate was never divided, if the doctrine to be maintained in support of the decree be correct, then he held possession of the whole estate in his own right. A change of the character of possession could only take place by a division, other- wise he holds the whole as administrator, and such division could only be made by an order of Court; he could not divide for him- self. If the doctrine be correct, the County Court has nothing to do but to distribute to the representatives. And, suppose the property had remained thus until the children had become of age, how could application for distribution be made but by him- self and wife? it could be made in no other way. No such application has been made, and, if it had been, it has not been decided on. In all personal property and choses in action of the wife, the husband acquires no rights until reduced into possession during coverture. That he has never done here, and the right must now be denied him. He could claim it only in right of and jointly with his wife; he had his petition or action in her name and right; but the action of husband and wife is now gone, and 410 COVERTURE. he never can claim in his own.! In Taliaferro’s case, Judge Roane referred to a statute of Virginia, but shows from Blackstone that the wife’s property must be reduced into possession quasi hus- band. The property of the wife must be administered upon, and all administrators must distribute for the benefit of creditors and legatees ; but here the husband has no right, under our statute, to the administration of the property in question; that right died with her? McClung, for defendant in error. All the English statutes read do not alter the common law so that it applies here. The statute of 29 Charles II. chap. 2, called the statute of dis- tribution, was partly remedial, and did not change the common law. It was intended to give the husband the means of getting possession ; but it is immaterial how he gets possession, if it be not tortiously. That possession we have now, and we are not seeking a remedy; we have the property, and we want no remedy. But the opposite party do, to dispossess us.2 In Whitaker v. Whit- aker,* the common-law principle is laid down. The New York statute is similar to that of 29 Charles, and the principle de- cided is that it is immaterial how he gets possession, if it be not obtained tortiously. A case in 2 Connecticut Reports ® sus- tains the same doctrine. It is, then, immaterial whether distribu- tion be made or not; he has a chose in action in possession. If distribution had been made,.it would have been of a third of the property to him, in right of his wife. It is not the same as if she had been entitled to a devise. The law devises this to her, and her assent was not necessary; and the possession of herself and husband conjointly made it complete.6 The property has all along been in possession of Clifton, of which he was by law entitled to a third; that third is now in his possession; he has only to retain. Hopkins, in conclusion. It is very true that Clifton is in pos- session of the whole estate, but his possession is undefined ; it is true the law gives the wife a third, but it does not identify what particular slaves she shall have; the County Court must do that. 1 2 Call, 889-98. 2 1 Black. Com. 880, 899; Clancy, Rights of Mar. Wom. 11, 12; 4 Bac. Abr. 446 : Toll. Ex. 220. 3 Clancy on Mar. Wom. 111. 4 6 John. 112-19, 5 Page 564. 6 2P. Wms. 187-189; 2 Com. Dig. Baron & Feme, E. 8; Coke, Litt. 851 a. MAYFIELD ¥v. CLIFTON. 411 In the case cited from 6 Johnson, the right was sustained on the statute alone; and the case from Connecticut went upon a dis- tinction in the English books quite different from ours. There the husband can recover property accruing to his wife during coverture, in his own name, without joining his wife; a distinc- tion which has not been recognized in Virginia, where he must join his wife as here ; and, as he cannot now do that, his right is gone. When the wife dies, her property is to be administered in the same manner as that of other women. Clifton has no right to the administration of her property, as administratrix of a former husband ; and it must be distributed as the property of other persons to her children. By Lipscoms, C. J. If Clifton had died, his wife living, would her share of her first husband’s property, under the circumstances stated, have survived to her, or would it have gone to the per- sonal representatives of her last husband? I have stated the proposition in this way, for the purpose of testing the character of the possession held by the defendant, of the property in which his wife had an interest to a certain extent, being undivided, and not separated from the rights of her children. I believe the case of Johnson, Administrator of Ramsey v. Wren,! would furnish quite a satisfactory answer. In that case, Ramsey had intermar- ried with the wife of the defendant, and she, at the time of the marriage, was the legal owner of the slaves sued for; but she was not in possession. She had hired them for a term of years to her brother, with whom she lived; and Ramsey was the overseer of her brother, and had charge of the slaves as overseer. He died. shortly after his marriage, and before the term for which the slaves had been hired had expired, without having exercised any other control than that of overseer over them; the same station he occupied before and at the time of his marriage. This Court, on the authority of Wallace et ux. v. Taliaferro et ux.,? and several other cases equally in point, after much deliberation, ruled that Ramsey had never had the possession of the slaves as husband, but, up to the time of his death, his possession had been as overseer, and not as owner; and that at his death the right of his wife had survived to her, and that it did not go to his per- sonal representatives. The case of Wallace et ux. v. Taliaferro et ux., reported in Call, was decisive. The husband, in conjunc- 1 8 Stew. 172. 2 2 Call, 447. 412 COVERTURE. tion with his executor, had held possession of the personal prop- erty bequeathed to his wife, and it was ruled that his possession was as executor, and not as husband. The case of Baker v. Hall! is as strong. Hall, being an executor and trustee of the will of Gregory Wright, married Elizabeth Baker, one of the residuary legatees, and had possession of her personal property, and dis- posed of some of it, and died, leaving his wife. The question was, whether his possession was such as would transmit his wife’s property at his death to his personal representative, or did the property remain in action and survive to the wife? The Master of the Rolls said that the husband must be considered as having entered into possession a8 executor and trustee, and not as hus-. band. Both these cases conclusively sustain the position, that the possession must be clearly and unequivocally as husband, and not in any other right. And they present so striking an anal- ogy in all their features to the case under consideration, that we are brought irresistibly to the conclusion that, whatever kind of possession Clifton had, it was as administrator in right of his wife, and not as husband and owner; and, had he died, his wife living, there could have been no doubt that the right to her share of her first husband’s property would have survived to her, and not have gone to the personal representatives of her last husband. Our statute of distribution had given her one third of her de- ceased husband’s property, but it had not designated the par- ticular property comprising that one third; and, until it had been set apart to her as a distributee, her share as well as the shares of her two children were in action, and not in possession. Clancy, in his excellent treatise on the rights of married women,? when discussing the rights of the wife as survivor, lays down the rule to be thus: that “ whenever the husband may bring suit either jointly or in his own name, at his election, the action would sur- vive to the wife. But, if he is compelled to sue in his own name separately, the action goes to his personal representative.” And the case is put, by the same author, of a suit having been brought in trover by husband and wife jointly, for a chattel lost by the wife dum sola, and converted after coverture. After verdict, on a motion in arrest of judgment, on the ground that the suit should have been in the name of the husband alone, the judges were equally divided. But, in a subsequent case, the Court were 1 12 Ves, 497. 2 Pages 8 and 9. MAYFIELD v. CLIFTON. 413 unanimous that the suit might be brought either in their joint names or in the name of the husband alone. All the right that Clifton could exercise over the property of the estate of Murphy was exerted as administraton in right of his wife, and his posses- sion of her individual share was not as husband, but as admin- istrator. If it had become necessary to sue for any of it in consequence of its having been lost, he could not have sustained the action in his own name; but he would have been compelled to have brought the suit in the joint names of himself and wife. It is contended, in support of the order of the judge of the County Court, that although the husband had never reduced his wife’s share of the estate into his possession quasi husband, yet that he is entitled to sue for it as her representative, by the rule of the common law. This is not believed to be the correct rule. In the early period of English history, little regard was paid to chattel interests, and it was a long time before the personal prop- erty of an intestate became the subject of legislation. It was not considered of much value, the great source of revenue and wealth in those times growing out of those feudal tenures, the little per- sonal property that a man died possessed of, if he made no dis- position of it by will, went either to his lord paramount or to the church, to be disposed of for the good of his soul in pious purposes. So long as a blind submission and confidence prevailed as to the power of the clergy in this life, and in the efficacy of their prayers in redeeming the souls of the departed, no serious objection was made to this mode of disposing of the personal property. Indeed, it would have had but little effect, and would have been looked on in those times as heinous impiety in the surviving relations to attempt to divert the personal property of the deceased to any other purpose. The separation of the chattel from the possession of the owner was then, too, a case of very rare occurrence. But, as commerce increased, personal property became an object of much greater importance ; it then composed in many instances the mass of very large fortunes. The public mind had somewhat shaken off the influence of religious superstition. The statute of 31 Edward III. was the first step in a system of legislation that finally resulted in their statute of distribution of 29 Charles IT., securing to the relations of an intestate the enjoyment of the personal property. We have no authority for believing that, prior to that statute, any exception was made by the canons of the 414 COVERTURE. church, or by the rules of the common law, in favor of the hus- band who had not reduced his wife’s personal property into possession during coverture. It must, however, be admitted, that elementary authors have not treated the subject with very minute care. But whoever held the administration, whether he was the lord paramount or the prebendary of the church, held the personal property, after the administration, to his own use. The language of Mr. Clancy is, ‘that since the statute of 31 Edward III., chapter 11, by which it is enacted, ‘ that, in case where a man dieth intestate, the ordinaries shall depute the next. and most lawful friends of the deceased person intestate to ad- minister his goods;’ it has been held that administration of the wife’s goods belongs of right to the husband ; and as, by the stat- ute of distributions, it is provided that nothing contained in it shall be construed to extend to estates of femes covert that shall die intestate, but that their husbands may demand and have ad- ministration of the rights and credits and other personal estates, and recover and enjoy the same, as they might have done by law before the making of this act, — it follows that the husband is now entitled, for his own benefit, to the chattels real of his deceased wife, and to all things in action, trust, and every other personal property, whether actually vested in him and reduced into pos- session, or contingent, or recoverable only by action or suit.” From this quotation, it is very clear that the learned author con- sidered the right as given by the statute of Edward III., and confirmed by the statute of distribution ; if it had been otherwise, he would not have given the enactment of the first statute, as the period of time when this rule first prevailed, that the husband should succeed to the choses and chattels in action of his deceased wife. Before the statute of distribution, as I have before re- marked, all the personal property of the intestate vested in the person to whom administration was granted, and the statute of the 31 of Edward III. had previously directed to whom the ordinaries should grant the administration. The exception in favor of the husband in the distribution of his deceased wife’s property not reduced to actual possession relates to the previous statute, and not to the common law. Many of the profession have, I doubt not, formed an erroneous opinion of the origin of the husband’s right, by not attending sufficiently to the meaning of the expression, ‘‘as he might by law have done,” used as the MAYFIELD ¥. CLIFTON. 415 exception to the statute of distribution. If this exception had not been made, the wife’s personal property in action, at her death, would have been distributed to her relatives, and would ‘have defeated the construction that the Courts had given the statute of Edward III. With due deference to the great learning of Judge Spencer, it seems to me, that, in the case in 6 Johnson he did not attend to the true origin of the husband’s right to succeed, on the death of his wife, to her personal property in action ; if he had done so, he never could have ascribed to it a common-law origin. He has fallen the more readily into this error, from the circumstance of the statute of the 29 Charles IT. being in force in New York; none of the English statutes are in force in this State, and our own statute of distribution essentially differs from theirs. If it was therefore admitted, that, under our own statute, the husband would be entitled to the ad- ministration, it would not, as in England, confer on him a right to the property, but it would be distributed to the nearest kin in equal degrees. If the husband has incurred and paid debts contracted by his wife dum sola, it is his misfortune that he did not, whilst it was in his power, reduce her personal property into possession. I am not prepared to say, that, in such a case, he would be wholly remediless. It is possible that he could find relief by resorting to a Court of Chancery. I incline to the opinion that chancery would charge the property of the wife not in possession during covert- ure to the extent of her debts dum. sola paid by her husband during coverture, if there was a deficiency of property in posses- sion to reimburse the husband. We are not, however, called on to decide this question. We are of opinion that the possession of Clifton, the defendant in this case, ‘was as administrator, and that he is not entitled to the share that his deceased wife would have received if the distribution had been made during her life. The order and judgment of the County Court must therefore be reversed, and the cause remanded. Decree reversed and remanded. The point that the possession of the Thus a possession as agent or trus- husband, to amount to a reduction of tee of the wife is insufficient. Bell, the wife’s chose in action, must be in Hus. & Wife, 57, 58; Johnson ». his own right, and not in a representa- Wren, 3 Stew. 172; Baker v. Hall, 12 tive capacity, seems well settled. Ves. 497; Wall v. Tomlinson, 16 Ves. 416 413; Walden v. Chambers, 7 Obio St. 30; State v. Reigart, 1 Gill, 1; Estate of Hinds, 5 Whart. 138; Resor v. Resor, 9 Ind. 347. So of possession as administrator or executor. Ross v. Wharton, 10 Yerg. 190; Wallace »v. Taliaferro, 2 Call, 447; Baker v. Hall (supra); Elms »v. Huptas, 3 Desaus. Eq. 155; Walker v. Walker, 25 Mo. 367; Kintzinger’s Estate, 2 Ashm. 455; Gochenaur’s Estate, 23 Penn. St. 460 ; Price v. Sessions, 3 How. (U. 8.) 624; Paige v. Sessions, 4 How. (U. 8S.) 122; Johnson v. Brady, 24 Geo. 186; Craw- ford v. Brady, 35 Geo. 192. See, however, Ellis v. Baldwin, 1 W. & S. 253. COVERTURE. But a reduction will be effected by ceasing to hold in a representative character, and holding as husband. Mardree v. Mardree, 9 Ired. 295. See also Ellis v. Baldwin, 1 W. & S. 253. As where the husband, after final set- tlement with the Court as executor of the wife’s ancestor, and after an order of distribution of the assets in his hands (a part of which was coming as a legacy to the wife), retained the wife’ 3 money in his hands, this was held to be such a reduction as to vest the property absolutely in the husband. Walden v. Chambers, 7 Ohio St. 30; Walker v. Walker, 25 Mo. 367. Howarp v. Bryant. (9 Gray, 239. Supreme Judicial Court of Massachusetts, October Term, 1857.) Chose in action Reduced to Possession by receiving something else than that due by its Terms. — A legacy to a woman before marriage is reduced to posses-~ sion by her husband by receiving a quitclaim deed from the testator’s residu- ary devisee, upon condition that he should pay all légacies which such devisee was bound to pay, of which this was one. ACTION OF conTRACT to recover a legacy given to the plaintiff, when sole, by her fathev’s will, in these terms: ‘“‘I give to my daughter, Sarah W. Bryant, one hundred and fifty dollars, sev- enty-five dollars to be paid to her by my son, Ebenezer Bryant, when he arrives at the age of twenty-two years, and seventy-five dollars more at the decease of my said wife.” The defendant was named in the will as principal devisee and residuary legatee, subject to a life-estate in the testator’s widow, who died before this suit was brought. The plaintiff married John Howard in 1808. The defendant arrived at the age of twenty-two in 1809, and, in 1818, conveyed all the estate so de- vised and bequeathed to him, to John Howard, by quitclaim deed, in the usual form, and containing, after the description of the premises, these words: ‘* And it is considered that the said HOWARD ¥v. BRYANT, 417 John Howard is to pay all the legacies which I am bound to pay by my father’s will.” Howard died intestate in 1824, and the plaintiff was appointed administratrix of his estate, and de- manded payment of the legacy before bringing this action. The parties submitted the above case to the judgment of the Court. A. V. Lynde, for the plaintiff, cited Legg v. Legg, 8 Mass. 99 ; Hayward v. Hayward, 20 Pick. 526, 5380; Daniels v. Richardson, 22 Pick. 570; 1 Dane, Abr. 342-344; Brotherow v. Hood, Comyn, 725; 1 Bright on Hus. & Wife, 87. J. P. Converse, for the defendant, cited Commonwealth v. Manley, 12 Pick. 173; Tuttle v. Fowler, 22 Conn. 58; Bates v. Dandy, 2 Atk. 207; Reese v. Keith, 11 Sim. 388; Doswell v. Earle, 12 Ves. 473; Bosvil v. Brander, 1 P. Wms. 458; Clancy on Hus. & Wife (Amer. ed.), 138, 189. Mercatr, J. The legacy given to the plaintiff by her father did not, on her marriage, vest absolutely in her husband. It was a chose in action which survived to her on his death, unless he had reduced it to possession, or released it, or had made a valid assignment of it, or had, in some other way, legally barred her right to it. And any lawful exercise of an act of ownership, by a husband, over his wife’s chose in action, by which he appropri- ates it to his sole use, issuch a reduction of it to possession as bars her right of survivorship. In this case, the legal effect of the facts is, that the plaintiff’s husband received the amount of her legacy, by applying it towards payment for the land which he purchased of her father’s residuary devisee, and in which she became entitled to dower. Plaintiff nonsuit. The husband may also, in reduction Needles, 7 Ohio St. 487 (post, p. 429) ; of his wife’s chose in action, instead of receiving the identical article payable to her, receive another thing in its stead, and this will amount to a reduc- tion. Thus, in the principal case of How- ard v. Bryant, the reception by the hus- band of a quitclaim deed from the residuary devisee, conditioned that he should pay all legacies payable by such devisee, of which the legacy to his wife was one, was held to be a reduction. So the taking of a note or obligation for the debt in the sole name of the husband is a reduction. Needles v. Dixon v. Dixon, 18 Ohio, 115. So it has been held that taking a bond from the executor for a legacy is a payment and extinguishment of the legacy. Stewart's Appeal, 3 W. & S. 476. See also Goodwyn v. Goodwyn, Yelv. 39 (Metcalf’s ed.), .and cases cited; Rogers v. Bumpass, 4 Ired. Eq. 385. But see Yerby v. Lynch, 3 Gratt. 460, where the Court was equally divided upon the question; Howman v. Corie, 2 Vern. 190. So also where a bond to trustees was 27 418 COVERTURE. taken in the place of a promissory note, See notes to Standeford v. Devol the funds to be settled upon certain (ante, p. 406), as to how these doctrines trusts determined upon by the husband, are qualified by the question of inten- it was held to be a reduction. Burn- tion. ham v. Bennett, 2 Collyer, Ch. 254. Honner v. Morton. (3 Russ. 65. High Court of Chancery, April 15, 1828.) Assignment of Wife's Remainder in Chattel Interests ; Survivorship ; Confirmation by Wife of Husband's Assignment.— Where husband and wife assign to a purchaser, for valuable consideration, a share of an ascertained fund, in which the wife has a vested interest in remainder, expectant on the death of a ten- ant for life, and both the wife and the tenant for life outlive the hu8band, the wife is entitled, by right of survivorship, to claim the whole of that share of the fund against such particular assignee for valuable consideration. If the: wife, after her husband’s death, executes an assignment of the fund which recites former assignments by the husband, and purports to be made subject to them, she does not thereby recognize or confirm those former assignments. The wife does not acquiesce in those assignments, or waive her right to claim against them, by forbearing to impeach them till the death of the tenant for life. ANTHONY CALVERT, by his will, dated in November, 1808, be- queathed the residue of his estate to trustees, upon trust to invest a certain share of it in the public funds or on real securities, and to pay one-half of the interest or dividends to Eleanor Torrie for her life, and the other half to Susannah Brewer during her life ; and he directed that, after the death of the tenants for life, respectively, the trustees should transfer the principal moneys and funds, in equal shares, to the two daughters of Eleanor Torrie, then living. The testator died in the following Decem- ber; and a sum of 14,395/. three per cent consolidated bank an- nuities was placed in the name of the trustees, as that part of his residue in which Eleanor Torrie and Susannah Brewer were in- terested. Eleanor Torrie, the tenant for life of one moiety of 1 This case, and several of those which follow, were argued at the Rolls before Sir J. 8, Coptuy ; some of them were decided by him at the Rolls; in others, judg- ment was given after he was Lord Chancellor. This case had been previously argued before Lord Girrorp, and stood for judgment at the time of his death. HONNER ¥. MORTON. 419 the fund, had two daughters at the date of the will. She died on the first of April, 1824. Mrs. Brewer, the tenant for life of the other moiety of the fund, was still living. The plaintiff, one of the two daughters of Eleanor Torrie, was, at the date of the will, and at the death of the testator, the wife of John Honner ; and he died in January, 1817, before his wife’s reversionary interest fell into possession. During the coverture, Mr. and Mrs. Honner executed indent- ures, dated in March, 1814, November, 1814, January, 1816, and November, 1816, by which they assigned, for valuable considera- tion, to different purchasers, various portions of the trust fund to which Mrs. Honner would be entitled on the death of her mother and Mrs. Brewer. : The assignment of November, 1816, was made to one Streater. Mrs. Honner, after the death of her husband, agreed to sell to Streater a further portion of the fund; and this agreement was carried into effect by an indentnre, dated in November, 1817, which was indorsed on the assignment of November, 1816. This indorsed deed was made between Mrs. Honner, of the one part, and Streater, of the other part; it recited that Streater was en- titled, under the within written indenture, to a certain portion of the fund, and referred to the other assignments ; and it purported to transfer the property to Streater, subject to these assignments. On the 4th of May, 1824;! Mrs. Honner filed her bill, insisting that the assignments made while her husband and the tenant for life were both alive did not bind her, and praying that her portion of the fund might be transferred to her. The principal question was the same as arose in Purdew ». Jackson, namely, whether, when a husband and wife have as- signed to a purchaser, for valuable consideration, an ascertained fund in which the wife has a vested reversionary interest, ex- pectant on the death of a tenant for life, and the wife and the tenant for life both outlive the husband, the wife is entitled, by right of survivorship, to claim the whole of the fund against such particular assignee for valuable consideration ? , No authorities and doctrines were referred to by the counsel on either side, which were not mentioned in the argument of Purdew v. Jackson, except Lee v. Muggeridge.? 1 After the decision in Purdew v. Jackson, 1 Russ. 1. 2 5 Taunt. 86 (ante, p. 822). 420 COVERTURE. The assignees of the fund contended that, even if the principal question should be decided against them, the wife was bound by acquiescence, having suffered more than seven years to elapse after the death of her husband without questioning the validity of the instrument ; and they further insisted that the deed of November, 1817, executed by the plaintiff when she was a feme sole, would operate as a confirmation of the prior assignments to which it pur- ported to be subject, or, at least, of the assignment of November, 1816. To this it was answered, that it was not incumbent on the plain- tiff to assert her right till the fund fell into possession. As to the deed of November, 1817, it could not give validity to instru- ments which were not previously binding on her; because there was no intention, in any of the parties, that it should operate as a confirmation. A purpose of confirmation would have been manifested by express words of confirmation. The assignments of 1814 and 1816 were, at that time, believed to be valid; and, on this notion, it was very natural that they should be mentioned in the assignment which the wife executed after her husband’s death. It could not give any validity even to the prior deed of Streater himself; still less could it operate as a confirmation of the deeds of persons who were not parties to it. Mr. Shadwell, for the plaintiff. Mr. Horne and Mr. Coombe, for Streater. Mr. Sugdén and Mr. Girdleston, Jr., for some of the assignees of the fund. ; Mr. Lovat and Mr. Garratt, for others of the assignees. The Lorp CHaAncELLoR. This fund was a chose in action of the wife; it was her reversionary chose in action. Whether the husband has the power of assigning his wife’s reversionary inter- est in a chose in action, is a question which has been repeatedly agitated, and has excited considerable interest both at-law and in equity. At law, the choses in action of the wife belong to the husband, if he reduces them into possession ; if he does not re- duce them into possession, and dies before his wife, they survive to her. When the husband assigns the chose in action of his wife, one would suppose, on the first impression, that the assignee would not be in a better situation than the assignor; and that he, too, must take some steps to reduce the subject into posses- sion, in order to make his title good against the wife surviving. HONNER v. MORTON. 421 But equity considers the assignment by the husband as amount- ing to an agreement that he will reduce the property into pos- session; it likewise considers what a party agrees to do as actually done ; and, therefore, where the husband has the power of reducing the property into possession, his assignment of the chose in action of the wife will be regarded as a reduction of it into possession.1 On the other hand, I should also infer, that, where the husband has not the power of reducing the chose in action into possession, his assignment does not transfer the prop- erty, till, by subsequent events, he comes into the situation of being able to reduce the property into possession; and then his. previous assignment will operate on his actual situation, and the property will be transferred. Such are the views which would occur to the mind, if there were no cases or authorities on the subject. But the question has frequently been under the consid- eration of Courts ; and it is material to consider what the authori- ties are, both on the one side and on the other. Sir Witt1am Grant, in Mitford v. Mitford, referring to an opinion which had been entertained in the profession, that the husband’s assignment, for valuable consideration, of the wife’s chose in action, passed an absolute right to the property, freed from the wife’s contingent right by survivorship, seems to have intimated a strong doubt of its soundness. ‘If such be the rule,” says he,? “it is the favor a Court of equity shows to such a purchaser that operates, as in many cases it does, to put him in a better situation than the party from whom he derives his title.” In White v. St. Barbe, he has said, in distinct terms,’ that “‘ a hus- band can dispose of such property of his wife in expectancy against every one but the wife surviving ;”” thereby intimating his opinion, that against the wife surviving the husband’s assign- ment would not operate. Thus stood the question when Hornsby v. Lee * came before the Court. In that case the question was argued on both sides ; and Sir THomas Piumer decided that the husband’s assignment of the 1 This dictum that equity considers the assignment as an agreement to reduce the property into possession, has been since repudiated. See Ashby v. Ashby, 1 Collyer, Ch. 654, citing Elwin v. Williams, 12 Law J. Ch. 440; 7 Jur. 387 ; Ellison v. Elwin, 18 Sim. 309; Arrington v. Yarbrough, 1 Jones, Eq. 82 (post), and notes; 3 Lead. Cases in Eq. * 660 et seg. See, however, Browning v. Headley, 2 Rob. ( Va.) 370 Matheney v. Guess, 2 Hill, Ch. 63; Schouler’s Dom. Rel. 125, and cases cited. 2 9 Ves. 99. 3 1 Ves. and Beames, 405. 4 2 Mad. 16. 423 COVERTURE. wife’s reversionary interest was not valid against her surviving. It is true that it was a contingent interest which was there as- signed ; but the decision did not at all turn on that particular circumstance. The case of Hornsby v. Lee excited considerable inquiry in the profession; and it was discussed very much at length in Mr. Roper’s book on the Law of Husband and Wife. After the at-_ tention of the Court Itad been directed to that decision, the ques- tion came again before the same judge in Purdew v. Jackson.? The point was clearly and distinctly raised. It was argued with great learning and ability on both sides, and particularly on the side adverse to the opinion of the Master of the Rolls. After the first argument, the importance of the question, and the doubts which had been entertained with respect to it, induced the Court to direct a second argument, It was argued again by one counsel on each side, and the Master of the Rolls took time to consider of his judgment. At length he delivered a most elaborate judg- ment; and, after going through every part of the question, came to a conclusion consistent with his opinion in Hornsby v. Lee, — that the husband could not assign the reversionary interest of his wife in a personal chattel, so as to bind her if she survived him. Thus stand the cases in point, and the direct authorities on the one side. These decisions are consistent with the principle to which I have adverted. They support that principle, and are founded on it; and I should feel myself bound by those authori- ties supporting a principle in which I concur, unless I found them overborne by a superior weight of authorities on the other side. It is not my intention to go through all the authorities that have been referred to as contradicting the conclusion to which Sir THomas PLumer came: I shall satisfy myself with adverting to two or three of them, which have been most relied on. Dawbury v. Atkins? was cited at first with much confidence, but appears ultimately to have been given up. The decree in that cause was, in one respect, clearly erroneous: and the Court seems to have considered the legacy, though charged on a reversion, as a present gift; for interest was allowed on it from the death of the testator. In Grey v. Kentish® the decision was in favor of the wife; and, therefore, so far as relates to the decree, that case is not 1 1 Russell, 1. 2 Gilb. Eq. 88. 3 1 Atk. 280. HONNER ¥. MORTON. 423 an authority against the wife’s right by survivorship. But it is cited on account of a dictum which occurs in the report of the judgment. There Lord Harpwicke is represented as stating, distinctly and in terms, “a husband cannot assign in law a possi- bility of the wife, nor a possibility of his own; but this Court will, notwithstanding, support such an assignment for a valuable consideration.” In the first place, this is a mere dictum, and was not essential to the decision of the case. It is also to be ob- served, that the case is most inaccurately reported. As stated in Atkins, it is unintelligible; and it is only by attending to the correction of it in a note by Mr. Cox, that we are able to ascer- tain what the true facts were. I mention this circumstance for the purpose of showing that in Grey v. Kentish not much re- liance can be placed on the accuracy of the reporter. In Bates v. Danby! the decision was against the wife ; but then no doubt could be entertained as to the husband’s power over the property, which was the subject of assignment there; and the application of that case, also, to the present question rests not on the decree, but on a dictum wholly unnecessary for the deci- sion of the actual points which were before the Court. ‘ The husband” [so says the report] ‘‘ may assign the wife’s chose in action or a possibility that the wife is entitled to, as well as her term, so that it be not voluntary but for a valuable considera- tion; but, though he cannot dispose of her chose in action without a valuable consideration, yet he may release the wife’s bond without receiving any part of the money.” Here is the opinion of a very learned judge, not essential to the decision of the par- ticular case, conformable to an opinion said to have been ex- pressed by him in another case, where also it was not essential to the decision. : But in considering what weight these dicta are entitled to, it is material to consider whether the same judge has ever expressed an opinion tending a contrary way. In Bush v. Dalway,? if the husband had died in the father’s lifetime, the same question might have arisen as exists here. The actual state of circumstances in Bush v. Dalway was that the father died first, and then the hus- band ; the husband, upon the death of the father, had a right to the money which was in question; and it was upon the ground of the death of the father in the husband’s lifetime that the wife was 1 2 Atk. 208; 1 Russell, 33. 21 Ves. Sen. 19; 3 Atk. 530. 424 COVERTURE. considered as bound by the covenant of the husband to assign the fund. Lord Harpwicke says: “Perhaps the event might have happened in which she would not be bound, as if the right of action never had vested in the husband, but here it did by his surviving the father. A question was made whether the husband had a right to assign it in his father’s life, which is not necessary here, although I think he might not. Here,”’ continues he, ‘ be- fore the father’s death he had no right of action at all ; but, after- wards, he might have called for it immediately, which the wife could not have otherwise prevented than by a bill for performance of the covenant.”! The learned judge here says (though not in very strong language), that an event might have happened in which the wife would not have been bound by the husband’s covenant to assign her possibility, namely, if he had died before the father, and that the husband could not assign the possibility during her father’s life. The point, indeed, was not necessary for the decision of that particular case ; still the opinion expressed by Lord HarpwickeE on that occasion is at variance with the other dicta I have referred to: and when we are considering to what degree of respect the language so attributed to that learned judge is entitled, we are justified in setting the one dictwm against the other. The prop- osition cited from Grey v. Kentish and Bates v. Danby might have been intended to be qualified in a variety of modes. What is the ground on which in Bush v. Dalway he puts the power of the husband to assign the chose in action of the wife? On the power of the husband to reduce the chose in action into posses- sion. If he had not had the power to reduce it into possession, his assignment or covenant to assign would not have operated; until the power of reducing the fynd into possession vested in him by the death of the father, his covenant did not operate against the wife. The same case is reported in Atkins; but the opinion is not expressed in terms quite so strong. According to that report, Lord Harpwicke expresses himself thus: “ I cannot say but there might have been an event which would have given it to the wife, viz., if her husband had died in the lifetime of the father. But the death of the father happening in the lifetime of the de- fendant’s husband alters the case. I am not obliged to give any opinion, as the husband has not assigned this contingency of the 1 1 Ves. Sen. 20. HONNER ¥V. MORTON. 425 wife’s ; but I am rather inclined to think the husband would not have had a right to assign it. It has been frequently determined,” he adds “ that a husband may assign a wife’s chose in action for valuable consideration. But what does that turn upon? ‘Why, the husband’s right tosell. The husband here survived the father, so that he had aright to call upon the representatives of the father or the trustees to raise it.””!_ In this passage, I apprehend, the word “sell” is a misprint for “sue ;”” and to make the report of the judgment consistent with that in Vesey, we must read, ‘“ the husband’s right to sue,” instead of “ the husband’s right to sell.” From the judgment of Lord Harpwickg, in Ives v. Medcalfe,? an opinion may be inferred similar to that which he expressed in Bush v. Dalway. Hawkins v. Obyn® has been referred to as an authority in sup- port of the husband’s assignment ; and, undoubtedly Lord Harp- WICKE is represented as having there expressed himself in terms corresponding to what he is stated to have said in Grey v. Kent- ish and Bates v. Danby. In that case the testatrix bequeathed 2,0002. to her son and daughter (who were husband and wife), to be enjoyed by them or the survivor of them. The wife might have been the survivor, and her interest was a possibility. Allud- ing to this interest, Lord HarpwicxeE says:* “It has been insisted, too, in order to make this fall within the proviso, that the hus- band’s disposition in his lifetime would have bound the wife, not- withstanding she had survived him ; and if not good in law, yet it would have been in equity. I will not say but the husband might have disposed of this property in equity, if assigned for a valua- ble consideration ; but, then, that must have been upon an actual assignment of this particular thing.” That position, in reference to the particular circumstances of the case, cannot be sustained consistently with any of the authorities: for the event in which the wife would have become entitled never could: have happened during the lifetime of the husband ; and it is clear from all the au- thorities, that, if the possibility cannot happen during the covert- ure, the assignment of the husband does not operate upon it. In the Duke of Chandos v. Talbot,® the wife had attained the age of twenty-five when the question came before the Court, and the husband had a complete control over the property in dispute. 1 8 Atk. 5383. 21 Atk. 63. 3 2 Atk. 549. 42 Atk, 651. 5 1P. Wms. 602. 426 COVERTURE. Theobald v. Duffuy! has no bearing on the subject. It was de- cided on the ground that the wife had joined, and joined with the consent of her friends, in assigning a term. It is mentioned by Lord Harpwicxg, in one of the cases I have referred to (Bush v. Dalway),? and he states what the ground of decision was. Thus it appears that there is no one distinct decision at vari- ance with the judgment of Sir Tuomas PLumer; and, if some dicta can be cited against it, these are opposed by conflicting dicta. Therefore, when I consider the principle which I origi- nally laid down, that, where a husband assigns an interest belong- ing to his wife, and thereby agrees to do every thing in his power to make that assignment effectual, the assignment will be valid against the wife only in those cases in which he is able to reduce the thing into possession ;— when I further find that principle supported by the opinions expressed by Sir WILLIam Grant, and by two distinct decisions of Sir THomas PLumer;—and when I find on the other side no opposing decisions, — I confess I revert to my original opinion (the opinion which I should have pro- nounced if the subject had been untouched by authority), that the husband has no power to give effect to a conveyance of prop- erty of this description, unless circumstances so turn out as to have put him in a situation which enabled him to have reduced the chose in action into possession. If, at the time of the assign- ment, he is in a condition to reduce the chose in action into pos- session, the assignment operates immediately ; if he is afterwards in a condition to reduce the thing into possession, the assignment will then have full effect ; but if he dies before the event hap- pens on which the chose in action may be reduced into possession, the assignment becomes altogether inoperative. In the argument, a class of cases were referred to, which re- lated to the taking of the wife’s consent in Court. Her consent is taken to bar her equity where the husband has a right at law ; and attempts have been made to have her consent taken with a view to affect her expectancy. In Woodlands v. Crowcher (a case of that kind), Sir WitLiam Grant says:% “In this instance the object is not to bar her equity to have a settlement, but to bar the right to survivorship ; ; for upon his death it belongs to her entirely: she is giving up not her equity only, but her entire right by survivorship. That is not the case in which the Court 1 9 Mod. 102. 2 1 Ves. Sen. 20. 3 12 Ves. 177. HONNER v. MORTON. 427 takes her consent. If the husband has a right to convey, let him exercise his right. But why this Court should join and aid him for that purpose, Ido not know.” He thus intimates a strong opinion as to what he considered to be the extent of the right and power of the husband over the reversionary interest of the wife. It is true in that case he afterwards took the consent of the wife ; but it was taken only de bene esse, so as not to prejudice the question in the event of her being the survivor. In the two cases before Lord ALVANLEY, which are mentioned in Woodlands v. Crowcher, the consent of the wife seems to have been taken ; but we know nothing of what was said before that judge, so that no reliance can be placed on them. Neither can any reliance be placed on Howard v. Damiani,! which was a mere order by consent. I pass entirely over Mitford v. Mitford,? and other cases in which the assignments were under a commission of bankruptey. Sir WILLIAM Grant, in giving his decisions in Mitford v. Mitford, expressly drew the distinction between the particular assignee and a general assignee ; and he drew it for the purpose of obviating difficulties in the way of the case, — difficulties which he did not think it necessary to combat. If he founded his conclusion in taking that distinction, it would not be very legitimate rea- soning to adduce his decision in that case in support of the judg- ment of Sir THomas PLumer. In Gayer v. Wilkinson,’ Lord Bathurst took the same distinction for the same obvious reason. I therefore leave those cases entirely out of my consideration. It is said that the husband may release the possibility of the wife; and reference is made to the dictum of Lord Ho tr, in Gage v. Acton,* “that, when the wife has any right or duty, which by possibility may happen to accrue during the marriage, the husband may by release discharge it.”” Whether that dictum be or be not accurately reported, I will not undertake to say ; but in the judgment in which it occurs Lord Hotr differed from the rest of the Court, and the decision was contrary to his opinion. From the decision there was an appeal, which was afterwards abandoned. Lord Kenyon, when the case was cited before him, pronounced the opinion there delivered by Lord Hotr to be “as 12 Jac. & Walk. 458. 2 9 Ves. 87. 3 1 Bro. C. C. 50. 4 1 Salk. 827 (ante, p. 245). 428 COVERTURE. repugnant to the rules of law as of equity.”1 Lord Hott, according to the report in Raymond, cites Lampet’s case, but Lampet’s case does not support the position in the unqualified way in which he states it. Suppose the husband could release the wife’s possibility at law, I do not see how it follows that he can, therefore, assign it in equity. Admit the position that he can release it at law to be incontrovertible; he cannot make his own title perfect, unless he reduces it into possession. Why, therefore, should he be able to assign it in equity, and give another a title which he has not himself ? / After considering the question in all its bearings, and the author- ities and principles on the one side and on the other, these are the reasons which lead me to the conclusion that the judgment of the Master of the Rolls in Purdew v. Jackson was right, and that the husband, dying while the wife’s interest continued reversion- ary, has no power to make an assignment of property of this description which shall be valid against the wife surviving. There are other circumstances, independently of the general question, which have been alluded to in this case. It is alleged that there has been waiver and acquiescence on the part of the wife, because the suit was not instituted, and the assignments were not called in question, till more than seven years after the husband’s death. But the tenant for life did not die till April, 1824, and the bill was filed in the following month. The wife was not called on to take any step till the death of the tenant for life. : The assignment to Streater, which the wife executed after her husband’s death, refers to the former assignments, and is stated to be made subject to them; which, it is argued, amounts toa recognition and confirmation of these assignments. It would be too much to attribute such an effect to such recitals and such phrases ; they were intended merely to state the order in which the assignments were to have priority. I must declare that the four assignments made during the husband’s lifetime cannot be sustained.? See notes to Caplinger v. Sullivan (post). 14 T. R. 885. 2 Vide Ripley v. Woods, 2 Sim. 165; Pierce v. Thornely, id. 167; Wombwell v. Laver, id. 860; Donne v. Hart, 2 Russ. & M. 360; Stiffe v. Everitt,.1 Myl. & C. 87; .. Smith v. Kane, 2 Paige, 303; Van Epps v. Van Denseu, 4 Paige, 64. In the Matter NEEDLES v. NEEDLES. 429 NEEDLES’s Executor v. NEEDLES. (7 Ohio St. 432. Supreme Court of Ohio, December Term, 1857.) Husband cannot release his Wife’s Expectancy of Inheritance so as to bar her Survivorship. Doctrine of Advancements somewhat considered. — The wife's contingent right by survivorship to her choses in action immediately reducible into possession, may be barred by settlement before or after marriage, by actual reduction into possession by the husband, or certain acts held to be equivalent to actual reduction into possession, such as recovery of judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole name of the husband, by assignment by the husband for a valuable consideration, or by release. The husband’s right of property in the wife’s choses in action is dependent on the contingency of his reducing them into possession during coverture; and, al- though an assignment for a valuable consideration by the husband of the wife’s chose in action, capable of immediate reduction into possession, is regarded as a substantial reduction into possession by him, yet the assignment or transfer of the wife’s reversionary interest, or interest in expectancy, does not amount to a reduction into possession by the husband, inasmuch as such interest in futuro is incapable of immediate reduction into possession, and the effect of the assignment is simply to place the assignee in the same situation with, and no better than that of, the assignor. The effect of the law on this subject is, that the wife’s dominion or power of dis- posal, which the husband by virtue of the marital relations assumes over the wife’s choses in action, consists not in his succession to the wife’s right of prop- erty, but the power of control and management of her choses in action for her benefit, together with the power of acquiring an absolute right of property in the same, so far as they are capable of actual reduction into possession. Although, as a general thing, all contingent and executory interests and con- tingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, are assignable and releasable, yet it is a settled rule, that what is termed either a naked possibility or a remote pos- sibility cannot be released, for the reason that a release must be founded on— aright in being, either vested or contingent. Consequently, the mere ex- pectancy or chance of succession of an heir apparent to his ancestor’s estate at his decease, is not the subject-matter of release or assignment at common law. RESERVED in the District Court of Franklin County. This is a petition for an order of distribution of assets, in the hands of the petitioner, as executor of Philemon Needles, deceased. of Stuart, 1 Edw. Ch. 172. And see, post, the two next cases: Watson v. Dennis, p. 90, and Sansum v. Dewar, p. 91; also, Martin v. Martin, 1 Hoff. V. C. 462; Crowder v. Stone, post, 224. 430 COVERTURE. The petition recites, that Philemon Needles, the testator, died April 6, 1851, leaving eight children: to wit, James Needles ; Rachel, married to Thomas Needles; Anna, married to Littleton R. Gray; Amy, married to Jacob Swisher ; Rebecca, married to George Daily; Enoch A. Needles ; Lucinda, married to John Keys; and John A. Needles. That, on the 23d day of May, 1849, Philemon Needles made his last will and testament, whereby he gave certain specific legacies as follows, to wit: to his wife, a house and lot, $1,500 in money, and some household furniture, &c. ; to Rachel, $5; to Anna, $50; to Amy, $50; to James, $30; to John A., $200; to Rebecca, $200; to Lucinda, $50; to his grandson, Enoch A., son of Enoch A., $200; to the children of his daughter Anna, $2,000; to the children of his daughter -Lucinda, $1,800; to the children of his daughter Amy, $1,800 ; to the Methodist College in Delaware, $100. The testator then directs, that, if there be any thing left after paying these legacies, then a sum not exceeding $300 is to be paid to the children of his daughter Rebecca. And the will closes without any residuary clause. The petition states also that the will has been admitted to pro- bate; and that, after paying the debts of the estate, and the specific legacies, there is a surplus of about $8,000 in the hands of the executors for further distribution. That Lucinda, wife of John Keys, George Daily, husband of Rebecca, and Littleton R. Gray, husband of Anna, all died before the death of the testator ; and that Rebecca afterward married William Mitchell. The petition states further that, on the 13th of August, 1840, the following instrument was executed and delivered to the testator in his lifetime, by John Keys, to wit : — ‘Received, of Philemon Needles, two thousand dollars, which I acknowl- edge is to be in full of all claims I could have against the estate of said Philemon Needles, after his death, as one of his heirs, hereby binding myself and my heirs not to set up any further claim. In witness whereof, I have hereunto set my hand and seal, this 13th day of August, a.p. 1840. “JOHN KEYS. [t.s.] ‘¢ Witness, Morris Fooxss.” Also, another instrument in the same words, dated September 24, 1840, signed and sealed by Littleton W. Gray ; also, another instrument, dated August 9, 1848, in the same words, signed and NEEDLES v, NEEDLES. 431 sealed by George Dailey and Rebecca Dailey ; and also another instrument, dated on the 21st of December, 1844, in the same words, excepting that the sum received is $1,375, instead of $2,000, signed and sealed by Thomas Needles and Rachel Nee- dles ; and the petitioner further states that, while, on behalf of the daughters whose husbands severally executed the said instru- . ments in writing as aforesaid, it is claimed that an equal distribu- tion with the other heirs at law of the decedent should be made in the said overplus not disposed’ of by the will, on the other hand, the four other children insist that the instruments in writ- ing aforesaid are valid releases, and that, therefore, the daughters whose husbands executed them are thereby barred from any share in that part of the estate undisposed of by the will. Wherefore the petitioner prays the interference of the Court, and an order of distribution directing him as to his duty in the premises. Swayne and Barber, for petitioner. John W. Andrews and Henry Stanberry, for the children against whom releases are set up. P. B. Wilcox, for the four children who claim the whole over- plus. Bartiey, C. J. The first inquiry suggested by the facts of this case is, whether the several gifts or donations made by Phile- mon Needles to his four sons-in-law, for which he took the sev- eral receipts in question, can be treated as advancements under the statutory regulation on that subject in this State. It was held in the case of Putnam’s Adm’r v. The Heirs of Putnam, 18 Ohio, 347, that the former laws of this State regu- lating descents and distributions of personal estates provided for advancements as to real, but not as to personal, property. And this construction, although stringent, and resulting in unjust and unequal distribution of estates, was affirmed by several decisions made afterwards. The difficulty was, however, removed by legis- lation ; and the statute now in force applies the rule in relation to advancements to estates personal as well as real. Ohio Stat. revised, 323, sec. 10. The provision, however, as to advancements applies only in case of intestacy. True it is, Philemon Needles died intestate as to the residuum of his estate now sought to be distributed. But it is apparent from the provisions of his will that he designed and manifestly supposed that he had made a 432 COVERTURE. disposition of his whole estate. He made bequests to all his children, severally, in various amounts, and even anticipated a supposed residuum of $300 in his distribution. The several advancements which had’ been made to his four sons-in-law, for which he had taken their said receipts, must have been in his contemplation when he made his will. How much he had pre- viously advanced to his other children does not appear in this case. But it is fair to presume, that, in view of all his previous advancements, he made such a distribution of his property by his will as he deemed just and proper. In such a case, therefore, although the testator had, unexpectedly and beyond his own anticipation, died intestate as to a residuum of his estate, the statutory provision as to advancements could have no just appli- cation ; and whether it could apply to any case of partial intes- tacy, where the testator knowingly and designedly made a testamentary disposition of only a part of his property, it is not necessary to consider in this case. It is insisted, however, that the interest in expectation, or hoped-for inheritance of the daughters, Rachel, Anna, Rebecca, and Lucinda, from their father’s estate, was released by their several husbands by virtue of the instruments of writing exe- cuted by them respectively to the father, whereby each acknowl- edged the receipt of the advancement made, and agreed with the father not to set up any further claim against his estate, as one of his heirs after his decease. And this presents the question of the power of the husband to release the wife’s bare possibility or expectation of inheritance from her ancestor. One of the daughtefs, Lucinda, and two of the sons-in-law, Dailey and Gray, died before the death of the ancestor, and, therefore, before any actual right or interést could have vested in the wife by inheritance. The wife of George Dailey and the wife of Thomas Needles, respectively, united with their husbands in signing the receipts. This, however, cannot affect the ques- tion or give any legal vitality to the instruments, if they had none without it. If the husband had the power to release, or by con- tract, to bar this mere expectancy of the wife, it was by virtue of his right and control over his wife’s personal estate, and not by means of the wife’s consenting thereto. It may be that, in a disposition of, or an arrangement in regard to, a wife’s property by the husband, made with a view to the wife’s separate use or NEEDLES v. NEEDLES. 433 advantage, the consent of the wife might in a Court of equity be treated as a material element in the transaction. But in the release or assignment of the wife’s choses in action by the husband, for his own interest, the wife’s uniting'with the husband in the execution of the contract is a matter of no legal consequence whatsoever. In regard to the personal estate of the wife, not held in trust for her separate use, the husband represents the wife, exercises all her authority; and, indeed, in contemplation of law, the legal existence of the wife in that regard is merged in that of the husband. There is but one mode known to our law by which a married woman is authorized to join her husband in the execution of a contract, and that has reference to real estate, and is done under certain formalities and guards against marital influ- ence prescribed by statute, not attempted to be followed in this case. It was held in Stamper v. Barker, 5 Mad. C. C. 157, that the wife could neither be barred of her right by survivorship to her reversionary interests, by her consent in Court in favor of her husband, nor could she upon separation from her husband bind herself by deed stipulating that he should have a certain part of her contingent property when it should fall into possession. The wife’s consent, even in Court, or her joining her husband in an assignment or deed for her reversionary interests, has been held ineffectual as to her right of survivorship in numerous cases. Hornsby v. Lee, 2 Mad. C. C. 16; Woollands v. Crowcher, 12: Ves. 174; Pickard v. Roberts, 3 Mad. C. C. 384; White v. St. Barbe, 1 Ves. & B. 405. It is by force of the statute in this State that the wife’s interest in property is affected at law by her join- ing in the execution of a conveyance. The inquiry in this case, therefore, involves the question of the extent of the power of disposal, by the husband, of the wife’s contingent interest or mere expectancy. It appears to be well settled that the wife’s contingent right by survivorship to her choses in action, imme- diately reducible into possession, may be barred by settlement, before or after marriage, by actual reduction into possession, or certain acts held to be equivalent to actual reduction into posses- sion; such as the recovery of a judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole name of the husband, by an assignment by the husband for a valuable consideration, or by release. It appears to have been held in England, at one time, that an assignment 28 434 COVERTURE. for a valuable consideration of the wife’s choses in action, pres- ently reducible into possession, would not defeat the right of the wife by survivorship. Burnett v. Kinaston, Freem. 241. But for a series of years past it appears to have been settled in that country that, an assignment or release for a valuable considera-_ tion by the husband, of the wife’s choses in action immediately reducible into possession, would bar her title by survivorship. Clancy’s Husband & Wife, 150. But the more recent English equity cases are wholly irreconcilable with the former decisions on the subject of the power of the husband to defeat, by assign- ment, the contingent right of the wife by survivorship to her re- versionary interests, or choses in action not immediately reducible into possession. In Chandos v. Talbot, 2 P. Wms. 601; Bates v. Dandy, 2 Atk. 206; Hawkins v. Obyn, id. 549, it was held that the wife’s reversionary or contingent interest, or the possi- bility of a term, or the specific possibility of the wife, may be released or assigned by the husband for a valuable consideration, so as to defeat her title by survivorship. But a different doctrine was held to be law in Hornsby v. Lee, 2 Mad. C. C. 16; in Pur- dew v. Jackson, 1 Russell, 70; in Honner v. Morton, 3 id. 65; and in Mitford v. Mitford, 9 Ves. 87. In the last-mentioned case, Sir WILLIAM Grant disputed the soundness of the rule, that the husband’s assignment for a valuable consideration passed the wife’s chose in action, freed from her contingent right of sur- vivorship, upon the ground that in such case the purchaser would take a greater right than the husband had. In Hornsby v. Lee, Sir Tuomas Piomer held that the husband’s right to the wife’s choses in action was dependent on the contingency of his reducing them to possession during coverture; that a deed assigning a reversionary interest is not an actual reduction into possession, because it is impossible to reduce a reversionary interest into possession ; and that it could not be a constructive reduction into possession, because its only effect is to place the assignee in the same situation as the assignor; that is, if the husband sur- vive the wife, the assignee would retain the property ; if, on the other hand, the wife survive while the interest continues rever- sionary, she is entitled to the property. . It is proper to observe that our attention is directed to the question of the wife’s right of survivorship, and the extent of the husband’s power of disposal to affect it by assignment or NEEDLES v. NEEDLES. 435 release. We have nothing to do at present with the question, which is of frequent occurrence in chancery cases, touching the extent to which the husband, by assignment of the wife’s prop- erty, may affect what is termed the wife’s equity to a suitable provision out of the property for the support of herself and her children. That is a subject wholly disconnected with the ques- tion now before us, and presents very different rules for con- sideration. . In the case of Purdew v. Jackson, above cited, where the ques- tion directly arose as to the power of the husband to bar the wife’s right by survivorship to such reversionary interest, by an assignment for a valuable consideration, the authority of the decision in Hornsby v. Lee was strenuously denied; and the Master of the Rolls, in affirming his views expressed in the former case, after a patient hearing and searching investigation of the whole subject, said : — ‘ “The law of marriage gives the wife’s choses in action to the husband, on condition that he reduce them to possession during its continuance; if he die before his wife without having done so, she takes them by survivorship. How, then, his honor asks, can he bar her right of survivorship by an act which is not a reduction into possession, and that, too, at a time when it is impossible, from the nature of the reversionary chose in action, that it should be reduced into possession? That if it be said that her right may be barred by something short of reduction into possession, namely, an assignment for valuable consideration, we must alter the doctrine laid down in our books. It will no longer be true that the husband shall not have the chattels personal of the wife lying in action, unless he reduce them into possession during the marriage. “That the effect of an assignment for a valuable consideration operates no otherwise than by putting the assignee in the place of the assignor; that the assignor cannot give to another a power which he himself does not possess; and that, therefore, where the wife has a chose in action which the husband himself cannot recover, he cannot assign over to another the right to reduce it into possession. That the husband's right is merely a right to obtain possession of the subject, when the period ariives at which the wife is entitled to the possession of it; and if he die in the mean time, leaving his wife surviving, his right is gone, and the right of the surviving wife takes effect. The assignee for valuable consideration must take the right as the husband himself had it; he buys the chance of the husband’s outliving the wife, or of the reversionary chose in action falling into possession during coverture, and he must wait to see how the event turns out. That in this case the husband had died before the chose in action had been reduced into possession; the assignee had, therefore, lost all chance of recover- ing it, and the wife took it by her right of survivorship.” This doctrine was reaffirmed in Morley v. Wright, 11 Ves. 12; and also in Ellison v. Elwin, 13 Sim. 809. And again, in 436 COVERTURE. Honner v. Morton, above cited, Lord Chancellor LynpHURST fully sustained this doctrine, which had been declared by the successive Masters of the Rolls, Lord ALVANLEY, Sir WILLIAM Grant, and Sir Tuomas PiumeEr, as to the reversionary interest of the wife; and, in doing so, he took a distinction between a case where the husband had the power at the time of the assign- ment of reducing the chose in action or interest into immediate possession, and where he had not, — holding that, in the former case, the assignment ought in equity to be regarded as a con- structive reduction of the property into possession; for as he had the power of reduction into possession and the assignment amounted to an agreement to do it, equity would regard that as being done which the party had agreed todo. This doctrine, how- ever, so well supported by authority and by reason, and apparently resting on ground incontestable, was strenuously and with laborious research controverted by Chief Justice G1sson in the case of Siter and another, guardians of Jordan, 4 Rawle, 468, wherein he con- tended that marriage worked not only a transfer to the husband of the wife’s choses in action reduced to possession during coverture, but a transfer of the wife’s dominion and power of disposal, so that whatever interest she might have assigned if a feme sole, the husband could assign or release for a valuable consideration ; and that the distinction between vested and contingent or reversionary interests of the wife, in respect to the marital dominion and power of transfer over it made in the recent English cases, is without foundation. But the extensive and critical reviews of the English cases by Chief Justice Gipson was not necessary to the decision of his case, and could only have been designed to expose a supposed erroneous theory in the English decisions, inasmuch as the authority of the case of Siter is to the effect only, and can go no further than, that the assignment of a wife’s chose in action by her first husband to trustees for the benefit of the wife and children, and to place it beyond the power of waste by a subsequent husband, was meritorious and valid in equity. The views of Chief Justice Gipson on this subject, however, have been adopted in subsequent decisions in Penn- sylvania, in which they were applicable and reluctantly followed in the recent case of Webb’s Appeal, 21 Penn. St. 248, wherein the remark is made in the opinion of the Court. However averse to this conclusion some of us might be, if the question were an open one, we remember that our office is jus dicere, and NEEDLES UV. NEEDLES. 487 not jus dare ; and we bow to authorities which we are bound to respect.” This doctrine, however, appears to be peculiar to Pennsylvania. I have not been able to learn that it has been recognized in any well considered case in either of the other States in this country. The case of Tuttle v. Fowler, 22 Conn., goes no further than to decide that the husband’s assignment of the wife’s chose in action capable of immediate reduction into possession, was sub- stantially such a reduction into possession by the husband as to defeat the wife’s right by survivorship. The doctrine of the decisions in England above mentioned was recognized as law by the Court of Errors and Appeals in Mississippi, in the case of Sale v. Saunders, 24 Miss. 25; and has been followed in numerous other cases in this country. And the distinguished law writer, Mr. Clancy, in his treatise on, the rights, duties, and liabilities of husband and wife, sustains the doctrine of the English decisions in relation to the wife’s right of survivorship in her contingent or reversionary estate, and denies that the power of disposal by the husband, so as to bar the rights of the wife by an assignment for a valuable con- sideration is absolute. The effect of the law upon this subject would seem to be, that the wife’s dominion or power of disposal, which the husband by virtue of the marital relation assumes over the wife’s choses in action, consists not in his succession to the wife’s right of property, but the power of control and man- agement of her choses in action for the wife’s benefit, together with the power of acquiring an absolute right of property in the same, so far as they are capable of reduction into possession. There can be no ground for a distinction between the power of the husband to bar the wife’s contingent right of survivorship by assignment, and that of doing the same thing by release. If the husband could not by assignment transfer to the assignée any greater interest than that which belonged to him, he certainly could not by release to the releasee. The reason which controls in the one case must prevail as to the other. And where the hus-. band has not the power of disposal to affect the wife’s right by survivorship by assignment, he could not affect it by release. This view of the law is decisive of this case. The interests in expectancy of the four daughters of Philemon Needles, whose husbands executed the instruments in the petition mentioned, 438 COVERTURE. were not, of course, capable of reduction into possession at the time of the execution of the instruments, and were not, by either of the husbands, reduced into possession afterwards. And in the proceeding now pending, the claim to the inheritance is set up in behalf of each of the wives, and not of that-of either of the hus- bands. It has been urged in this case, that where a feme covert has a right which, by possibility, may happen during coverture, the husband may release it or covenant to release it for value, and ~ bona fide, so as to bind the feme for ever. And this raises the in- quiry whether there was any right or interest which could have been the subject-matter of release at the time of the execution of the instruments in question. It has been said that, ‘‘ where the wife hath any right or duty which by possibility may happen during the coverture, the husband may, by release, discharge it.” Sheppard’s Touchstone, 151. It is true, as a general thing, that all contingent and executory interests and contingent estates of inheritance, as well as springing and executory uses and _ possi- bilities coupled with an interest, are assignable and releasable. But it is also a general rule, that a naked or remote possibility cannot be released, for the reason that a release must be founded on a right in being, vested or contingent. 8 Bacon’s Abr. 280; Pellitrean v. Jackson, 11 Wend. 110. Where there is a present existing right, although to take effect in future, and even then only on a contingency, it may be released. 9 John. 123. But in case of a mere possibility, or a remote possibility, which is termed in law a possibility on a possibility (4 Kent, Com. 206), there is no right in being which can be the subject of release. ‘The word possibility,” says Smith on Real and Personal Property, “thas a general sense, in which it includes even executory inter- ests, which are the objects of limitation. But, in its more specific sense, it is that kind of contingent benefit which is neither the object of a limitation, like an executory interest, nor is founded in any lost but recoverable seisin, like a right of entry. And what is termed a bare or mere possibility signifies nothing more than an expectancy, which is specifically applied to a mere hope of succession unfounded in any limitation, provision, trust, or legal act whatever ; such as the hope which an heir, apparent or presumptive, has of succeeding to the ancestor’s estate.’ Smith on Real and Personal Property, 192. NEEDLES v. NEEDLES. 439 And it appears to be well settled, that a contingent interest of @ person unascertained, or a mere possibility as distinguished from a contingent interest in a person who is ascertained, or the mere hope or chance of succession of an heir apparent, cannot be released. Sheppard’s Touch. 322 and 328. It is manifest, therefore, that at the time of the execution of the instruments in question, there was no right or interest in being which could have been the subject-matter of release. But it is said that although such a release or assignment of the mere possibilities or expectancies of heirs apparent is wholly invalid at law, yet that a Court of Equity will regard it, and give effect to it, as a contract to release, when the interest becomes vested, and consequently that, when the interest does so become vested, the claim of the releasee will be enforced, not indeed as a trust, but as a right under a contract. Or, in other words, that the hope or chance of succession would be barred by estoppel. It might be a sufficient answer to this to say that no claim is set up in this proceeding, in behalf of either of the husbands to any interest in his wife’s inheritance from her father’s estate; and. that the instruments in question, if regarded in equity as con- tracts to be enforced, must be treated as the contract solely of each of the husbands, and as creating no estoppel against the wife. But, for my own part, I feel no hesitation in questioning the validity of such a contract. What is the real character of the contract before us? Philemon Needles, in his lifetime, made certain advancements to four of his daughters, and took from the husband of each a receipt for the amount advanced, in which the husband acknowledged the same ‘to be in full of all claims he could have against the estate of said Philemon Needles, after his death, as one of his heirs,” and stipulating for himself and his heirs “not to set up any further claim.” Where is the mutuality either of consideration or of obligation for this agree- ment? The advancement was a voluntary act; and whether Philemon Needles should thereafter give any more of his property to these children depended on his own pleasure. He could, by his will, so distribute his property as to wholly deprive them of any further share in his estate ; or he could, as he actually did sub- sequently choose to do, in the distribution of his property by will, give them a further share in his estate. The stipulation only conceded to Philemon Needles that which was an inherent 440 COVERTURE. legal right of his own in the disposition of his own property. The real nature of the contract was such as to impose no binding legal obligation. If Philemon Needles chose afterwards to make further donations to these children, this contract could not pre- vent their accepting it; and if he was disposed to give all the residue of his property to others, he had the legal right and full power so todo, without any such agreement.! . . . Ordered, that an equal distribution be made among all the heirs at law of Phile- mon Needles, deceased, of the residuum of his estate undisposed of by will. Brinkeruorr, Bowen, and Scort, JJ., concurred. Swan, J., having been of counsel, did not sit. CAPLINGER v. SULLIVAN. (2 Humph. 548. Supreme Court of Tennessee, December Term, 1841.) Assignment of Wife's Remainder or Reversion in Chattels. Survivorship. — 1. Felts bequeathed certain slaves to his wife for life, and, at her death, to her daughter Ann, wife of Sullivan. Sullivan, having purchased the life-estate, sold and delivered the slaves to Caplinger, and died, leaving the tenant for life, and Ann his wife, alive. Held that, on the death of the tenant for life, the slaves belonged to Ann Sullivan. 2. No assignment by the husband of the reversionary choses in action, or other equitable interests of the wife, even with her consent and joining in the assignment, will exclude her right of sur- vivorship. THIS is an appeal in error from the Circuit Court of Smith County. Burton, for the plaintiff in error, cited, 2 John. Ch. 208; 2 Story, 631; Clancy, 442; 2 Atk. 419; 10 Ves. 90; 2 Kent, 141; Claney, 187-39; 1 & 2 Law Lib. 141-48; 12 Ves. 437; 2 Atk. 550; 2 Cruise, 271; 5 John. Ch. 202; 3 Cowen, 590; 1 Yerg. 418; 10 Yerg. 190. Caruthers, for the defendant in error. . Reess, J., delivered the opinion of the Court. ! The remainder of the opinion is devoted to the discussion of a question foreign to the matters treated of in this volume, and hence is omitted. See next case and notes. CAPLINGER v. SULLIVAN, 441 This is an action of detinue for slaves. The property in ques- tion was bequeathed by the last will and testament of Boling Felts, to his wife for life, and after her death to Ann Sullivan, the plain- tiff in this suit, then the wife of William Sullivan; and the said William was appointed executor of the will. He duly took upon himself that office, and, in 1819, purchased of Mary Felts, testator’s widow, the property in question, for the sum of one hundred dollars per annum, to be paid to her during her life. In 1830, Mary Felts acknowledged in writing her reception of a sum in gross, from William Sullivan, in satisfaction of her annuity. Sub- sequently, in the same year, William Sullivan conveyed the slaves, for a valuable consideration, to Caplinger, the defendant, and put him in possession thereof, he himself having been possessed of them from the time of his purchase in 1819. William Sullivan died in 1835; Mary Felts, the owner of the slaves for life, and Ann Sullivan, the wife of William, to whom they were limited in re- mainder, surviving. Mary Felts died in 1838. These facts, in the Circuit Court, were found by the jury in a special verdict ; and judgment thereon was pronounced by his honor the circuit judge in favor of Ann Sullivan, the plaintiff; and the defendant, Cap- linger, has appealed in error to this Court. Justice Story, in his Commentaries on Equity, paragraph 1418, states it as a principle, that “no assignment by the husband of reversionary choses in action, or other reversionary equitable interests of the wife, even with her consent and joining in the assignment, will exclude her right of survivorship.” The assign- ment, he adds, “is not, and cannot from the nature of the thing, amount to a reduction into possession of such reversionary inter- ests.” The general principle thus laid down we find to be abun- dantly sustained by authority, and particularly by the leading cases on the subject, Purdew v. Jackson, 1 Russ. 1, determined by Sir Tuomas PLumer, Master of the Rolls, and the case of Honner v. Morton, 8 Russ. 65, determined by Lord Chancellor Lynpuurst, 15th April, 1827. The point settled in the last case is, that, where husband and wife assign to a purchaser, for valuable considera- tion, a share of an ascertained fund in which the wife has a vested interest in remainder, expectant on the death of a tenant for life, and both the wife and tenant for life outlive the husband, the wife is entitled by right of survivorship to claim the whole of the share of the fund against such particular assignee for valuable consider- 442 COVERTURE. ation. The Lord Chancellor refers to the principal cases relied on on either side, and particularly to the case before Sir THomas Piumer; and concludes, after considering the question in all its bearings, and the authorities and principles on the one side and on the other, that the judgment of the Master of Rolls in Purdew v. Jackson was right, and that the husband, dying while the wife’s interest continued reversionary, had no power to make an assignment of property of this description which shall be valid against the wife surviving. But it is urged, on bebalf of the defendant in this case, that the husband did not die while the wife's interest in the property con- tinued reversionary ; for it is said that the reversionary character of the interest was terminated by the purchase on the part of the husband from the tenant for life. But this we think is not so. For if after this purchase, the husband had died without assign- ment, can it be doubted that the personal representative of the husband would have been entitled, during the existence of the tenant for life, to the property in question, and, after that, that the wife would have been entitled by survivorship ? The wife had no interest in the husband’s purchase; he stood in the place of tenant for life. The tenancy for life still con- tinued ; and the reversionary interest, unaffected by such purchase, could not commence in possession till the life-estate terminated. The husband possessed the slaves ; but he possessed them as pur- chaser, not as husband, and his title and possession were of, and commensurate with, the life-estate, and that only. Here was no merger of estates. The life-estate belonged to the husband solely and absolutely as purchaser ; the reversionary.interest or remainder, to husband and wife, in right of the wife, and liable to become his absolutely by survivorship. If the husband, having assigned, had continued to live till the lifetime estate had terminated, then, indeed, as a Court of Chancery views such assignment as an agreement to assign when in his power, and considers that also as done which ought to have been done, the assignee for a valuable consideration would, in equity, have been entitled to the property.! We have been referred by defendant’s counsel to the case of Pinckard v. Smith & Wife, Littell’s Select Cases, 331, as bear- ing on this question. The Court in that case seemed to be of 1 See note (1) p. 421, and post p. 468. CAPLINGER v,. SULLIVAN, 443 opinion that a vested remainder in a slave accruing to the wife . during coverture, so far vested in the husband as that he would be entitled to recover the same without administration on the wife’s estate. But they also state it as their opinion, that it does not so vest as to defeat the wife of her right by survivorship. The case, whether properly determined or not, can therefore be no authority bearing upon the case at the bar. Upon the whole, we are of opinion that the Circuit Court pro- nounced the proper judgment upon the special verdict, and we therefore affirm that judgment. The doctrine that no assignment by the husband, even with the wife’s con- sent and joining in the assignment,, will exclude her right of survivorship to reversionary choses in action, or chattel interests in remainder after an intermediate life-estate in another per- son, is well settled. See also Purdew v. Jackson, 1 Russ. 1-71, s. c. 4 Law Jour. Ch. 1, a leading case, where the subject is discussed at great length; Ellison v. Elwyn, 13 Simons, 309; Rogers v. Acaster, 14 Beav. 445; s. c. 11 E. L. & Eq. 300; Hayes v. Ewell, 4 Grat. 11; Ashby v. Ashby,’ 1 Coll. Ch. 553; Wood v. Simmons, 20 Mo. 363; 2 Story’s Eq. Jur. § 14138, and notes; 1 Bish. on Mar. Wom. §§ 75 et seq., 133 et seg., 154, 648; Schouler’s Dom. Rel. 124 et seg.; 3 Lead. Cases in Eq. * 659 et seg., and cases cited ; Cage v. Acton (ante p. 245). The opposing cases — Siter’s case, 4 Rawle, 468; Woelper’s Appeal, 2 Penn. St. 71; Shuman v. Reigart, 7 W. & 8.169 (explained in 13 Penn. St. 561) ; Webb’s Appeal, 21 Penn. St. 248; Smilie’s Estate, 22 Penn. St. 130; Tuttle v. Fowler, 22 Conn. 65; Hill v. Townsend, 24 Tex. 575; Walker v. Fenner, 28 Ala. 367; Thrasher v. Ingram, 32 Ala. 668; Banks v. Marks- bury, 3 Litt. 275—seem, as to this point, contrary to the weight of reason and of authority. See also Duberley v. Day, 16 Beav. 33, s. c. 5 H. L. Cas. 888, where it was held that, though a husband may make a valid assignment of his wife’s reversionary interests in leaseholds, yet, if the interest is of such a nature that it cannot by possibility vest in the wife in possession during the coverture, the husband cannot make a valid as- signment thereof. Siter’s case, though believed as to the point above stated to be unsound, ? is so ably reasoned and so often cited as to warrant its being appended to this note.” 1 See the case criticised in Needles v. Needles (ante p. 429); Wood v. Simmons, 20 Mo. 378; George v. Goldsby, 23 Ala. 388. See also Arrington v. Yarbrough, and ! notes (post p. 455). ? This was an appeal from the decree of the Orphans’ Court of Chester county, confirming the guardianship account of the appellees, Edward Siter and Dewalt Beaver, guardians of Ann Jordan, late Siter. The appeal was taken by Hiram Tay- lor, who, after the death of her first husband, Jordan, intermarried with the ward. The facts material to the point made here were these: Adam Siter, the father of the ward, died in 1799 intestate, and leaving real and personal estate, a widow, and children. In 1803, the appellees were appointed guardians of the person and estate of his daughter Ann, then an infant under the age of fourteen years, and subse- quently intermarried with John M. Jordan. In the settlement of their account, they took credit for $3,616.78, retained by them as trustees for their ward and her son 444 COVERTURE. _Andrew M. Jordan, under a deed executed by her husband, John M. Jordan, on the 28d day of October, 1817, in the words following: “ Know all men by these pres- ents, that I, John M. Jordan, late of Blockley township, Philadelphia county, and State of Pennsylvania, do hereby acknowledge to have received of Edward Siter, of Radnor township, Delaware county, and Dewalt Beaver, of Treddyffrin township, Chester county, both of the State aforesaid, guardians duly appointed for the minor children of Adam Siter deceased, the sum of $3,271.92; in ‘consideration whereof, and for the love and regard which I have and bear towards my wife Ann and child Mitchell Jordan, together with other good causes me thereunto.moving, do hereby, and by these presents, assign, transfer, set over, convey, and dispose of all my right, title, claim, and demand whatsoever, of, in, and to the residue of my share which I claim through my wife, out of the estate of my late father-in-law, Adam Siter, de- ceased, together also with my mother-in-law’s dower after her decease (excepting and reserving only as is hereinafter reserved and excepted), unto Edward Siter and Dewalt Beaver, hereinbefore mentioned, in trust, and for the uses and purposes as followeth; that is to say, the aforesaid Edward Siter and Dewalt Beaver, for the trust and confidence placed in them, do hereby bind themselves, their heirs, executors, and administrators, to pay the interest annually arising from the residue of the afore- said share and dower, unto my wife, Ann Jordan, for her use and support, as also for bringing up and supporting our son Mitchell, for and during the natural life of the said Ann, and, after her decease, to our said son Mitchell, if he should be of age at the decease of the mother, or as soon as he arrives to the age of twenty-one years, the principal ; and, for the better securing the residue of the aforesaid share for the uses and purposes hereinbefore mentioned, I do hereby, for myself, my executors, and ad- ministrators, assign, transfer, set over, convey, and dispose of the same unto the afore- said Edward Siter and Dewalt Beaver, their heirs, executors, and administrators, in trust and for the uses and purposes hereinbefore mentioned. In witness whereof,” &c. After the execution of this deed the husband, who was previously intemperate, and had squandered the greater part of his wife’s property, deserted her, and has not since been heard of. Subsequently to the lapse of the period prescribed by the act of assembly, as necessary to raise a legal presumption of his death, she intermarried with Hiram Taylor, the appellant. On the 1st of April, 1807, Dewalt Beaver, one of the appellees, had in his hands 7261. 8s. 10d., part of the estate of his ward. Edward Siter, the other appellee, and one of the children of the decedent, had previously accepted for himself, a messuage and 116 acres, called the Eagle property, parcel of the real estate, apprised at $16,800 and given bonds to the other children for their portions of the valuation money. William Siter, another child, had accepted the residue of the real estate, given bonds likewise to the other children, and conveyed the part so accepted by him to Edward, who had assumed all the responsibilities incurred by the acceptance of it. Edward, being thus indebted for the real estate, on the Ist of April, 1807, was charged by himself and his fellow-guardian in the guardianship book of entries with the moneys due to their ward on the bonds given for her portion of the valuation money. The appellees continued to charge themselves on the guardianship account with moneys received, and to credit themselves for moneys paid out, after the execution of the deed of trust, by entries made at various times, till the book was closed on the Ist of April, 1818. The widow was living at the execution of the deed of trust. The estate of the wife, consisting at that perigd of choses in action, had therefore not been reduced to possession by the husband, a part of it being actually or potentially in the hands of the appellees to whom the deed was made, and the residue secured by bonds receivable at the death of her mother. The question was, whether the deed of trust passed no more than the husband’s right of reduction into possession CAPLINGER v. SULLIVAN. 445 during his lifetime; whether it passed the interest of the wife, and consequently entitled the trustees to retain for the purposes of the trust after his death. The cause was argued at December term last, by Cohen and Kittera for the appellant, and by Dillingham for the appellees. The Court having ordered a reargument, it was argued again at this term, by Cohen (with whom was Kittera) on behalf of the appellant. Bell and Dillingham, for the appellees were relieved by the Court, whose opinion was delivered by Gizson, C.J. The objection to this settlement is rested on the authority of Hart- man v. Dawdle, 1 Rawle, 279, which requires a valuable consideration for the con- tract of equitable assignment, in order to bar the wife’s survivorship. It certainly was decided there, and on indisputable authority, that an equitable assignment is executory whether it purports to be an agreement or a conveyance of the title; and that it is not to be executed in favor of a volunteer against the conjugal rights of the wife. But would a Chancellor withhold his assistance from what this palpably is,—a settlement for the advantage of the wife herself, and in restraint of the husband’s power to squander the fragments of her estate? That it is not for her exclusive bene- fit, but for that of her child also, is no obstacle to the execution of it; for where a provision is ordered out of the equitable choses of a wife,-though the equity which is the foundation of it is inherent in her person, and not a separate ground of claim by her children after her waiver of it or death, the children are nevertheless included. This is a reasonable settlement out of the wife’s own property, on herself and her child ; and it would be a narrow construction of the marital powers of the husband, that would suffer the trust to fail for an omission to reduce the fund into actual pos- session before the execution of the instrument. The decision might'be rested here ; but, as the soundness of the decision in Hartman v. Dawdle is questioned in relation to cases even where there is in fact a valuable consideration, it is perhaps necessary, but certainly proper, to examine the principles started in Hornsby v. Lee, 2 Mad. 16, sustained in Purdew v. Jackson, 1 Russell, 1, and followed in Honner v. Morton, 3 Russell, 65, as it is upon the authority of these cases that the question is made. And this seems the more necessary, as these decisions, not being quotable as prece- dents here, and consequently not being open to the scrutiny of counsel, might other- wise make a false impression on the mind of the profession. The worst consequence of the act to exclude British precedents since a particular period, is, that they some- times pass with the judges for more than they are worth. They are always exam- ined at the chambers of the judges; and the object of the act is certainly not promoted by refusing the party to be affected by them an opportunity to contest their principles. Certainly they ought to have no authority here as precedents, and the inclination of the judges to regard them as such has passed away; but they are entitled to consideration for whatever of reason and sense they contain, and they might in that respect be safely put on a footing with other European decisions. Where, however, they happen to be unfounded in principle, the judges can do no better service to the cause of jurisprudence than by pointing it out. In weighing the arguments in support of these three decisions, then, it will be necessary to try them by their consistency with general principles, and with other decisions of the same Court. In considering the question on the ground of authority, I will first state those dicta, for there was no decision of the point previously to Hornsby v. Lee which might seem to make in favor of the wife. But it is proper to premise, that there is a class of cases, usually brought into the discussion, which are inapplicable to any thing but an entirely different subject, —her claim to a provision out of her equitable choses in action, which, lying originally in the exclusive jurisdiction of the Chancellor, enable him to set what price he pleases on the equitable assistance necessary to the husband 446 COVERTURE. in order to get at them. Of these, the Chancellor may settle a part or the whole on the wife, according to her necessities or his own notions of propriety, though it is to be admitted that the residue, after provision made, is usually disposed of in analogy to her rights over her legal choses. But the right to her equitable choses is founded not on her survivorship, which is a legal title of which she cannot be deprived even by her consent signified in Court, but on the Chancellor’s discretion ; for she may urge it against the husband himself, on what is called “ the wife’s equity ;” and these equitable choses, therefore, differ from her legal choses, which the husband or his legal assignee may recover without equitable assistance, but which, when only equi- tably assigned, require the help of a Chancellor to put the assignee in the place of the assignor. For this last quality, they also are sometimes, but improperly, called the wife’s equitable choses in action; as by Mr. Roper in his treatise on property, though he subsequently considers her equity as appertaining to choses for the recovery of which there is no legal remedy in the husband’s name, or that of any one else, and not to cases in which the assignee is the equitable owner of a legal title. Of this class is Like v. Beresford, 8 Ves. 512, where an assignee, though for value, was post- poned, because there was no legal ownerslfip on either side to control the Chancellor’s discretion. Many others of the same stamp are occasionally brought into the argu- ment, with no other effect than to add entanglement to complexity. I therefore dis- miss them, to turn to those which touch the point more nearly. The earliest of them is the well-known case of Burnett v. Kinaston, Prec. in Ch. 118, in which the Lord Keeper is reported to have said, that, “ if a husband assign a bond of his wife for a valuable consideration, this assignment will not bind the wife if she survive ; for the wife claims paramount.” This, however, was not the point decided, the settlement being in fact a voluntary disposition which is conceded on all hands not to bind the wife, even if it binds the husband; and, beside, the report of the same case in 2 Vern. 401, has no such dictum. The next is White v. St. Barbe, 1 Ves. & B. 405, which contains what might be thought an intimation to the same effect, deducible from the generality of an assertion made by the Master of the Rolls, Sir Witt1am Grant, that the husband can dispose of his wife’s chose in action “ against every one but the wife surviving.” This also was but a dictum; and it will be seen by other dicta of the same able judge that he supposed the generality of the rule might be qualified by the nature of the consideration. These two dicta, with perhaps a doubt thrown out by Lord Harpwicxg, in Ives v. Medcalfe, 1 Atk. 63, and Bush v. Dalway, 1 Ves. Sr. 19; 8 Atk. 880, make up the sum of authority to be brought in aid of the two decisions of Sir Tuomas Prumer in Hornsby v. Lee and Purdew v. Jackson, and that of Lord Lynpuurst in Honner v. Morton, 3 Russell, 65. It has been said that no case can be found in which the contrary was directly decided as to the immediate point of the cause. In Atkins v. Dawbury, Gilb. Eq. 88, it was directly determined that even a voluntary assignment binds the wife ; and, though it is to be admitted that the doctrine was carried beyond the principle which regulates equity in the execution of such agreements, the decision clearly evinces an opinion favorable to the general power of the husband. However, in Bates v. Dandy, 2 Atk. 207, the precise question arose and was decided as the turning-point of the cause. Two mortgages, handed over to the husband of an intestate’s daughter by the administrator, pursuant to an amicable distribution of the estate, were delivered by the husband to one from whom he obtained money, on an agreement to assign them; but they were not legally assigned either by the husband or the administrator. From the opinion of Lord Harpwickg, appended to Honner v. Morton, 3 Russell, 65, it appears the wife was the sister, not a daughter, of the decedent; and that she claimed not through an intestacy, but as one of three residuary legatees, — a differ- ence not material to the question. The husband dead, the assignee brought a bill CAPLINGER v. SULLIVAN. 447 against the wife and the husband’s administrator, to be paid his money or have the mortgage foreclosed; and Lord Harpwicne established his right to the extent of the money advanced, expressly because the husband’s equitable assignment barred the wife’s title to the extent of the consideration. It cannot be said that this is not a case in point, because the Chancellor sustained the wife’s title to the surplus against the husband’s administrator. That barely proves that he executed the assignment no further than there was value to support it, leaving it, as regards the residue, to its legal consequences between the wife and her husband’s representative. ‘The case is undoubtedly in point, and one of the highest authority; in addition to which we have a recognition of the principle by the same judge in Grey v. Kentish, 1 Atk. 280, and Hawkins v. Obyn, 2 Atk. 649; by Lord Kine, in The Duke of Chandos v. Talbot, 2 P. Wms. 608, and Carteret v. Paschal, 3 P. Wms. 200; by Lord Barnurst, in Gay- ner v. Wilkinson, Dickens, 491; by Lord Tuurtow, in Saddington v. Kinsman, 1 Bro. Ch. 61, and Worral v. Marlar, 1 P. Wms. 459 (note) ; by Lord ALVANLEY, in Hewit v. Crowcher, cited in 12 Ves. 175, and Gregg v. Crowcher, id.; by Sir W1x- Liam GRANT, in Mitford v. Mitford, 9 Ves. 100 ; by Mr. Butler, in his note to Co. Litt. 851; by Mr. Roper, Mr. Clancy, and every respectable text-writer without excep- tion. Sir Toomas Prumer considers the dicta in these cases as referring to the husband’s' power to assign his own personal right of reduction into possession, and not his wife’s title ; but they are apparently predicated without restriction of meaning, and contain nothing which would seem to give color to that construction of them. In Grey v. Kentish, Lord HarpwicKe spoke expressly in reference to the husband’s power to assign the wife’s possibility as well as his own. It is true that Mr. Clancy considers an assignment of her possibility or reversionary interests as inoperative, and treats the two decisions of Sir Toomas Piumer as authority for that ; but it will be seen that those interests and her choses presently reducible into possession stand on the very same principle. The American authorities are equally clear for the assignee. The doctrine of Bates v. Dandy is broadly asserted by Chancellor Kewnr in Schuyler v. Hoyle, 5 Johns. Ch. 207; and in his Commentaries, vol. 2, 137, he says, the doctrine is understood to be a settled rule. I presume he means that it is so in this country, for he admits.it to have been disturbed by the recent decisions in England. It is also asserted to be the rule by Chief Justice Savages, in delivering the opinion of the Court of Errors in Udall v. Kenney, 5 Cowen, 597; and by Justice Wasuineton, in Krumbaar v. Burt, 2 W. C. C. 406. These cases, with Hartman v. Dowdel, 1 Rawle, 281, make up the sum of authority to be found in the American books. Of the last it becomes me not to speak further than to say, that I discover nothing in it tending towards the impression received from it by Chancellor Kenv, as expressed in a note to the page of his Commentaries already quoted; that the judge who delivered the opinion of the Court entertained a doubt of the principle even of Bates v. Dandy. However the opinion of the Court may have been expressed, it certainly was intended to rule the cause expressly on the distinction between a vol- untary assignment and one for value. It will be seen, therefore, that Sir Tuomas Puivumer stood single and opposed to every other judge or writer who preceded him ; and to run counter to sucha current of authority for the sake of a theoretic principle would seem to require the principle to be self-evident and its obligation to be irresist- ible. But what is this principle? It is that the law, having declared the marriage to be a gift to the husband of the wife’s choses in action, but on condition that he reduce them into possession during the coverture, is so uncompromising in exacting a performance of the condition as to preclude him from exercising without it not merely a power of his own over any supposed interest of his own, but the wife’s power and dominion over her title, of which the marriage has made him the depos- itory and the instrument; and that though he has incontestably succeeded to her 448 COVERTURE. power and dominion by the incorporation of her civil existence with his, and pos- sesses them, as the representative of her person, as amply and effectively as she pos- sessed them, yet that he cannot exercise them to transfer her title, but only his own incidental and derivative power of reduction into possession, to be exercised by the transferee as he himself might have exercised it during the coverture. This is the entire foundation of the hypothesis; and, if it give way, the hypothesis must give way along with it. Now whatever may be thought of the husband’s succession to his wife’s title before reduction into possession, his succession to her personal power and dominion will not be contested; Sir Wirn1am Buacxstone having said, “ that the chattels which formerly belonged to the wife are by act of law vested in the hus- band, with the same powers as the wife when sole had over them,” proceeds to say that, “this depends entirely on the notion of a unity of person between the husband and the wife, it being held that they are one person in law, so that the very being and existence of the wife are suspended during the coverture, or entirely merged or incor- porated with that of the husband.” 2 Com. 483. If, then, as it is said, he has the same power over chattels that she formerly had, it is not a little singular that the law should have capriciously restricted the exercise of it to a mere reduction of them into possession, when she herself might have transferred her title to them without such reduction. Such a restriction would be merely arbitrary, and destitute of that reason which is said to be the life of the law. It is true the learned commentator adds, that he shall not have her choses in action, “unless he reduces them to possession by exercising some act of ownership over them.”’ Is not a transfer of them, whether legal or equitable, an act of ownership? and do not the expressions of the commen- .tator show that he had in view a reduction into possession not of the thing, but the title to it? This reduction, it seems, may be effected by the husband as the representative of his wife’s power, not merely by the occupancy of the thing, but by any other act which asserts a new and distinct ownership under what was formerly her title. Public policy, founded in convenience and the fluctuation of trade, requires that the dominion over chattels should not be in abeyance; yet it would always be so to some extent, and, in the case of a chose depending on a long credit, might be so for years if the recovery of it were a condition precedent to the vesting of a disposing power over it. To what end make possession of the thing an ingredient in the transfer of the title to it? That it is necessarily so in the transfer of a chose in action, which is a subject of legal assignment, will not be pretended. Yet it seems to have escaped those who maintain the hypothesis that, to carry it out, would require the wife’s survivorship to be sustained even against a legal assignee, — a proposition that would not bear a moment’s examination. The husband’s indorsement of her promissory note passes every vestige of her property in it, as does his assignment of her mortgage, though the mortgaged term be not in possession, or her interest in an elegit sued out on a judgment recovered by her when sole; because all these are assignable at law. Grute v. Locroft, Cro. Eliz. 287; Carteret v. Paschal, 8 P. Wms. 200. And he might undoubtedly pass her interest in a bond, assignable by force of our act of assembly. By that act, a bond expressly payable to assignees may be assigned so as to give an action in the name of the assignee; but, where it contains no such clause of payment, the action must be in the name of the obligee as a trustee. The difference as to the title of the assignee has been hitherto considered as but for- mal; but it would be substantial if a husband could part with as own his wife’s interest in her bond, containing such a clause, and yet be able to part with no more than a naked power without it. For the want of such a clause, the property might be tied up for twenty or more years, if the original credit had solong torun. “When the husband assigns his wife’s chose in action,” asks Sir Tnomas Piumer, “ does the thing assigned continue to be a chose in action, or does it become a personal chattel in CAPLINGER ¥, SULLIVAN. 449 possession? If it does not continue after the transfer to be a chose in action, what makes it cease to be so? A chose in action cannot cease to be a chose in action, but by being reduced into: possession.” No one doubts it; but what has that to do with the husband’s power to transfer it as the representative of his wife’s person? If reduc- tion to possession were at all necessary to the exercise of this power, his questions might be turned against him with irresistible effect. Is u chose in uction the less a chose in action for having been legally instead of equitably assigned? And if reduc- tion into possession, instead of the payment of a consideration, be indispensable in any case to give the assignee the property, why not in that? To escape from the dilemma presented by these inquiries, it is necessary to assert what Sir THomas seems to admit, that an assignment may, in certain circumstances, be a sort of reduc- tion into the possession of the assignee. If by that is meant a possession of the thing, and not of the title to it, the assumption is a monstrous one; and to admit that a reduction into possession of the title is all that the law requires, is to surrender the argument. But granting, for the sake of the argument, that a legal assignment of the title is a constructive reduction to possession of the thing, it is not easy to comprehend how an assignment can be more so when it transfers the legal than when it transfers. the equitable title; or why the wife’s survivorship should be controlled by it in the one case, and not in the other. The truth is, that the notion of the possession of the thing, as a condition precedent to the vesting of the wife’s dominion in the husband as the representative of her person, is one of those things that have passed current in the world for want of attention to detect it. Marriage is in strictness not an immediate gift of the wife’s chattels, whether in possession or in action, though it is so in effect, the suspension of her capacity to exercise a dominion over them, and the transfer of it to the husband as the necessary consequence of the blending of their persons, putting it in his power to assume her title, or transfer it to any one else. Her civil existence enters into and is consolidated with his, so that they form hut one person; but it enters attended with all the individual powers and capacities which before resided in her person separately, to be exercised thenceforth by him,. through whom alone she can speak and act. That he succeeds to all her personal capacity is proved by her marriage when she happens to be an administratrix, which devolves on him the business of the administration, and enables him to act in it with- out respect to her assent or concurrence ; and it is his succession to this capacity that enables him to exercise her personal right of election under our intestate acts, and thus to divest her title, even to her land. But her title to her choses in action continues to reside in her natural person, notwithstanding the transfer to that of her husband of the power necessary to exercise the dominion incident to it; and, on a dissolution of the union, follows her person, or goes to the representative of it, unless it has been divested by the husband while the power to do so resided in him. Her: term for years, in which the marriage gives him an anomalous interest along with her, is an exception to this, and the only one that goes indifferently to either surviv-- ing, in analogy, I presume, to joint tenancy. But to divest her title to her chattels. personal, any act, it will be seen, is sufficient which evinces a present purpose to do so. As regards her chattels in possession, nothing further is necessary to make them his than the possession itself, which, when unexplained by circumstances, is essentially an index of ownership; and of an ownership necessarily exclusive, as she is destitute of capacity to possess them or use them in any other character than that of his agent or servant; consequently, his use or possession of them is to be taken as under the new title which his power may create. It will be seen, however, that even pos- session will not amount to an assertion of title, where it is not intended to have that effect. But it does not follow, because mere occupancy is sufficient to constitute a new title when so intended, that it can be constituted in no other way. Succeeding to 29 450 COVERTURE. the personal capacity of the wife, and becoming the organ of her power, he may dis- pose of the subject of it as she herself might have disposed of it. The inquiry, then, how the assignee of the husband can have any other or better title than the hus- band himself had, will be found to rest on no better foundation than would an inquiry how the grantee of an attorney can have any other or better title than the attorney himself had. The question is pointless when it is considered that the husband is invested with not merely a subordinate attribute of the wife’s owner- ship, —the power of reduction into possession, — but with full dominion over the property ; and that his assignment of it transfers not this subordinate attribute, but whatever she has, by his instrumentality, capacity to part with. That he has such dominion is proved by his power over her choses in action susceptible of legal assign- ment. A legal assignee may indeed sue on his own title, while an equitable assignee cannot, an action at law being maintainable only on ua legal title; and hence Sir Tuomas PLumer seems to consider, as conclusive of the right, that a chose equitably assigned can be reduced into possession by an action, only in the name of the wife. To say nothing of what is manifest at a glance, that the objection, if available at any time, would be equally so in the lifetime of the husband, it is necessary but to remark, that the conclusion rests on the assumption of ground not to be conceded, — that the beneficial interest is inseparable from the legal title. That it is otherwise, is proved by the property which the representative of a deceased partner has in the joint effects, though an action to recover them lies only in the name of the survivor; and from this it may be conceived that the wife’s beneficial interest can pass, though the assignee have no remedy to recover it but by an action in her name. It is the prac- tice of every day to use the name of the original owner, with or without his consent, where the equitable has been severed from the legal title. J am aware that reduction into possession is generally, if not universally, said by text-writers to be a condition of the husband’s ownership; and so perhaps it is, as there is scarce any other means of exercising his general power of disposal so as to transfer the title to himself; at least, such, in a countless majority of instances, is the means pursued. Hence, by a mistaking cause for effect from frequency of recurrence in a particular way, the mind is led to contemplate possession as the criterion of the right, instead of a means of acquiring it. Instances, however, will presently be given of its having been acquired by means short of possession. . But the fallacy consists in taking for granted that the title must be first vested in the husband, to enable him to convey it to another, with- out considering that an authority, uncoupled with an interest, would equally enable him to do so. There are other cases than those of legal assignment which it is impossible to recon- cile to the criterion of possession, or to each other, on a foundation so narrow. I have said that the actual possession of the husband does not bar the wife’s title, where it is not intended to have that effect. In Baker v. Hall, 12 Ves. 497, lfer ownership was not displaced by his receipt as her trustee, because, as it was expressed, “ the husband must be considered as having entered into possession as a trustee and exec- utor of the will, and not as a husband; and therefore the wife’s share of the residue could not be deemed sufficiently reduced into possession, so as to prevent its surviv- ing to her on his decease, and, of course, going upon her death to her representative.” Would it not have been better to say that he did not sufficiently appear to have acted by virtue of the power in him, with a design to make himself master of her title ? That it is not the degree of possession, but the quality and object of it, which is material to the question, is shown by Wall v. Tomlinson, 16 Ves. 418, in which it was said, “that the transfer of the wife’s stock to the husband, merely as trustee, could not be represented asa reduction into possession that would entitle his repre- sentatives, It was made diverso intuitu.” On the same principle is the decision in the CAPLINGER v. SULLIVAN. 451 Matter of Miller’s Estate, Ashm. 323 ; and the cases in Desaussure’s Reports. Thus, we see, it is not the taking of possession — which, though usually an unequivocal act of ownership, may yet be qualified by circumstances — that gives a new direction to the title, but the assertion of a title distinct from, and independent of, that of the wife, of which possession is but evidence. Yet if the act of entering into possession were even the model performance of a legal condition, it would be attended with all the legal consequences of essential performance in respect to the vesting of the title depending on it, without regard to the motive for the entry, whether it were to agree to his own title or disagree to that of any one else. It would seem, therefore, to be actual disposition, inconsistent with the wife’s title, and not the abstract effect of possession of the thing, which is but a specific means of affecting such a disposition, that is the criterion. If actual reduction into possession as husband were the exclusive means of divesting the wife’s title, a husband already in possession as a trustee would be destitute of power to vest it in himself or transfer it to another; for I know of no act to be done as an equivalent. I proceed to instance a few more cases that cannot be reconciled to the criterion of possession. In an action to recover her chose acquired when sole, she must be joined. But she may be joined or not where the chose has come to her since the marriage; and when the husband sues alone the judgment bars her survivorship, because the recovery stands on his title. But even a joint recovery, though apparently on her original title, divests it, and creates a new title in its place, which survives to the one or the other of them, on the principle of joint ownership. Oglander v. Baston, 1 Vern. 396 ; Garforth v. Bradley, 2 Ves. 676. On the same principle is Woodyer v. Gresham, 1 Salk. 116, where the husband and wife had sued out a scire facias, in their joint names, on the wife’s judgment recovered when sole, and had an award of execution, after which the wife died ; and it was held that her original title by the recovery of judgment was sup- planted by the joint award of execution, which of course was held to survive to the husband. Yet there was no pretence of reduction into possession ; for it was admitted that execution could issue but on the original judgment, the award of it ona scire facias not being there, as it is here, a judgment quod recuperet. And in this respect, a recov- ery in chancery follows in its consequences a recovery at law; an order of payment to the husband alone, or to the husband and wife jointly, having the same effect to create a new title and displace the old one. Heygate v. Annesley, 1 Bro. C. C., by Eden, 362; Forbes v. Phipp, 1 Eden, 503. But mere payment into Court without such order will not have that effect, as appears by Phipps v. Anglesea, 1 Fonbl. 89, and M’Cauley v. Phillips, 4 Ves. 15; nor will a decree barely declaring the money to be the property of the husband and the wife. Nanny v. Martin, 1 Ch. Cas. 27; Carr v. Taylor, 10 Ves. 578; and Richards v. Chambers, id. 580. And the reason of the difference seems to be, that an order to pay operates on the title like a judgment which concludes the right, while a decree but declares the right as existing by force of the original title. Now, in all the preceding cases, the judgment or order left the chose specifically outstanding, so that reduction of it into possession was not pretended, yet the title was changed, and undoubtedly by force of the husband’s control of it, through the medium of the Courts ; they consequently evince in him the existence of a disposing power over the wife’s chattels while they are yet in action. ‘That he is the recipient of her power and capacity to act in the disposal of them, is proved by the fact itself that he has power to reduce them into possession ; for if he may exercise an ownership by that means, why may he not by any other which indicates an intent to give effect to his power, or why should the law be supposed to have restrained the exercise of it to one arbitrary mode of action? But the existence of a general power of disposal, inde- pendent of property in himself, is conclusively proved by his undoubted power to release the title to her chattels before they are actually reducible into possession, and ‘ 452 COVERTURE. consequently before he could gain a property in them; which, implying, as it does, the highest grades of dominion, could spring from no other source. But that he has a power to dispose of her chattels independent of a beneficial interest in them of his own, is proved by his power over assets of which she is but the executrix, in which he has no such interest even when in his possession. If, then, he succeeds to the power of disposal that was in her, why may not his sale of her property in action be as effectual to pass the beneficial interest in it as if it were made by herself when sole? Where the legal title has passed, we have seen that objection by her is waived or disregarded ; and where the contract requires the assistance of a Chancellor, it is difficult to imagine an equity on her part to defeat the acts of her representative, in the benefit of which she and her children have participated. It never has been pretended that her survivorship depends on a spe- cific equity, or that it is any thing but a legal title. It is agreed that equity will execute, if for value, an assignment of a legal chose in action against the husband him- self; and if the wife has no specific equity to countervail the equity of the assignee, and by that means give a preponderance to the legal title, there is no reason why the contract should not be executed against her also. An execution of it against the husband is necessarily an execution of it against the wife, because when executed it bas the effect of a legal assignment. Why, then, should there be a difference in sub- stance in the first instance? Iam unable to see why he may part with her property by the one sort of contract and not by the other, as she herself might have done. The fallacy of the doctrine seems to consist in «a notion that the husband’s power extends no further than to the performance, but not in a representative capacity, of certain specific acts in relation to it ; and this notion is rested, among other things, on the restricted operation of assignments in bankruptcy and insolvency, which, how- ever, will be found to rest upon the peculiar principles of an arbitrary system. The spirit of the bankrupt law is policy, not justice. The object being to encour- age trade by procuring payment of mercantile debts out of any fund within the bankrupt’s control, without regard to the interests of others, those laws are deaf to the claim of his family in respect to interests which he has even a naked power to control. Thus the 1 Jac. I. declares that the assignment “ shall bind issue in tail, and all others whom the bankrupt may by a common recovery cut off;” and by the 3 G. IV. made perpetual by the statute called the New Act, it is provided that the assignment shall be equivalent to the execution of 2 general power of appointment to uses, in order to give the estate to the creditors ; and the same spirit dictated the effect origi- nally attributed to it by the Courts, in relation to the wife’s choses in action. Notwith- standing the assignment is not the act of the husband, but of third persons, — of the commissioners in cases of bankruptcy, and of the clerk of the peace in cases of insol- vency ; or, in both cases, more properly of the law which imparts to it and regulates its effect, — it was held to be ipso facto a divesture of the wife’s title, as if it were the husband’s own act and a spontaneous exercise of his power. On abstract principles, it might have seemed that, though the power is a valuable one, yet that the exercise of it pertains, by its nature and origin, to his individual volition, and not to the voli- tion of his creditors or their representatives, who have no moral or expressly legal right to require him to despoil his wife for their benefit. These have no other equity by the bankruptcy than they had before it, and certainly none against the wife, on the credit of whose outstanding property the debt was not contracted. The palpable injustice of these decisions induced Sir Wizt1am Granz, in Mitford v. Mitford, to depart from them toa certain extent, not, however, by taking his stand upon principle and entirely protecting the title of the wife, as it seems to me he ought to have done, but by taking a middle course, and allowing the assignment to pass the incidental right of reduction into possession as the husband had it, and subject to the same CAPLINGER v. SULLIVAN. 458 limitation as to time in the exercise of it. The adoption of this principle, which gives the wife’s title a chance of preservation, is certainly in mitigation of the earlier decisions ; but it will probably be found of little value in practice, as creditors are usually sufficiently prompt to seize upon all that can be brought within their reach. What is more to the purpose, is, that the decree was founded on no analogy drawn from the effect of a spontaneous assignment by the husband; for Sir Witi1am Grant expressly distinguished between an assignment by operation of law, which puts the assignee exactly in the place of the bankrupt, and a particular assignment for a specific consideration, which was admitted by him to pass the wife’s choses in action so as to bar her survivorship. The foundation of the difference cannot be that the assignment of the law transfers but an incipient title ; for, viewing the bankrupt as the owner of an interest, and not as the instrument of his wife’s power, his own assignment could transfer no more. But there cannot be even an inceptive title in him, consistently with the existence of a title in the wife; and what does she ever take by survivorship? Not a new title acquired by the event, but the old title which all along resided in her; the capacity to use it, and not the title itself, being regained by the dissolution of the union. If, then, he had a title, he would have it concur- rently with the wife ; and the property would survive indifferently to either, on the principle of joint tenancy. Yet he is entitled but as her administrator, and can recover her choses in action in no other character. Neither is the difference to be attributed to the want of a valuable consideration ; for the effect of the certificate in releasing his person and future earnings would afford a decisive answer to that. It is evident, therefore, that the learned and able Master of the Rolls founded his judgment, not on the abstract nature of the husband’s interest or power, but on the general scope and tendency of the bankrupt laws, tempered by an infusion of humanity and justice. In our own State the assignment of an insolvent debtor, being his own deliberate act for the recovery of his liberty, and therefore for a valuable consideration, is treated as what it is in fact, —a spontaneous transfer of every interest which he had power to part with. On this principle is Richwine v. Heim, 1 Penn. 873, which may therefore be added to the list of authorities already given. A distinction has been attempted between choses presently reducible, and possi- bilities or reversionary interests. Indeed, Purdew v. Jackson seems to be founded on it, and it is expressly taken in Honner v. Morton; yet it is ingenuously admitted by Mr. Clancy, who adopts it, that the arguments to sustain the assignment as to the one class are equally operative to sustain it as to the other. In fact, no attempt has been made by any one to found it on principle: nor could there be; for the elementary principle relied on in Purdew v. Jackson, or the one brought into view in the present case, would alike dispose of it as to both. If it be conceded, as it seems to me it must, that the husband may release his wife’s possibility if it be capable of taking effect during the coverture, it will follow that his assignment of it would equally divest her title. A power to release — implying, as it does, the highest grade of dominion — can spring from no other source than a general right of disposal. It is in this respect analogous to a general power of appointment to uses, which is equivalent to a limitation in fee, because it enables the donee of the power to give the estate as he. pleases. It would be strange, then, if a source which maintains a power to release were insufficient to maintain a power to assign even a possibility, which hag been an admitted subject of release ever since the determination of Theobalds v. Duffoy, 9 Mod. 102; and, if the wife might have released her possibility, it were equally strange if the husband could not release it for her. But here, again, we are met with an assertion, that whatever has been said of the husband’s power to release is to be understood not of the wife’s title, but of his own contingent interest in it. Whatever is found in the books, however, is clearly predicated of his power over her 454 COVERTURE. possibility, and of his capacity to bar her title. In the anonymous case in 2 Roll. 184, it is indeed said that the husband has an interest which he may release ; but it is evidently an interest in right of his wife, which he may release in right of his wife. The expression of Lord Hott in Gage v. Acton relates expressly to the title of the wife. ‘‘ Where,” said he, “ the wife hath any right or duty which by possibility may happen to accrue during the coverture, the husband may by release discharge it; but where the wife hath a right or duty which by no possibility can accrue to her during the coverture, the husband cannot release it.’’ 1 Salk. 327. It is said by Lord Lynpuurst, in Honner v. Morton, that Lampet’s case, 10 Co. 46, cited’ by Lord Hour for this, ‘does not support the position in the unqualified way in which he states it.” I am unable to see wherefore. The husband released, so as to bar his wife’s survivorship, her contingent or reversionary interest in a term for years dependent on a precedent interest for life, which seems to come entirely up to the point. But it is said, in a note to Purdew v. Jackson, that ‘Lampet’s case lends no support to the position of Lord Horr, because the decision proceeded expressly on the ground that “such possibility of the wife might be extinguished by grant or release to him in possession,” but that “such future or executory interest could not be granted to a stranger during the life of the first devisee.” In a Court of law which recognizes no title but a legal one, it would have been strange had it been held other- wise ; and the same remak is applicable to the passage from Sheppard’s Touchstone. But Lampet’s case, in fact, does support Lord Horz’s assertion to the very letter; for he spoke not of the husband’s power to grant, but to extinguish. He is also fully. sustained by Mr. Butler, Co. Litt. 351 u, note 304. It is true Lord Horr was in a minority as regards the point of the cause; but the distinction taken by him is in striking coincidence with the position of the majority, that the intermarriage of an obligor with the obligee suspends, but does not extinguish, a bond payable after the expiration of the coverture. Why does it not? Evidently because there is no greater union of person and consequent absorption of the wife’s existence in regard to such a bond than there is in regard to a contingency or possibility that cannot happen or take effect during the coverture; and the wonder therefore is that the principle of Lord Horr did not conduct him to the conclusion reaclied by his brethren. But, as regards all beside, this union, which vests in him all the personal capacities and powers of the wife, gives him the capacity and power to do whatever she could do were she sole. And this principle not only reconciles the cases to each other, but relieves us from the awkwardness of explaining them on principles essentially differ- ent, by sometimes adopting the notion of a fictitious reduction into possession, and sometimes rejecting even the circumstance of actual possession. Ifthe husband is taken to be the depositary of his wife’s power, but not of her title except when inci- dentally acquired by an exercise of that power, there will be no discrepance of prin- ciple or decision whether as to choses presently reducible, reversionary interests, or bare possibilities ; for the question in respect to each of them will be brought to this: Does w contract of assignment for valuable consideration, entered into by a feme through the agency of her legal representative, bind her in a Court of equity? Iam of opinion that it does, and that the distinction attempted between vested and con- tingent interests ha no place in our law. Independent of this, there is an ingredient in this case which seems to Oppose an insuperable barrier to the title of the second husband. Had actual payment been made to the first, the validity of his assignment could not have been contested; and if the trustees standing in his place are to be treated as possessed under the trust, there is‘an end of the question. On what ground is their possession as trustees to be disputed ? To have handed the money across the table as guardians, in order to receive it back as trustees, would have been a useless and an idle ceremony. Where the same hand is to ARRINGTON v. YARBROUGH. 455 ARRINGTON v. YARBROUGH. (1 Jones, Eq. 72. Supreme Court of North Carolina, December Term, 1853.) Reduction of Wife's choses in action by Assignment ; Survivorship. — A wife who survives her husband is entitled to her equitable choses in action, that have not been reduced to possession by her husband, or by his assignee during the coverture, notwithstanding he may have assigned them by deed bona fide, and for value. Cause removed from the Court of equity, of Franklin County, at Fall Term, 1853. The bill was filed by the plaintiff, as the administrator of Frederick Battle, alleging that certain questions were raised between his widow and her children and others claim- ing under them, that made it unsafe for him to distribute the estate. He alleges particularly that the distributive share to which his daughter Mary Ann would be entitled, was claimed by James S. Yarbrough, by virtue of an assignment of her late husband, Thomas E. Yarbrough, who had given him notice of pay and to receive, the transfer is made by operation of law ; as where the obligee makes the obligor his executor, the debt is presently assets, because, though the action is gone, the making of him executor amounts not to a legacy, but payment and a release. Needham’s case, 8 Co. 186; Wankford v. Wankford, 1 Salk. 306. So in the Trustees of Jacobs v. The Executors of Jacobs, not yet reported, it was held that executors who were also trustees of a legacy possessed it in the latter character; and in Fryer v. Gildridge, Hob. 10, where the obligor had made the executrix of the obligee his executrix, the debt was held to be presently paid by way of retainer, so that no new action could be had for it, because a personal right of action once suspended is gone for ever. To the same effect is Griffith v. Chew, 8 Serg. & Rawle, 17, and Thomas v. Thompson, 2 Johns. 473. Were it necessary to resort to it, this last principle would be decisive ; for it will not be pretended that the first husband could have maintained an action against the terms of his own deed, and it is plain the wife could not have sued separately, by reason of the disability incident to her coverture. Had this deed been executed by the trustees, we should have had an ordinary case of extinguishment by the substitution of one security for another, on the latter of which a suit might have been maintained at law, just as it might be maintained on a bond for performance of the trust. But though there is no covenant for such performance, it is sufficient to give a remedy in equity that a trust has been declared. It is con- ceded that the trustees assented to the assignment; but that is not material, inasmuch as equity never suffers a trust to fail for want of a trustee, it being said, 1 Mad. Ch. 458, that, where the trustees decline to act, the trust devolves on the Court. On every ground, therefore, I am of opinion the settlement is a valid one, and that the decree be affirmed. Decree affirmed. (a) This case is cited by the Court in the fol- lowing cases: 5 Whart. 142, 242; 7 W. & S. 169; 4 Barr, 889; 5 Barr, 263; 3 Harris, 499; 9 Harris, 250; 11 Harris, 468; 7 Casey, 233; 9 Wright, 529; 4 Smith, 482. 456 COVERTURE. his claim, and warned him not to pay the same to Mary Ann, but demanded the same for himself. The bill also alleges that Thomas E. Yarbrough, and his wife, Mary Ann, had been advanced in certain slaves mentioned in the bill, in the lifetime of the intestate; and he prays the advice of the Court, and asks that the several parties may state their titles and interplead with each other, and litigate their opposing claims, to the end that justice may be done to each, and the plaintiff saved harmless in distributing the estate of his intestate, and that an account may be taken of his administration. "James S. Yarbrough and William H. Battle, administrator of Thomas E. Yarbrough; Mary Ann Yarbrough, widow of Thomas E. Yarbrough; Temperance Battle, the widow of Frederick Battle ; and the rest of the children of Frederick Battle, — were made parties defendant. Subsequently to the commencement of the suit, Mary Ann Yarbrough intermarried with James C. Green, who was made a party defendant with his wife. The answer of James 8. Yarbrough states specifically, and at large, the nature and consideration of the assignment made to him by Thomas E. Yarbrough, and insists that it was bond fide and for value. Mary Ann Yarbrough (now Green) admits the negroes put into possession of her former husband, Thomas E. Yarbrough, to have been advancements, and submits that the estate of her father shall be allowed for the same, out of her share; also, that she and her husband were further advanced in cash, horses, cattle, and other articles of personal property, of which she states the value. She denies the equity of the claim set up by James S. Yarbrough, and says that it was either given as a security for a very small sum, or was obtained by fraud and imposition from her Husband, or to act as a power of attorney; and, as to that not reduced to possession by her husband in his lifetime, she claims the same by survivorship, notwithstanding the assignment of her husband, the said Thomas E. — The answer of W. H. Battle, the administrator of Thomas E. Yarbrough, claims the unrealized part of Mary Ann’s distributive share of her father’s estate, in his representative character, and insists that the assignment thereof was intended as a mere au- thority to enable him to settle with the administrator of the father-in-law. He alleges that the negroes put in the possession ARRINGTON v. YARBROUGH. 457 of Thomas E. Yarbrough and his wife, though intended at first as advancements, were subsequently divested of that character, by being conveyed by deed to the children of Thomas and Mary Yarbrough (which deed is filed), and he insists that the distribu- tion shall therefore take place, with such part subducted from the mass of Frederick Battle’s estate. The answer of Mrs. Temperance Battle, the widow of Frederick, explains this part of the transaction, and alleges it as intended to cover the property from the creditors of Thomas, and done at his instance and that of his wife Mary Ann, and insists that these negroes shall be treated as advancements, and accounted as part of their distributive share. There was replication and commission, and much proof taken in the cause; but, as the view taken of the case renders the con- sideration of it unnecessary, it is for that reason omitted. Moore, for plaintiff. Miller, Lanier, and Winston, for defendants. Bartz, J. It is now a well-established principle of equity, that, if a married woman became entitled during her coverture to a legacy, or to a distributive share of an intestate’s estate, and her husband die without having reduced it into possession, or done any thing equivalent thereto, the wife will be entitled to it, and may recover it to her own use. Garforth v. Bradley, 2 Ves. Sen. 675; Carr v. Taylor, 10 Ves. Jr. 578; Schuyler v. Hoyle, 5 Johns. Ch. 196; Revel v. Revel, 2 Dev. & Bat. 272; Hardie v. Cotton, 1 Ired. Eq. 61; Poindexter v. Blackburn, id. 286; McBryde v. Choate, 2 Ired. Eq. 610; Rogers v. Bumpass, 4 Ired. Eq. 885; Weeks v. Weeks, 5 Ired. Eq. 111; Mardree v. Mar- dree, 9 Ired. 295. Should the legacy or distributive share not be paid or delivered over to the purchaser by the executor or ad- ministrator, he cannot recover it at law, either in his own name or in the names of himself and wife ; but must proceed, in the names of himself and wife, by a bill in equity, or by a petition in a Court of law in the nature of a bill in equity, under the fifth section of the 64th chapter of the Revised Statutes, entitled, ‘An Act concerning filial portions, legacies, and distributive shares of intestates’ estates.” If the husband die, leaving his wife sur- viving after bill or petition filed, but before decree, the legacy or distributive share will survive to the wife. Bond v. Simmons, 3. Atk. 21; Adams v. Lavender, 1 Mc. & Y. 41. Such, it seems, 458 COVERTURE. would be the result if the husband died even after a decree, but before it was put in execution. Nanny v. Martin, 1 Eq. Cas. Abr. 68; McAulay v. Philips, 4 Ves. Jr. 15. Notwithstanding the opinion of Lord Tuurtow to the contrary; Heygate v. An- nesley, 3 Bro. Ch. Cas. 362. These authorities clearly show, that, upon the death of Thomas E. Yarbrough, the first husband of the defendant, Mrs. Green, her distributive share in the estate of her deceased father, Frederick Battle, survived to her, unless her right to it was defeated by the assignment under whieh the defendant James S. Yarbrough claims it. A very important question arises, whether that assignment, supposing it to be bond fide and for a valuable consideration, did have that effect. We have considered the subject with much attention, and with an anxious desire to come to a correct conclusion upon it, and an examination of all the cases to which we have access has satisfied us, that in England it is now settled, upon principle and authority, that a husband cannot assign, even for value, a greater interest.in his wife’s equitable choses in action than he has himself; that is, the right to reduce them into pos- session during the husband’s life, subject to the contingency of their surviving to her, should the assignee not have done so in the lifetime of the husband. We are aware that an impression has prevailed in this State that a different rule has been estab- lished here. We are aware, further, that the impression alluded to has apparently the sanction of several dicta of our judges ; but, as neither the industry of the counsel for the assignee, nor our own researches, have enabled us to find a single adjudicated case in opposition to the English rule, we feel ourselves not only at liberty but bound to adopt it, as being more just and better sup- ported by principle than the one for which the counsel con- tends. In England, the nature and extent of the interest of the husband in his wife’s equitable choses in action, and of his power of disposing of them, have for a long time occupied the attention of the Court of Chancery. At first, the subject did not seem to have been well understood even by the ablest equity judges, and hence we find among the earlier, and even among some of the later, cases, conflicting dicta, as well as opposing decisions. We do not deem it necessary to review the cases in detail, be- cause it has been so recently and ably done by Mr. Bell, in his work on the Law of the Property of Husband and Wife, book 3, ARRINGTON ¥. YARBROUGH. 459 ce. 2, § 8 (67 Law Lib. p. 62). The doctrine now established is well summed up by Mr. Adams, in his Doctrine of Equity, p. 142: “Tt has been contended that a husband’s assignment of his wife’s choses in action should exclude the wife’s right by survivorship, on the ground that such an assignment implies a contract to reduce the chose into possession, and is equivalent in equity tosuch a reduction. ‘“« This proposition was first overruled in respect to bankruptcy, and it was decided that whatever might be the right of purchasers for value, the assignees in bankruptcy were entitled to no such equity. It was next overruled as to all assignments, although for valuable consideration, if the chose were reversionary, and therefore incapable of present possession; leaving the question still open whether, if it were capable of immediate possession, or became so during the coverture, the wife should be excluded. “The principle is now extended to all cases, and it is held that, although the husband’s contract for value may, as between himself and the assignee, be equivalent to a reduction into pos- session, yet, against the wife, who is-no party to the contract, it cannot have that effect.” For these positions, the author refers to several late cases, which we find, so far as we have the books at hand to examine them, to be apposite to the purpose for which they are cited. It is worthy of remark, too, that no cases to the contrary are referred to by the editors (Messrs. Ludlow and Col- lins) of the second American edition. Indeed, the learned editors have not subjoined any note to the page upon which these proposi- tions are found. We come now to the examination of cases which are supposed to have established a contrary doctrine in this State. The first in the order of time is Knight v. Leak, 2 Dev. & Bat. 183. That was the case of a vested legal remainder in the wife in a slave, which the Court held might be sold by the sheriff under execution against the husband, because he had the right to sell it himself, and thereby completely to transfer it to the purchaser. In arguing, the Court said: We understand the effect of an assignment by the husband of his wife’s equitable interest in a chattel in which she has not the right of immediate enjoy- ment to be different; for such assignment would not prejudice her right, should he die before her and before the period allotted for such enjoyment to take effect. Hornsby v. Lee, 2 Madd. 16; Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65. 460 COVERTURE. The next is Poindexter v. Blackburn, 1 Ired. Eq. 286. There a legacy was given to the wife, which had not been received by the husband nor disposed of by him in his lifetime ; and the Court decided that it survived to her, saying, “‘ A legacy given to a married woman, or a distributive share falling to her during cov- erture, and not received by the husband nor disposed of by him in his lifetime, survives to the wife.” Howell v. Howell, 3 Ired. Eq. 522, which came before the Court upon a bill for a writ of sequestration, was the case of a bequest of a female slave to one for life, remainder over to a married woman, and the executor assented to the legacy, and the husband afterwards sold the slave. The Court decided, as they had often done before, that the assent of the executor made the remainder a vested one; and they then go on to show that “Jesse Spurling (the husband) had such an interest in the woman Jude and her children as enabled him to sell and convey them, and that his vendee ac- quired by his purchase, the transaction being freed from other objections, a complete title ; and that Mrs. Spurling (the wife) had no interest in them, and consequently no claim to the aid of this Court. We are not unapprised that, in some recent cases in the English Courts of Chancery, this doctrine is denied as a principle of equity. Such, we consider, however, as the settled law of North Carolina. In Rogers v. Bumpass, 4 Ired. Eq. 385, the Court decided that, where the husband gave his bonds to the administrator of the father of his wife, of whose estate she was a distributee, the bonds being given for certain purchases made at the administrator’s sale, and also for money lent to him out of the funds of the estate, there being no agreement that these were to be regarded as payments of the distributive share of the wife, the wife, after the death of her husband, was entitled to recover the whole of her distributive share. In coming to this conclu- sion, the Court said: “A debt, legacy, or distributive share of the wife is under the control of the husband, so far as to enable him to release, assign, or receive them. His release extinguishes them, and the collection of the money vests it in him as his absolute property. But if, in his lifetime, he neither releases, conveys, or receives her choses in action, but leaves them out- standing, they belong to the surviving wife.” The case of Weeks v. Weeks, 5 Ired. Eq. 111, was that of an expectant legal interest of the wife not assigned by the husband in ARRINGTON v. YARBROUGH. 461 his lifetime ; and the Court said: “ Although the husband may as- sign orrelease his wife’s choses in action, or convey them during the coverture, they undoubtedly survive to her or her representative.” In Mardree v. Mardree, 9 Ired. 295, the Court said: ‘* A distrib- utive share accruing to the wife during the coverture does not vest in the husband, but will survive to the wife, unless received into possession by the husband.” They held, however, upon the particular circumstances of the case, that the husband had reduced his wife’s distributive share into possession, and consequently that it belonged to him. From this review of the cases to which our attention was called by the counsel, and some others which we met with ourselves, it manifestly appears that there is not one in which it has been adjudicated, that the husband’s assignee, for value of his wife’s equitable choses, can claim them against the sur- viving wife. Some of the expressions used by the Court, which we have quoted, may seem to imply that such was the opin- ion of the judge who decided them; but even as dicta they may well be regarded as enunciations of a general rule, without its being deemed necessary to advert to the exception to or modification of it. The cases mainly relied upon by the counsel to establish the position for which he contended, were Knight v. Leake and Howell v. Howell. In the first of these, the dictum shows only what we admit, that the assignment by the husband of his wife’s equitable interest in a chattel will not prejudice her right, should he die before her and before the period allotted for such enjoyment to take effect; but it does not pretend to go further, and say what would be the rule should the husband die before the wife, and after the period allotted for her enjoyment to take effect. The propositions are distinct, and have both been decided in favor of .the wife in England, and we can see no good reason for holding here, that the admission of one of them in favor of the wife necessarily implies the rejection of the other. In the other case of Howell v. Howell, we do not know that we understand what the Court meant when they said: ‘“ We are not unapprised that, in some recent cases in the English Courts of Chancery, the doctrine is denied as a principle of equity.” What doctrine? and what was intended by the Court when they said, further, ‘Such, however, we consider as the settled law of North Carolina.” We certainly can find nothing in what 462 ’ COVERTURE. precedes or what follows these sentences to make out more than a mere conjectural dictum, that the doctrine for which we con- tend was disavowed. There are one or two other very recent cases which may seem to militate against the English principles to which we have referred; but which certainly are not adjudi- cations against it, and may, we think, be shown to be consistent with it. In Allen v. Allen, 6 Ived. Eq. 239, it was held that in this State a wife has no right, either as against her husband or his assignee for value, to have a provision made for her by a Court of equity out of a distributive share accruing to her during her coverture. And, further, that the husband is not at liberty to make a voluntary disposition of such distributive share, even in trust for his wife, so as to prevent it from being liable to his creditors. The first part of the decision, relating to what is called the wife’s equity for a settlement, had been made before, in Bryan v. Bryan, 1 Dev. & Bat. Eq. 47, and Lassiter v. Dawson, 2 Dev. Eq. 383. It is admitted to be in opposition to the rule well settled in the English Courts of Chancery, and adopted by most of the States of this Union. The policy of our rule is very fully discussed and ably vindicated by the Chief Justice Rurriy, who delivered the opinion of the Court in Allen v. Allen, and it is not now to be questioned. The doctrine for which we contend is not at all opposed by the latter proposition decided in that case, but is rendered in some degree necessary by the first. We do not deny that the husband, or assignee of the hus- band, in his lifetime, may reduce the wife’s equitable choses in action into possession, and thus make them his own; so may the creditors, and to that extent only goes the decision of which we are speaking, as well as the subsequent one in Barnes v. Pearson, 6 Ired. Eq. 482. The wife cannot resist the attempt of her hus- band, his assignee for value, or his creditor, to get possession of the legacy or distributive share accruing to her during coverture, and thus deprive her of it. If the husband die before he succeeds, the wife’s right survives to her. What good reason is there why the same result should not follow from his dying before his as- signee or his creditor had succeeded in his attempt? Why should the husband be able to transfer to another a greater right or inter- est than he has himself? We deprive by our rule the wife of her equity for a settlement; why go further, and deprive her also of her benefit of the right of survivorship in her own property ? ARRINGTON v. YARBROUGH. 463 It is by no means a consoling answer, to tell her that our law provides handsomely for her out of her husband’s estate. That may do very well where the husband has any thing to leave, but is but mockery when he dies greatly indebted or insolvent. Let us ponder for a moment and inquire, whether there is any fixed principle of equity which must of necessity operate so harshly against the right of the wife in such cases. In deciding Honner v. Morton,! ubi supra, Lord LynpHurstr threw out a dic- tum, that equity considered the assignment of the husband as amounting to an agreement that he would reduce the property into possession ; it likewise considered what the party agreed to do as being actually done, and, therefore, when the husband had the power of reducing the property into possession, his assign- ment of the chose in action would be regarded as a reduction of it into possession. Principles of equity are, or ought to be, founded upon the most refined and exact principles of justice ; they ought to be as near as human frailty will permit the very elements of justice itself. Now we cannot see any justice in the principle, that while the husband cannot himself acquire the wife’s equitable choses in action without reducing them into possession, he may by a mere agreement in favor of an assignee for value produce such a result. We cannot see the justice, refined or otherwise, of the Court of equity not only assisting a purchaser to aid the husband in depriving his wife of her rights, but act- ually resorting to a sort of magic to do it at once, instantaneously, by a mere agreement to which the wife is no party. We are, there- fore, not surprised to find that such a doctrine could not commend itself to the enlightened mind of Vice-Chancellor CHaDWICK, in the case of Ellison v. Elwin, 18 Sim. 209; of Vice-Chancellor Bruce, in that of Ashby v. Ashby, 1 C. M. 553; and of the judges in the other cases referred to by Mr. Adams. Our conclusion is, that the wife’s right to her distributive share of an intestate’s estate survives to her, if not reduced into possession by the husband or his assignee for value in his lifetime. It must therefore be declared in this case, that neither the defendant Yarbrough nor the defendant Battle, as the administrators of Thomas E. Yar- brough, deceased, are entitled to the distributive share of the defendant, Mrs. Green, in her father’s estate. 1 See ante, note (1) p. 421. 464 COVERTURE. The only question which remains to be considered is, whether the slaves which were put into the possession of the first husband of Mrs. Green by her father, are, under the circumstances stated in the pleadings, to be charged against her as advancements. From the difficulty which might otherwise have attended this question, we are relieved by her fair and candid answer. She admits that they were intended by her father’ as advancements to her, and she submits that they may be charged against her by the administrator of her father in the distribution of his estate. The plaintiff is entitled to a decree to have an account taken of his administration of his intestate’s estate under the direction of the Court, and that he may settle with the parties entitled to distributive shares in the same, upon the principles above set forth. The costs of the plaintiff will be paid out of the estate of the intestate. Except, perhaps, in the case of negotiable paper, which stands upon peculiar grounds of policy, it seems agreeable to reason, if not with the weight of authority also, that an as- signor can convey no greater rights than he possesses himself, and that the assignee of the wife’s choses in action (other than negotiable paper), stands in the husband’s shoes, and possesses no greater rights than he did at the time of the assignment; and that there- fore, unless in fact reduced to posses- sion by the assignee during the covert- ure, the wife’s rights as against the assignee, both in respect to her equity for a settlement as well as survivor- ship, are the same as she had as against her husband; and this whether the as- signment is to a particular assignee for a valuable consideration, or whether it is voluntary or general. This doctrine seems, at length, to be well settled in England. See Scott v. Splashett, 3 Maen. & G, 603,604; Ashby v. Ashby, 1 Collyer, Ch. 553; Rogers v. Acaster, 14 Beav. 445; Marshall v. Gibbings, 4 Irish, Ch. 276; Elwin v, Williams, 12 Law J. Ch. n. 8., 440; 7 Jur. 337; Michelmore v. Mudge, 2 Giff. 188 ; The other parties will pay their own costs. Decree accordingly. Ellison v. Elwin, 18 Sim. 317; Hutch- ings v. Smith, 9 Sim. 137; Proale »v. Soady, 3 L. R. Ch. App. 220. See also Crook v. Turpin, 10 B. Monr. 244; Lynn v. Bradley, 1 Met. (Ky.) 232; George v. Goldsby, 23 Ala. 326; State v. Robertson, 5 Harring. 201; 2 Story’s Eq. Jur. § 1412, and notes; 1 Bish. Mar. Wom. § 145 et seqg.; 3 Lead. Cas. in Eq. *659 ef seg. See also Bryan v. Spruill, 4 Jones, Eq. 27; Bugg v. Franklin, 4 Sneed (Tenn.), 129; Honner ». Morton (ante p. 418), and notes. It is admitted that there are in the United States many cases and dicta (constituting, perhaps, the weight of authority) opposed to the above doc- trine, and holding an assignment for a valuable consideration of the wife’s choses in action, capable of immediate re- duction to possession, to be a bar to her survivorship. See Needles v. Needles, 7 Ohio St. 437 (ante, p. 429); Browning v. Headley, 2 Rob. (Va.) 370; Weeks v. Weeks, 5 Ired. Eq. 111; Barnes v. Pearson, 6 Ired. Eq. 482; Schuyler ». Hoyle, 5 Johns. Ch. 207, 210 (ante, p- 357) ; Matheney v.Guess, 2 Hill, Ch.63; Hill », Townsend, 24 Tex. 575; Smith v. ARRINGTON v. YARBROUGH. 465 Atwood, 14 Geo. 413; Dixonv. Dixon, Lynn v. Bradley, 1 Met. (Ky.) 282; 18 Ohio, 115; Richwine v. Heim, 1 Tuttle v. Fowler, 22 Conn. 58;! Bing. Penn. 373; Siter’s case, 4 Rawle, 468 on Inf. & Cov. (Bennett's ed.) *213, (ante, p. 443); Woelper’s Appeal, 2 note (9), and cases cited. Penn. St. 71; Tritt v. Colwell, 31 Penn. But, upon principle, the doctrine first St. 228; Webb’s Appeal, 21 Penn. St. stated seems preferable. 7 248; Smilie’s Estate, 22 Penn. St. 130; Some cases make a distinction be- 1 As this case is a well considered one both pro and contra (see dissenting opinion of Waite, J.), it is herewith given in full : — . Turis was an action of assumpsit, brought in the names of Enos T. Tuttle and Eliza- beth D., his wife, to recover the amount of a promissory note not negotiable, given to the said Elizabeth D., on the 1st day of January, 1848, while she was sole and unmarried. The defendant pleaded the general issue, with notice that, under such issue, he would offer to prove that, at the January term of the Superior Court in 1850, the said Elizabeth D. was lawfully divorced from the said Enos T., and that since the granting of such divorce and while sole and unmarried, by a full and sufficient dis- charge and release under her hand and seal, she had released and discharged unto the defendant, for a valuable considefation, the note and all other causes of action, for which the plaintiffs claimed to recover in this suit ; and that the plaintiff, Enos T. Tuttle, was prosecuting sqid suit, without the consent of said Elizabeth, and against her mind and will. The cause was tried at New Haven, October term, 1850. On the trial it was admitted that the note described in the declaration had been executed by the defendant to Elizabeth D. Tuttle, one of the plaintiffs, before her marriage with Enos T. Tuttle, the other plaintiff; that, down to the time of the marriage in September, 1849, said note remained her absolute property ; and that the plaintiffs,. upon the petition of said Enos, were divorced by the Superior Court at its January term, 1850. The defendant then introduced evidence tending to prove, and claimed that he had proved, that, after the plaintiffs had been divorced, the said Elizabeth, by an instrument sufficient for that purpose, under her hand and seal, released and dis- charged the defendant from the payment of the note in suit. The plaintiffs intro- duced evidence tending to prove, and claimed that they had proved, that, before said divorce was granted and before this suit was commenced, the said Enos had assigned said note, for a full and valuable consideration, to Zerah P. Tuttle, with due notice to the defendant of said assignment; that the defendant had taken said release with full knowledge of said prior assignment, and that this suit was brought and pros- ecuted for the sole benefit of said assignee. The defendant then introduced evidence tending to prove, and claimed that he had proved, that, before said assignment was made, the said Enos had determined to obtain said divorce, and at the same time had resolved to reduce to his possession the note aforesaid ; that he had taken steps to accomplish both these purposes; that payment had been demanded by him of the per- son claimed by him to be the defendant’s agent, and such payment had been refused ;. that said Zerah P. Tuttle, knowing all the facts aforesaid, and knowing that the petition for divorce either had been brought ot was immediately to be brought, pur- chased and sued said note in contemplation of the divorce. And the defendant claimed, and asked the Court to charge the jury that, if they should find said release to have been executed by said Elizabeth to the defendant, as claimed by the defendant, and should also find said assignment with due notice to the defendant, as claimed by the plaintiffs, then, — 1. If the assignment was in fact a sale, and not a sham, — yet if the assignee pur- chased the note, as claimed by the defendant, in contemplation of the divorce, and with the expectation of reducing the chose to his possession, after the termination of 30 466 COVERTURE. tween the wife’s equity to a settle- that her equity to a settlement will ment and her survivorship, holding attach as against an assignee in law, or the coverture, and not before, — he had no equitable title to relief against the legal effect of the release, and hence the plaintiffs cannot recover. 2. Even if the assignment was made in good faith for a valuable consideration, and not in contemplation of the divorce, it could not defeat the wife’s survivorship. 3. And the defendant further claimed, and requested the Court to charge the jury, that even if they should find no release to have been executed as aforesaid by said Elizabeth, and even if the wife’s survivorship was defeated by said assignment, still, upon the facts admitted by the plaintiffs, as aforesaid, a recuvery could be had in this ac- tion by these plaintiffs, the wife having now the sole and absolute legal title to the note. The Court did not charge the jury ‘in accordance with either of the defendant’s said claims; but charged them that, if said assignment was not a sham, but was in fact and in truth a sale of said note, for a full and valuable consideration, to said assignee, and if, before the execution of said release, the defendant had full knowl- edge that said assignment had been made, then the assignment would be a good defence against said release ; that it was of no consequence if the motives of the par- ties to said assignment, in the making of it, were as claimed by the defendant, pro- vided it was in fact and in truth no sham, but a sale for a valuable consideration, as aforesaid; and that, even if said assignee did purchase the note in contemplation of the divorce, nevertheless said assignment would be a good defence against said release, and the plaintiffs must recover in this suit. As to the third objection aforesaid, the jury were instructed that the action could be maintained, notwithstanding the divorce, by Zerah P. Tuttle, the assignee, by virtue of the statute law, if they found he was.a real bond jide purchaser, and had given notice to the defendant before the said release, as he claimed to have proved. The jury having found a verdict for the plaintiffs, the defendant thereupon moved for a new trial for a misdirection. Hinman, J. This was an action in the names of husband and wife, plaintiffs, on a note given to the wife betore marriage. It was originally brought, and is still pros- ecuted, by the assignee of the husband. Since it was brought, the plaintiffs have been divorced ; but the previous assignment was made in good faith, and for a valu- able consideration. It also appears that, since the divorce, the wife has discharged the note. There is no doubt that a divorce is tantamount, in its effect upon the wife’s property, to a dissolution of the marriage by the death of the husband. Starr v. Pease, 8 Conn. 541; 10 Conn. 225. Hence the question arises, whether a bond fide assignment of the note in suit for a valuable consideration, made by the husband during the marriage, is such a reduction of it to his possession as will operate to defeat the wife’s right of survivorship. The marriage did not vest the title to the note in the husband. “In regard to her rights in action,” says Lord Corks, “as debts by obligation, contract, or otherwise, the husband shall not have them, unless he and his wife recover them, and this has always been the law.” What, then, will amount to a recovery of the wife’s chose in action; or, in other words, what is such a reduction of it to the possession of ‘the husband as will deprive the wife of her right of survivorship? This has never been judicially settled in this State. Judge Swirt, however, says in his Digest, 25, that a specific assignment of a particular chose in action, for a valuable consideration, will prevail against the wife’s right ; but a gen- eral or voluntary assignment, if the assignor has not reduced it to his possession, will not bar her right if she survive; and he cites Newland on Cont. 186, in support of the doctrine. At is true some modern English cases do not support this proposi- tion ; still, we think it not only reasonable in itself, but it may fairly be said to result ARRINGTON v. YARBROUGH. 467 even as against an assignee fora valua- action. See Udall v. Kenney, 3 Cow. ble consideration of the wife’s choses in 590 ; Kenney v. Udall, 5 Johns. Ch. from an established principle of long standing, and is also supported by the older authorities. In 2 Atk. 208, it was held that the husband might release the wife’s bond, and that it made no difference whether he had received the money on it or not. And so in Chamberlain v. Hewson, Salk. 115, it was held, that he might release costs adjudged to her, in a prosecution she had carried on in the spiritual Court. And in Gray v. Acton, Salk. 826, C. J. Hour, said, that “ Where a wife has any right or duty which by possibility may accrue during coverture, the husband may release it.” Authorities to this effect are very numerous, and are collected in Clancy, 110; 1 Roper 227; and 2 Kent’s Com. 184. Now, while it is admitted that the husband has power to release the wife’s debt, it is still insisted that he cannot assign it so as to defeat her right to it if she survive him ; and the reason given for this is, because he can convey no greater right to his assignee than he had himself. But this reason is as applicable to a release as to an assignment. We can see no more impropriety in allowing him to convey a greater right than he possesses, than there is allowing him to discharge an obligation which does not belong to him; a reason which is so extensive in its operation ought not, we think, to be relied upon. But the older authorities support the proposition of Judge Swirr; and Chancellor Kent says: “ It is understood to be the rule best sustained by authority.” 2 Kent’s Com. 187. In Bates v. Dandy, 2 Atk. 207, it was held that the husband’s agreement to assign the wife’s mortgages, where a valuable consideration had been given, was valid, and could be enforced in equity to the extent of the consideration against the claim of the wife as survivor, as well as against the representatives of the husband; and the case was put upon the ground of the husband’s power to make the assignment for his own benefit. See also Carteret v. Paschal, 3 P. Wms. 197. We are aware that the cases of Purdew v. Jackson, 1 Russ. 70; Honner v. Morton, 8 Russ. 65; and some others, go upon the ground that a husband can convey no greater right than he has himself ; but we cannot yield to their authority or to the reasoning on which they are founded ; and while we do not adopt all the views of C. J. Gisson in Siter and another v. Guardian of Jordan, 4 Rawle, 468, we still think that, as applicable to this case, the result of his reasoning is the more correct. - We do not say, as seems to be the opinion of Gipson, C. J., that a mere intention of the husband to reduce a chose in action to possession is sufficient to bar the wife’s right. Such a principle, leaving the point to depend upon the mere volition of the husband, would be found to be too difficult for practical application. If this is true anywhere, we think its application should be limited to such choses in action as accrue to the wife during coverture; and as with us these for the most part vest absolutely in the husband, the rule would have very little application here. Besides, we think it is not the true rule (see Scarpellini v. Atchinson, 53 E. C. L. 864), and has, obviously, no application to the case under consideration. In regard to cases of this sort, we have no doubt the hus- band must have made the debt available for his own use, in order to deprive the wife of her right of survivorship. But we cannot see why a reduction to possession is not as effectually accomplished by a bond jide sale and assignment for value as it would be by collecting the money of the debtor. In both instances, the husband has obtained all that the debt was capable of producing. On his receiving value for his assignment of the wife’s debt, he has, so far as he is concerned, reduced it to his possession ; and his dying or divorce ought not to deprive the assignee of the fruits of his purchase. It seems to us to be a mere question of power in the husband, as the only agent hav- ing authority to control and dispose of the property after the marriage; and this ig 468 COVERTURE. 473 ; Haviland v. Myers, 6 Johns. Ch. 178; Mumford v. Murray, 1 Paige, 25; Haviland v. Bloom, 6 Johns. Ch. 620; Basham v. Chamberlain, 7 B. not limited or in any sense founded upon, his interest in it. Before the marriage, the power to assign was unlimited in the wife. By the marriage, her power is taken away and transferred to the husband; and if his assignment is made in good faith and for value, we see no reason in annexing to it a condition rendering the transac- tion inoperative on w« dissolution of the marriage. But it is said the release of the wife since the divorce operates to prevent the assignee from a further prosecution of the suit. Had it not been for our stat- ute of 1822, this would be so. But that statute provides that a discharge of a chose in action shall have no other effect, as against an assignee, than it would or ought to have in a Court of equity. The release in this case was given after the defendant had full knowledge of the claim of the assignee, and so was received in fraud of his rights. Such a discharge would be wholly unavailing in a Court of equity; and is, therefore, unavailing here, by the express provision of this statute. Revised Statutes, 76; Scripture v. Newcomb, 16 Conn. 588. Again, it is claimed that the charge that the motives of the parties to. the assignment were of no consequence, provided the sale and assignment was a bond fide transaction and for a valuable consideration, was erroneous. We do not think so. The circumstance relied upon by the defendant in this part of the case was, that the assignment was made in contemplation of the divorce. We do not think this circumstance deprived the husband of his power to assign, or the assignee of his right to purchase. The husband intended to reduce the note, or the avails of it, to his possession. This he had the right to do; and whether he at the time contemplated a divorce or not, is of no importance. The divorce, which has been granted since the commencement of the suit, raises the question, whether the assignee can any longer prosecute it in the joint names of the plaintiffs. To sue or to maintain a suit, the party plaintiff must have the legal inter- est in the subject-matter. Lee v. Johnson, 9 C. 94. And, had the divorce been granted at the time, no doubt the suit must have been brought in the name of the wife, as she alone would have had the legal interest in the note. But is it error to permit the assignee to take judgment in the names of the plaintiffs since the divorce ? If the husband had died, his death might have been suggested on the record, and the action would have proceeded as if brought in the name of the wife alone, after such death. Stat. 72, § 81. An equitable construction of the statute authorizing this to be done in the case of the death of a co-plaintiff or defendant, would have justified the holder of this note in taking the course of suggesting the divorce, or causing it to be suggested, on the record, and the action might then have proceeded in the name of the wife alone. But it is too late now to take that course. Northam v. Kellogg, 15 C. 569. We think, however, the statute relating to the rights of assignees of choses in action, which we have before alluded to, p. 76, fairly applies to this part of the case also. That statute is very broad and comprehensive in its terms. It pro- vides that, “ whenever the defendant in any suit on a bond, note, or other chose in action not negotiable, shall plead or give in evidence the discharge, admission, or other act of the plaintiff, or any payment made to him, or any transaction whatever between the plaintiff and defendant, it shall be lawful for the plaintiff to reply or prove, &c. And, on the same being made to appear, such discharge, admission, pay- ment, or other transaction shall be no otherwise available in such suit than the same would or ought to be in a Court of equity.” Now the act of procuring the divorce between these plaintiffs was “ the act of the plaintiff’ and so within the letter of this statute. Then, what would be the effect of such an act in a Court of equity? Obvi- ARRINGTON v. YARBROUGH. 469 Monr. 446; Lynn v. Bradley, 1 Met. Monr. 638; Hord v. Hord, 5 B. Monr. (Ky.) 232; Wright v. Arnold, 14 B. 85; Smith v. Atwood, 14 Geo. 413. ously, the rights of an assignee would be protected against it. The death of a party is no ground of abatement in equity, where the interest survives to a surviving party ; and where a husband dies under circumstances which admit of demand by or against his representatives, the proceedings do not abate. Sto. Eq. Pl. 290, § 857. The statute to which we have referred was passed to prevent the vexation, delay, and injustice which were so liable to occur in cases of this sort, in consequence of the unbending rules of law. And on a mere question of practice, where a party has established his right, we think it no strained construction to hold the case of this assignee to be within the mischief which the statute was intended to remedy. We 5 do not, therefore, advise a new trial. In this opinion, Cauncu, C. J., and Srorrs, J., concurred. Ss Extswortu, J., having tried the case in the Court below, was disqualified. Waite, J. The present action is brought to recover the amount of a promissory note, not negotiable, given by the defendant to Mrs. Tuttle, one of the plaintiffs, prior to her marriage with the other plaintiff They have since been divorced, and sub- sequently she has released and discharged the defendant from the payment of the note. The question now is, whether the present action can be sustained in the names of these two plaintiffs upon that note, after the divorce and after the ‘discharge given by the payee of the note. It is claimed that it may be for the benefit of Zerah P. Tuttle, to whom the husband alone, during the continuance of the coverture, as- signed the note for valuable consideration. By a series of decisions, it has now become well settled that the termination of the coverture by a divorce has the same effect upon the husband’s interest in his wife’s property as his death. Starr v. Pease, 8 Conn. 541; Wheeler v. Hotchkiss, 10 Conn. 225; Legg v. Legg, 8 Mass. 101; Barber v. Root, 10 Mass. 260. The note at the time of the marriage was a chose in action belonging to the wife. It did not, upon the marriage, become the absolute property of the husband. He acquired but an inchoate right to it. It would become his only upon condition that he reduced it into possession during the existence of the marriage relation. This he failed to do ; and, unless the rights of the parties are changed by the assignment of the hus- band, the note survived to the wife, became absolutely and unconditionally her prop- erty, and entirely subject to her control. She alone can sustain a suit upon it, or, at her election, discharge the debt. The authorities upon this subject are numerous and decisive. Co. Litt. 851 5; Clancy on Husband and Wife, 4; Hayward v. Hayward, 20 Pick. 525. What effect had the assignment, made by the husband alone, upon the rights of the parties; or, in other words, what interest did the purchaser thereby take? In my judgment, he took precisely the same interest the husband then had, and no more. The husband had the right to collect the note, and apply the avails to his own use, provided he could do it during the continuance of the coverture, and nothing more, This right, by the assignment, was conveyed to the assignee, and that was all. They both have failed to do this, and consequently the rights of the wife remain unimpaired by the assignment. Even a judgment obtained upon the note would not operate as a reduction into possession, if the husband failed to collect the debt during the continu- ance of the coverture. Under such circumstances, the judgment would survive to the wife. It is, however, said, that the assignment was equivalent to a reduction into possession, and operated to transfer the note absolutely to the assignee. But Iam entirely unable to understand upon what principle such a result can be produced. The husband had but,a conditional interest in the note,—the right to collect it. 470 COVERTURE. See also Whitesides v. Dorris, 7 Dana, As to whether a consideration is 107. necessary or not, the better opinion provided he could do it before the marriage relation was dissolved. How, then, could he, by a conveyance of the note as his own property, and by his own act alone, convey an absolute and unconditional interest ? Surely, this cannot be said of any other conveyance made by the husband of his wife’s property. Were he to give an absolute deed of her land, it would convey nothing more than his interest. If there were no issue of the marriage, the interest of the purchaser would unques- tionably terminate upon the termination of the marriage relation. Law v. Hemp- stead, 10 Conn. 27. Rogers v. Moore, 11 Conn. 557. There are, indeed, cases where a person may convey a greater interest in property than he possesses, as where he acts under authority given him by the owner to sell. But I am not aware that the claim of the assignee has ever been placed upon any authority given by the wife to convey. A very extraordinary argument has some- times been resorted to in support of the claim. It has been said that equity considers the assignment as amounting to an agreement that the husband will reduce the property into possession ; that what a party has agreed to do shall be considered as done; and that, as the husband had the power of reducing the property into posses- sion, his assignment shall be regarded as having that effect. 2 Sto. Eq. § 1412, note 3. There may be some ingenuity in the argument; but, as I apprehend, very little common-sense. It proceeds mainly upon false assumptions. In the first place, the assignment does not contain an agreement that the husband will reduce the property into possession; it merely transfers the chose in action, with authority to use the husband’s name at any time for the collection of the debt, and the husband and wife’s at any time during the continuance of the coverture. Again, it is said, the husband has the power of reducing it into possession ; but this is not true to the ex- tent claimed. He has the power of doing it provided it is accomplished during the coverture ; but no such power afterward, if his wife survive. While the marriage relation continues, the husband is bound to support his wife, and pay her debts, and the law gives him power to collect her choses in action; and for that purpose he may unite her name with his, in suits for the collection of those debts, and upon the’ sale of them he may transfer that power to the purchaser; but the moment the mar- riage relation is terminated, the wife surviving, his power over her is gone, and all the power by him delegated to others. In order to sustain the doctrine contended for on the part of the assignee, English judges have been obliged to resort to some nice distinctions in relation to assignments made by husbands of their wife’s choses in action. Thus, it has been holden that the rule does not extend to assignees in bank- ruptcy or insolvency of the husband, or to assignees for the payment of the debts of the husband generally. Their power over such property continues only during the coverture; and, when that is terminated, the wife takes if she survive. 2 Sto. Eq. § 1411. Nor does it apply to the assignment of a reversionary chose in action, or other reversionary equitable interest. For, it is said, that the assignment does not, and from the very nature of the thing cannot, amount to a reduction into possession of such reversionary interests. And it has been holden that even a purchaser, for a valuable consideration, of the wife’s chose in action may, in equity, be compelled to make a settlement out of the same, for her benefit. Indeed, I think it may be laid down as a general rule, that the wife, surviving the coverture, will take all choses in action belonging to her before the marriage and not reduced into possession, whether any assignment of them has or has not been made by her husband. The only exception to that general rule ever recognized, so far as my knowledge extends, is that in favor of a bond jide purchaser for valuable consid- ARRINGTON v. YARBROUGH. is, that in all cases the release or assignment, to be effectual, must be founded upon a legal and good con- sideration. Webb's Appeal, 21 Penn. St. 248; Manion %. Titsworth, 18 B. Monr. 602; Hartman v. Dowdel, 1 Rawle, 281; Tritt v. Colwell, 31 Penn. St. 233; Browning v. Head- ley, 2 Rob. (Va.) 870; Matheney v. Guess, 2 Hill, Ch. 63;. Wright v. Rutter, 2 Ves. Jr. 673; Burnett »v. Kinnaston, 2 Vern. 401; Mitford v. Mitford, 9 Ves. 87; 2 Kent Com. 187; 471 the meaning of the cases holding an assignment to be a bar to the wife's survivorship, it is held that neither a pledge, nor an assignment as collateral security, will bar her survivorship. Latourette v. Williams, 1 Barb. 9; Hartman v. Dowdel, 1 Rawle, 279; Webb’s Appeal, 21 Penn. St. 248. See also Siter’s case, 4 Rawle, 468 (ante, p- 443). But see Tritt ». Colwell, 31 Penn. St. 229, holding an assignment as collateral security for a valuable con- sideration, and passing the title, suffi- Schouler’s Dom. Rel. 123. See, how- ever, Weems v. Weems, 19 Md. 344. As to what is an assignment within cient to bar the wife’s survivorship. In Needles v. Needles, 7 Ohio St. 441, (ante, p. 429), and Tuttle v. Fowler, eration. And, in order to support such an exception, a most extraordinary power must be considered as vested in-the husband, — that of compelling his wife to act as trustee for another, after the marriage relation is ended, and after every other power over her is for ever gone. Now, in my judgment, it is better, far better, to have one uniform rule, alike applicable to all assignments made by the husband of his wife’s choses in action, and thus avoid all nice and artificial distinctions, when no necessity for them exists. Iam aware that principle is sometimes borne down by precedents, and did I consider the rule settled in England, that the title of the purchaser of the wife’s chose in action is superior to hers by survivorship, I should feel it my duty to yield to the rule, however unsatisfactory might be the reasons urged in support of it. But, although different judges may have entertained different opinions upon the subject, I do not consider the rule to be there established; and I am not aware that the ques- tion has ever previously been made before our own Courts. We therefore are at liberty to settle the question upon principle. The best-considered case which I have been able to find on this subject is that of Purdew v. Jackson, 1 Russ. 26. Sir Tuomas Piumer, in delivering his opinion in that case, said: “The assignee for valuable consideration, with notice, must take the right as the husband had it. He buys the chance of the husband’s outliving the wife. In whose name must the action be brought? what obligation is the wife under to recover the debt for the assignee ? or what right would he have to use her name for such purpose? The husband might contract that the assignee should be at liberty to sue in his name at any time, or in the name of him and his wife during the continuance of the coverture but could he give authority to a stranger to sue in her name after his own decease? The debt is a chose in action, —the assignment cannot alter its nature —and, continuing to be a chose in action, it becomes the absolute property of the surviving wife.” This opinion of a very learned judge is acknowledged by eminent jurists to be a very able one. His reasoning, to my mind, has never been satisfactorily answered. The rule recognized is a plain, simple one, applicable alike’ to all assignments of the wife’s chose in action, and dispensing with all nice and unnecessary distinctions in relation to such assignments. It is in harmony with a rule repeatedly recognized by our Courts, that the conveyance of a person attempting to convey a greater estate than he has shall operate only to convey all his interests, without affecting the rights of others not parties to the conveyance. The rule, in my judgment, ought to govern in the present case, and I therefore cannot concur in the opinion expressed by a ma- jority of this Court. New trial not to be granted, 472 22 Conn. 64 (ante), it is denied that there is any distinction between the effect of a release and that of an assign- ment as to the wife’s right of survivor- ship (see also Rogers v. Acaster, 14 Beav. 445;'11 E. L. & Eq. 300; Schouler’s Dom. Rel. 126); but, as the husband may, if he choose, receive an- other article than the one payable by the terms of the wife’s chose (see notes to Howard v. Bryant, ante, p. 417), it seems that the reception of such article, if it be a legal and good consideration, operates, coming from the one from whom the obligation is owing, as a pay- ment thereof, and may serve to give the release executed in consideration thereof a greater effect than simply to pass the right to reduce to possession, or the interest of the husband, — viz., to discharge the right of action. See 2 Bouv. Law Dict. ‘‘Release;” 2 Chitty on Conts, (11th Am. ed.) 1145, 1146, 1149, and notes; also 1 Bish. Mar. Wom. §§ 131-144, and cases cited, where the subject is well considered. Hore v. Beecher, 12 Sim. 465. As to reversionary choses in action, or bare possibilities, however, it is set- tled that a release can have no greater COVERTURE. effect than an assignment. See Need- les v. Needles; Rogers v. Acaster (supra) ; 3 Lead. Cases in Eq. * 661. Some cases also make a distinction between a specific assignment and a general assignment for the benefit of creditors, holding that by the former the wife’s right of survivorship is barred, but that it is not by the latter. Tuttle v. Fowler, 22 Conn. 63 (ante) ; Van Epps v. Van Deusen, 4 Paige, Ch. 73; Browning v. Headley, 2 Rob. (Va.) 370; Outealt v. Van Winkle, 2 N. J. Eq. 513; Mitford v. Mitford, 9 Ves. 87; contra, Richwine v. Heim, 1 Penn. 373; Smith v. Chandler, 3 Gray, 392. See Schouler’s Dom. Rel. 123, 124, and cases cited. One who subsequently married a female who had been prosecutrix in an indictment for fornication and bas- tardy, has no right to release the weekly allowance directed to be paid to the prosecutrix for the maintenance of the child. For such expenses she is but the trustee for the township and her child, and she can neither sue for nor release them; neither can her future husband release them. Philippi v. The Commonwealth, 18 Penn. St. 116. SHUTTLESwortH v. NOYES. (8 Mass. 229. Supreme Judicial Court of Massachusetts. October Term, 1811.) Wife's choses in action subject to Trustee Process for the Husband's Debts.— Where one summoned as trustee had made a promissory note, payable to the wife of the defendant, for a consideration arising wholly from her property, | he was adjudged the trustee of the husband. In this case the only question made was, whether Downs should be adjudged the trustee of Noyes, the defendant. And, as to this, the facts appearing from Downs’s answer were, that he, after the marriage of Noyes with his wife Martha, now living, DENNISON v. NIGH. 473 gave a note, not negotiable, payable to the said Martha at a future day, which had not arrived at the time of the answer by Downs. The consideration of the note was partly a debt due to the said Martha before her marriage, and partly a sum arising on the distribution of the estate of her deceased father. SEDGWICK, J., said in substance, that the Court had a strong desire to protect this demand against attachments made by the creditors of the husband, if it could be done consistently with established principles of law ; but that it was very clear, that a note payable to a feme covert is legally payable to the husband, and the property vests absolutely in him. He alone, during his life, has power to enforce payment, or discharge the demand; and after his death it would go to his executor or administrator, and not to the wife. It was therefore the opinion of the Court, that this demand was well attached by this process, and that Downs must be adjudged to be the trustee of Noyes, the principal defendant. Chickering, for the plaintiff. Richardson, for the trustee. The dictum in this case, to the effect that the chose in action in question after the death of the husband would go to his executor or administrator, and not to the wife, has been since over- ruled. See Draper v. Jackson, 16 Mass. 480 ; Hayward v. Hayward, 20 Pick. 580 (ante, p. 370, 382) ; Winter- cast v. Smith, 4 Rawle, 180, and notes to Schuyler v. Hoyle (ante, p. 357). But the point decided has been fre- quently followed in other cases. See notes to Dennison v. Nigh (post). DENNISON v. NIGH. (2 Watts, 90. Supreme Court of Pennsylvania, September, 1833.) Wife's choses in action not subject to Attachment for her Husband's Debts. — A husband has but a naked power over a bequest to his wife, and one which he is not obliged to exercise in favor of his creditors; nor js such bequest the subject of attachment for the husband's debt. Error to the Common Pleas of Franklin County. This was scire facias upon a judgment on a foreign attachment, by James Dennison, against Samuel Nigh, garnishee of John 474 : COVERTURE. Lutshaw, in which the question arose whether a bequest to Mary, the wife of John Lutshaw, was the subject of a foreign attachment at the suit of his creditor. That part of the will of Andrew Dennison, the father of Mrs. Lutshaw, which made the bequest, was this: “I will and allow that the residue of my estate be equally divided between my sons, John, Andrew, William, James, Samuel, and Robert, and my daughters, Betsy, intermarried with James Sweney, Mary, inter- married with John Lutshaw, Rebecca, intermarried with Robert - Johnston, Nancy, intermarried with Adam Johnston; and the heirs of Hugh Dennison to have one share; which I allow to be paid to them, share and share alike, as the moneys may be re- ceived out of my estate.” The testator then authorized his ex- ecutors to sell all his estate, real and personal; but left this discretionary with them. The Court below (THompson, president) was of opinion that the bequest was not the subject of attachment, and therefore ren- dered a judgment for the defendant. Dunlop, for plaintiff in error, cited Serg. on Att. 86; Roll. ’ Abr. 551; Whiteside v. Oakman, 1 Dall. 294; Barnes v. Treat, 7 Mass. 271; 1 Day’s Cas. 486; 1 Conn. 388. Denny, contra, cited Morris v. Griffith, 1 Yeates, 192. Per Ouriam.. The decision of this case depends not on the ab- stract question whether a legacy may be attached, but on the nature of the interest in another respect. It is enough for the defence of the garnishee that the ownership is not in the de- fendant, but in his wife; the interest bequeathed to her being a portion of her father’s estate when turned into money. Though marriage is in effect a gift of the wife’s personal estate in pos- session, it is said to be but a conditional gift of her chattels in action ; such as debts, contingent interests, money owing her on account of intestacy, or orphan’s portions in the hands of the Chamberlain of London. 2 Vent. 341. Perhaps the husband has, in strictness, but a right to make them his own, by virtue of the wife’s power over them, lodged by the marriage in his person. But, if these be not taken into his possession, or otherwise dis- posed of by him, they remain to the ‘wife; and, if he destines them so to remain, who shall object? Not his creditors, for they have no right to call on him to obtain the ownership of his wife’s property for their benefit, especially as their debts were not con- SIR EDWARD TURNER'S CASE. 475 tracted on the credit of it; and, until he does obtain it, there is nothing in him but a naked power, which is not the subject of an attachment. The case put in 1 Rol. Abr. 551, of goods tor- tiously taken from the defendant in the attachment by the gar- nishee, comes entirely up to the principle. It was held that the goods could not be attached, because the defendant had but a right of action for the trespass. Without, then, determining whether a legacy can be attached in any case, we deem it enough for the present question, that the husband had but a naked power over the subject of this bequest. On the question discussed in the prin- cipal cases there is considerable conflict; some cases holding the wife’s choses in action subject to be seized and applied on the husband’s debts by legal process, and also to pass by general assign- ments in bankruptcy, &c. See Hol- brook v. Waters, 19 Pick. 354; Hay- ward ov. Hayward, 20 Pick. 528; Wheeler v. Bowen, 20 Pick. 567; Strong v. Smith, 1 Met. 476; Ames »v. Chew, 5- Met. 320 ; Alexander v. Crit- tenden, 4 Allen, 342; Smith v. Chand- ler, 3 Gray, 392; Hockaday v. Sallee, 26 Mo. 219; Johnson v. Fleetwood, garnishee of Green, 1 Harring. 442 ; Babb »v. Elliott, 4 Harring. 466; State v. Krebs, 6 Har. & J. 31; Peacock v. Pembroke, 4 Md. 280; Dold v. Geiger, 2 Gratt. 98; Vance v. McLaughlin, 8 Gratt. 289. And others holding that the right to reduce the wife’s choses in Judgment affirmed. action to possession is personal to the husband; and that his creditors cannot exercise his election for him. See Marston v. Carter, 12 N. H. 165; Wheeler ». Moore, 13 N. H. 481, 482; Poor v. Hazelton, 15 N. H. 564; Pick- ering v. Wendall, 20 N. H. 222; Rob- inson v. Woelpper, 1 Whart. 179; Skinner’s Appeal, 5 Penn. St. 262; Pressley v. McDonald, 1 Rich. 27; Godbold-v. Bass, 12 Rich. 202; An- drews v. Jones, 10 Ala. 400, 473; Parks v. Cushman, 9 Vt. 320; Short v. Moore, 10 Vt. 446; Probate Court v. Niles, 32 Vt. 775; Arrington »v. Screws, 9 Ired. 42; Harris v. Taylor, 3 Sneed, 540. See also Hall'v. Young, 37 N. H. 184; Gannard v. Eslava, 20 Ala. 732; Drake, Attach. § 247. In view of the conflict of authorities, the question can hardly be said to be settled. D Sir Epwarp TuRNER’S CASE. (1 Vern. 7; s. c. 1 Eq: Cas, Abr. 58; reversing s. c. 1 Ch. Cas. 307, where the case is styled ‘‘ Lady Turner against Bromfield.” House of Lords, Mich. Term, 1680.) Power of Husband over the Wife's Chattels Real. — A feme possessed of a trust of a term marries. The husband may dispose of it. Otherwise, if the term is assigned in trust for the wife with the privity of the husband. ' 476 COVERTURE. Memoranpum: that, about Michaelmas last, it was adjudged in an appeal in the House of Lords, in the case of Sir Edward Turner, that a term being assigned in trust for a feme by her former husband, and she afterwards intermarrying with the late Lord Chief Baron Turner, who aliened the term, that the same was well passed away, and that the husband might dispose thereof; and my Lord Chancellor’s decree was therefore re- versed.! But it was agreed that where a term is assigned in trust for a feme by the privity and consent of her husband, there without doubt the husband cannot intermeddle or dispose of it.? 1 “ For the ground of this decision, vide Jewson v. Moulson, 2 Atk. 421” [where it is thus stated by Lord Chancellor Harpwicke: ‘The ground of Sir Edward Turner’s case, 1 Vern. 7, was this, that as the husband, at law, could dispose of a term for years, so may he dispose of the trust of a term, because the same rule of property must prevail in equity as well as at law; but vide the case of Pitt v. Hunt, 1 Vern. 18, where Lord Chancellor NortincHam expressed great surprise at this resolution’]. “So Packer v. Windham, Pre. Chan. 419; Pitt v. Hunt (post 18); Walter v. Saunders, Trin. 1703; Eq. Cas. Abr. 58, pl. 5; Tudor v. Samine (post, 2 vol. 270); 2 Eq. Cas. Abr. 89, pl. 15; and the same doctrine fully recognized in Bates v. Dandy, 2 Atk. 208; Incledon v. Northcote, 8 Atk. 484; Worrall v. Marlar; Bushman v. Pell, before Lord Tuurtow, Chan. Dec. 16, 1784, cited in Bosville v. Brander, 1 P. Wms. 459, in notis. So if a judgment be given to A, in trust for a feme sole, who marries, and, by consent of the trustee, is in possession of the land extended on an elegit, the husband alone may assign over the extended interest. Lord Carteret v. Paschal, 3 P. Wms. 200. So if the feme be in possession of lands until « debt is due to her and marries. Ibid.” (ed. 2d, London ed.). : 2 “A fortiori, he may not, if he make a lease for years to another, to the use of his wife, if she live so long. Wiche’s case, Pasc. 8 Jac. Cam. Scacc.; Bates v. Dandy, ubi sup.; et vide Pitt v. Hunt, post, 18, where, said, however, by NortincHam, Lord Chancellor, that, to prevent the husband, he must be a party to the assignment; et vide Vin. Abr. 4, p. 42, pl. 5, 6. But although the doctrine on this subject, as laid down in the cases above cited, appears to be now established, yet it seems formerly neither to have been considered as Jaw, nor to have met with favor since its estab- lishment. Vide Doyley v. Perfol, before Lord Keeper Fincu, 25 Chas. II.; 1 Chan. Cas. 225; 2 Freem. 188; Sir George Sand’s case, Hard. 448; Walter v. Saunders, ubi sup.; Pitt v. Hunt, post, 18. And the Court at this day will go so far as, upon circumstances, to restrain the husband from parting with the property of the wife. Ellis v. Ellis, before Lord Lovcuporouen, Chan. 1798, MSS.; Roberts v. Roberts, before the Master of the Rolls, 12th Feb. 1796, MSS., cited Supplt. Vin. Abr. 476. And the husband cannot, by assigning his wife’s property for a valuable consid- eration, bar her of any equity she may havein it: Wenman v. Mason, in note to Bosville v. Brander, 1 P. Wms. 459; Jewson v. Moulson, 2 Atk. 417; Pope v. Cra- shawe, 4 Bro. Chan. 326; Like v. Berrisford, 8 Ves. Jr. 606; with the exception, “perhaps, of the trust of a term for years: per Master of the Rolls, Macauly »v. Phillips, 4 Ves. Jr. 19; vide also Franco v. Franco; 4 Ves. Jr. 528. As to the extent and effect of the husband’s right in the term of the wife at law, SIR EDWARD TURNER’S CASE. ATT vide Co. Litt. tit. Remitter, 851. u. Mr. Cox, in the conclusion of his note to Bosville v. Brander, 1 P. Wms. says, there seems to have been more doubt, where the hus- band has assigned some particular choses in action or trust term of the wife, for a full valuable consideration, whether the Court will impose any terms in favor of the wife, upon such particular assignee, than in the cases that have arisen between the wife and the general assignees of the husband, and refers to several cases. In the princi- pal case, no mention appears of that subject. In Pitt v. Hunt’s case, the Chancellor said: ‘The provisions made for children are defeated by this new resolution,’ i.e. in Turner’s case. In Tudor v. Samine, the circumstance that no provision had been made for the wife was expressly urged as an argument against the decree sought by the plaintiff’s bill, sed non allocatur. Packer v. Windham, the wife was dead and no issue. Walter v. Saunders was between the wife and the general creditors; and a term created tor raising 400/. was held to be a term, and not money; and in Bates vu. Dandy, Lord Chancellor said, the husband might have disposed of the whole, but no mention of any terms in favor of the wife. As to any distinction between a term in trust to raise a sum of money for a woman, and a trust of the term itself, such distinction, though attempted to be made, was not attended to by the Master of the Rolls in Walter v. Saunders. With respect.to a distinction in the case of a particular assignment between a trust term and a chose in action of the wife, vide Packer v. Windham, ubi sup., where Lord Chancellor says: ‘The bond, &c., was a chose in action, and not assignable by law; but a term for years was only a chattel real, which the husband might assign by law, without his wife, and so he might the trust of such a term, and consequently the money secured by it.” ‘ And a term for years, and consequently to every effect of disposi- tion the trust of such a term, is a chattel real, and seems to have been considered in pari materia with choses in action; since it must, in either case, equally be the agree- ment of the parties to entitle the husband to the wife’s choses in action, or her chattels real, if no disposition... Salwey v. Salwey, Amb. 693. So the husband may assign the wife’s chose in action, or a possibility that the wife is entitled to, so that it be not voluntary, but for a valuable consideration. Bates v. Dandy, ubi sup. But a voluntary assignment by the husband will alter the property. Squib v. Wynn, 1 P. Wms. 378 (ed. 2d, London ed.).” But if the wife’s interest in the leasehold is of such a nature that it cannot by pos- sibility vest in the wife in possession during the coverture, the husband cannot makea valid assignment thereof. Duberley v. Day, 16 Beav. 33, 8. c. 5 H. L. Cas. 888. See Honner v Morton and Caplinger v. Sullivan ; Arrington v. Yarbrough, and notes, ante, p. 418 et seg. That the husband may defeat his wife’s interest by survivorship by an absolute dis- position of the term, and that the same rule prevails in equity in relation to terms for years held in trust for her benefit, has long been well settled. See 1 Bright, Hus. & Wife, 98, 99. There being a dearth of American authorities upon the subject of the husband’s power over his wife’s chattels real, perhaps this case, and the notes of Mr. Raithby thereto, cannot be better supplemented than by inserting in this place the passage on the subject found in 2 Kent, Com. 134: “ The husband, upon marriage, becomes pos- sessed also of the chattels real of the wife, as leases for years, and the law gives him power, without her, to sell, assign, mortgage, or otherwise dispose of the same as he pleases, by any act in his lifetime (Co. Litt. 46 6); except it be such an interest as the wife hath, by the provision or consent of her husband, by way of settlement. (Sir Edward Turner’s case, 1 Vern. 7 (ante) ). Such chattels real are also liable to be sold on execution forhis debts. Ifhe makes no disposition of the same in his lifetime, he cannot devise the chattels real by will (Co. Litt. 351 a) ; and the wife after his death will take the same in her own right, without being executrix or administratrix to her husband. 478 COVERTURE. Rosertson v. Norris. (11 Ad. & E. x. s. 916. Court of Queen’s Bench, Easter Term, 1848.) Interest of Husband in Wife's Land.— A husband takes a freehold interest, during the joint lives of himself and his wife, in land belonging to her in fee-simple; and such interest passes by: the deed of the husband alone. Covenant, by assignees of a lessor of land, against a lessee. The declaration stated that one Mary J. S. Davis had become seised of the reversion in fee, as devisee of lessor; that she had intermarried with one Reymer; and that thereupon Reymer and his wife, in right of his wife, became and were seised in their de- mesne as of fee of and in the said demised premises, expectant on the determination of the lease ; it then alleged that, by indenture, &c., made between Reymer and his wife of the first part, Mary Davis, her mother, of the second part, and the plaintiffs, of the third part, ““ Reymer granted, bargained, sold, and released unto the plaintiffs the said reversion of and in the said demised premises, to hold to the plaintiffs, their heirs and assigns,” during the coverture. 2d plea. That‘ Reymer did not grant, bargain, sell, or release unto the plaintiffs the said reversion of and in the said demised premises,” modo et formd. Issue thereon. On the trial before Wiuiams, J., at the Somersetshire spring assizes, 1847, it ap- peared that the indenture of release had not been executed by the wife, and that the husband, who had executed it, was not tenant by the curtesy. It was thereupon objected that her reversion had not passed to the plaintiffs, and that the above issue on their part was not proved. The learned judge overruled the objection. Verdict for plaintiffs, with leave to move to enter a verdict for the defendant on this issue. . 7 If he grants a rent charge out of the same, without altering the estate, the rent charge becomes void at his death. If he survives his wife, the law gives him her chattels real, absolutely, by survivorship; for he was in possession of the chattel real during the coverture, by a kind of joint tenancy with the wife.” Co. Litt. 851 b; Butler’s note 804 to Co. Litt. lib. 8, 851 a; 1 Rol. Abr. 345, pl. 40. The subjects touched upon in this brief summary may be found treated upon more at length in 1 Bright’s Hus. & Wife, 94; Bell, Hus. & Wife, 102 et seqg.; 1 Bish. Mar. Wom. § 188 et seq; Schouler’s Dom. Rel. p. 187 et seg. ; where the English authori- ties are collected. ROBERTSON v. NORRIS. 479 Crowder, in Easter term last, obtained a rule nisi, accordingly. In last Hilary vacation.! Butt and Barstow showed cause. The husband took a freehold interest during the joint lives of himself and his wife. This point is discussed in note (2) to Co. Litt. 326 a. “ But, though by our law a woman does not now communicate her rank or titles of honor to her husband, yet the freehold, or the right of possession, of all her lands of inheritance vests in him immediately upon the marriage, the right of property still being preserved to her. 1 Inst. 851 a, 273 6. And see Pothier, Traité des Fiefs, vol. i. p. 123.2 This estate he may convey to another. An incorrect statement in the book called Cases in Equity, during the time of Lord Tatzor, fol. 167, of what was delivered by his lordship in the case of Robinson v. Comyns, Cas. Eq. temp. Talbot, 164, 167, seems to have given rise to a notion that the husband could not make a tenant to the precipe of his wife’s estate, for the purpose of suffering a common recovery of it, without the wife’s previously joining in a fine; but it now seems to be a settled point that he can.” Authorities to the same effect are collected in 1 Roper’s Hus. & Wife, p. 3, 2d ed. The land might have been extended under an elegit against the husband (note (1) to Underhill v. Devereux, 2 Wms. Saund. 69 ¢, 6th ed.); if he had become bankrupt, a freehold interest during the coverture would have passed to his assignees (Michell v. Hughes, 6 Bing. 689, 695, citing Com. Dig. tit. Bankrupt, D. 11). Crowder and Montague Smith, contra. By the argument for the plaintiffs, the wife is treated as altogether an unnecessary party to the deed of assignment. Yet the declaration of itself states, as was necessary, that husband and wife in right of the wife were seised ; and they must both have joined in an action for breach of covenant. 1 Bac. Abr. 729, 7th ed. tit. Baron & Feme, K. If the husband had the freehold, it could not be in the wife in case of his attaint. Yet it is said in Co. Litt. 351 a: “It appeareth here by Littleton, that if a man taketh to wife a woman seised in fee, he gaineth by the intermarriage an estate of freehold in her right, which estate is sufficient to work a remitter, and yet the estate which the husband gaineth depend- 1 February 11th. Before Lord Denman, C. J.; Parreson, CoLeripen, and WIGHTMAN, JJ. 2 See CEuvres Posthumes, tome i. p. 50 (ed. 1777), Part 1, c. 2, art. 2. a . 480 COVERTURE. eth upon uncertainty, and. consisteth in privity; for if the wife be attainted of felony, the lord by escheat shall enter and put out the husband ; otherwise ‘it is if the felony be committed after issue had. Also, if the husband be attainted of felony, the king gaineth no freehold, but a pernancy of the profits during the coverture, and the freehold remaineth in the wife.” The note to Co. Litt. 326 a, cited for the plaintiffs, stating that the wife’s freehold vests in the husband on marriage, is correct; but the freehold vests in the wife also; it vests in both in right of the wife. “Inareal estate, he” [the husband] “ only gains a title to the rents and profits during coverture; for that, depending upon feudal principles, remains entire to the wife after the death of her husband, or to her heirs if she dies before him; unless, by the birth of a child, he becomes tenant for life by the curtesy.” 2 Bl. Com. 488. Cur. adv. vult. Lord Denman, C. J., in this term (May 1st) delivered the judgment of the Court. A question arose in this case as to the interest which a husband takes in lands which belong to his wife in fee-simple, and as to his power to convey to another person an interest in those lands for the joint lives of himself and wife. It is laid down in Co. Litt. 351 a, that he is entitled to the pernancy of the profits, and that, if he be attainted, that pernancy will pass to the crown, the freehold still remaining in his wife. But it is also laid down in Co. Litt. 326 a, and in the notes, that he may make a tenant to the precipe of his wife’s land, and that he has an estate which he may convey to another. He has not, however, any greater interest than during the joint lives of himself and. his wife. Now the second issue raised by the pleadings in this case, which was an action of covenant on a lease made by a person who had afterwards devised to the wife, was, whether the husband did by indenture convey to the plaintiffs the reversion of which he and his wife were seised in right of the wife, to hold to the plaintiffs during the coverture of the wife with the husband. This he certainly did. The indenture professed to be made by him and his wife, but was hot executed by her; and it passed no more than his interest. That was an estate during the joint lives of himself and his wife, which was all that he professed to convey by the terms of the deed. ROBERTSON v. NORRIS. 481 The rule to enter a verdict for the defendant on that issue must be discharged. ‘Tf the wife, at the time of mar- riage, be seised of an estate of inheri- tance in land, the husband, upon the marriage, becomes seised of the free- hold jure uxoris, and he takes the rents and profits during their joint lives. It is a freehold estate in the husband, since it must continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, un- less he be a tenant by the curtesy. It will be an estate in him for his own life, if he dies before his wife; and, in that event, she takes the estate again in her own right. Ifthe wife dies before the husband, without having had issue, her heirs immediately succeed to the es- tate.” 2 Kent’s Com. 180. See also Schouler’s Dom. Rel. 142; 1 Bish. Mar. Wom. § 529 et seg.; 1 Roper, Hus. & Wife, 3; Harcourt v. Wyman, 3 Exch. 817; Evans v. Kingsberry, 2 Rand. 120; Guion v. Anderson, 8 Humph. 298; Weisinger v. Murphy, 2 Head, 674 ; Coleman v. Satterfield, 2 Head, 259; Jackson v. Cairns, 20 John. 301; Cheek v. Waldrum, 25 Ala. 152; Bishop v. Blair, 36 Ala. 80; Gregory v. Ford,5 B. Monr. 471; But- terfield v. Beall, 3 Ind. 203; Mont- gomery v. Tate, 12 Ind. 615 ; Clapp »v. Stoughton, 10 Pick. 463; Cleary »v. McDowell, Cheves, 139; Starke v. Har- rison, 5 Rich. 7; Trask v. Patterson, 29 Me. 499; Moore v. Richardson, 37 Me. 438; Beale v. Knowles, 45 Me. 479; Shallenberger v. Ashworth, 25 Penn. St. 152; Burleigh v. Coffin, 22 N. H. 118. It should be added to the above statement, that the husband’s interest is the same if the land comes to the wife after marriage. Junction Rail- road Co. v. Harris, 9 Ind. 184; 1 Roper, Hus. & Wife, 3. : Rule discharged+ And also though the wife’s interest be only a freehold estate for life, and not an estate in fee. Kingham v. Lee, 15 Sim. 396, 450; Evans v. Kings- berry, 2 Rand. 120; Williams ». Mor- gan, 1 Litt. 167. See also 1 Bish. on Mar. Wom. §§ 529, 532, and note (2), where the subject is fully considered. The rents and profits accruing during coverture are said to be the usufruct of the land, and to belong to the husband absolutely, so that, if not recovered during coverture, an action therefor does not survive to the wife. See Clapp v. Stoughton, 10 Pick. 463; Shaw v. Partridge, 17 Vt. 631; Car- teret v. Paschall, 3 P. Wms. 200; Dold v. Geiger, 2 Gratt. 98; Decker v. Livingston, 15 Johns. 479; Hay- ward v. Hayward, 20 Pick. 529; Jones v. Patterson; 11 Barb. 572; Reeve’s Dom. Rel. 30, 31. And where there is no express promise, but the action is for use and occupation on the promise implied by law, this is doubtless true. But if the lessee covenants in terms to pay the rent to the wife, or to the hus- band and wife, they may jom in an action for the rent ; and there seems no good reason why, in such case, she should not take by survivorship, as in other cases, in the event of her surviv- ing her husband. See Jacques »v. Short, 20 Barb. 269. See also 1 Bish. Mar. Wom. § 540 ed seg.; 1 Chitty’s. Pl. 30, 31. The husband and wife, where the wife’s estate is a fee, are seised in fee in himself and his wife in right of his wife, and it should be so stated in plead- ing. Polyblank v. Hawkins, 1 Doug. 3829; Took v. Glascock, 1 Saund. 253, note (4); Melvin v. Proprietors of Locks and Canals, 16 Pick. 165; 1 Roper, Hus. & Wife, 3, note (b). See also Nichols v. O’Neill, 10 N. J. Eq. 1 Reported by H. Davison,,Esq. 31 482 90; Moore v. Vinton, 12 Sim. 164; Kingham v. Lee, 15 Sim. 400; Co. Litt. 67a; Guion v. Anderson, 8 Humph. 3825. The beneficial interest, however, by reason of his pernancy of the rents and profits, is in the husband, and he may pass it by his separate conveyance, as in the principal case. See also Butter- field v. Beall, 3 Ind. 206; Coleman v. Satterfield, 2 Head, 259; Trask v. Pat- terson, 29 Me. 499 ; Evans v. Kings- berry, 2 Rand. 131. And it. is liable for his debts, and may be taken on execution against him. Canby v. Porter, 12 Ohio, 79; Babb v. Perley, 1 Me. 6; Montgomery ». Tate, 12 Ind. 615; Cheek v. Waldrum, 25 Ala. 152; Williams v. Morgan, 1 Litt. 167; Perkins v. Cottrell, 15 Barb. 446; Schneider v. Staihr, 20 Mo. 269; COVERTURE. Brown v. Gale, 5 N. H. 416; Nichols v. O'Neill, 10 N. J. Eq. 88. In order, however, that this tenancy by marital right should attach to the wife’s corporeal real estate, the seisin must be in her ; and therefore the hus- band has no interest by marital right in a remainder or reversion dependent on or after a preceding freehold estate in another, that can be sold on execu- tion against him, until the determina- tion of that estate. Gentry v. Wag- staff, 3 Dev. 270. See also 1 Bish. Mar. Wom. § 5385, note (3), where the subject is considerably discussed. But see, contra, Brown v. Gale, 5 N. H. 416. The case of Gentry v. Wagstaff is a well considered one, and upon principle seems to state the rule cor- rectly. The case is as follows: —} The husband may also lawfully lease 1 This was a petition for partition. The demandant averred that John Baird, being seised of.the lands of which partition was sought, devised them to John Kerr and his wife, Margaret, for their joint lives, with remainder to the issue of the wife ; that the wife died, leaving several children, and among them Margaret, the wife of the defendant Wagstaff; and that the demandant had purchased the interest of Wag- staff at an execution sale. The defendants pleaded, that, at the sale of the interest of Wagstaff in the land, John Kerr, the tenant for life, was alive, and the demandant demurred. His Honor, Judge Norwoop, at Person, on the last circuit, overruled the demurrer, and dismissed the petition, whereupon the demandant appealed. Henperson, C. J. When this case was opened, my impression was, that, as the interest of the wife was a vested remainder in fee, after an estate for life in her parents, and was therefore incapable of a seisin either in deed or in law, the law cast an estate on the husband during the marriage, which he could himself alien, and which could consequently be sold for his debts. Iwas led to this conclusion from cases which I then thought analogous; to wit, where the estate was incapable of an actual seisin, as in cases of advowsons, rents, and other incorporeal hereditaments ; that the law gave them to the husband during the marriage, and, upon the death of the wife, having had issue born alive, he became tenant by the curtesy thereof; and that upon the death of the wife her heir succeeded to her estate or interest therein, with. out an actual seisin by her. But, upon reflection, I am satisfied that all these analogies fail. That as regards the freehold interest of the wife, the husband by the marriage alone can acquire no estate or interest; and that there must be an actual seisin of the husband, during the marriage, of such estates as admit of it (as in lands and other corporeal hereditaments); and in both corporeal and incorporeal estates, a present interest. I confine myself to freehold interests. This rule is founded, I think, on feudal reasons ; and although the doctrine of feuds has in a great measure been abol- ished, still many of the rules growing out of it remain and govern our real estates, and this among others. The reason why in freehold interests there must be a pres. ent estate in the wife to give the husband an interest, arises from the principle of the ROBERTSON v. NORRIS. 483 his wife’s lands, making the rent paya- But, on the termination of his life-estate ble to himself, which lease will be bind- by death, his wife is entitled to the pos- ing so long as his estate continues. session of the lands so leased, dis- Harcourt v. Wyman, 3 Exch. 817. charged from the lease and all other feudal law, that it is the freeholder only who is bound to perform the feudal duties ; and that, as the functions of the government could not otherwise be carried on (as the feudatory was concerned in the making and administration of the laws, as well as the defence of the kingdom), there must in every feud be a freeholder. For if one feud could be withdrawn from the obligations: by law imposed on it, all might; and thereby the functions of the government would entirely cease. Hence the rule, that the freehold could not be in abeyance, or in no one; and hence grew the rule, that a contingent freehold remainder must be preceded by a particular freehold estate. But no such rule prevailed with the residue of the inheritance. It might be in abey- ance in uncertainty, or, as is expressed by some, in nubibus. All that was required was, that there should always be a freeholder to occupy the land and answer for its duties. Where there was one, the ulterior limitations might be to uncertain persons, - provided the uncertainty was removed before or at the time the person was wanted to fill the freehold. Hence the rule that the contingent event on which the remainder is to vest, must happen, or the contingent remainder-man must be in esse during the particular estate, or eo instanti that it determines, that there may be no chasm. A child en ventre sa mére would not at common law fill the freehold and make the con- tingent remainder good. Hence the law is entirely regardless of looking out the remainder-man until he is wanted to fill the freehold, and will not before that time decide on the person to take. As, where there is an estate to A for life, remainder to B and his heirs, B dies, living A; the heir of B is not looked for until the death of A. For until that time he is not wanted to fill the freehold, although B had a vested interest; and he who is the heir of B at A’s death, and not he who is heir at B’s death, succeeds to the estate. We had a remarkable application of this rule, some years ago, in the late Supreme Court, in the case of Exum v. Davie (1 Murph. 475). An estate was limited to Harwood Jones for life; remainder to John Jones and his heirs. John Jones died before 1795 (when the act passed calling the females equally with the males to the inheritance), leaving a son and a daughter. The son was then his heir, to wit, at his death. After 1795, Harwood Jones, the tenant for life, died ; at which time both the son and daughter were the heirs of John Jones ; and they both succeeded equally to the estate. It was said to be quite immaterial who were the heirs of John Jones, as to these lands, when John Jones died. For there was a freeholder in the person of the particular tenant ; and the law looked for the heirs only when they were wanted to succeed to the freehold interest, which was on the death of the tenant for life. In the case before the Court, the law does not look for the children of the tenants for life until the estate of the tenants for life determines. For they were wanted for no purpose; and, as the husband had no duties to perform in regard. to the lands, the law gave him no interest or estate therein. I have confined myself entirely to freehold interests. As to chattel interests in lands, as terms for years, the doctrine of feuds does not apply, as they were unknown to the feudal law. As to the argument that the husband could have sold these lands by es- toppel, so he might sell any other lands in the same way; but the sheriff can only sell what the defendant himself can sell, where his conveyance operates by way of passing or transferring an estate, not where it operates by way of estoppel. If it included sales operating by the latter mode, the sheriff might sell any tract of land, or all the lands in his county. Ihave entered more at large into this case, from what fell from me when it was opened. The authorities cited and relied on by the de- ’ 484 incumbrances made by him. See Brown v, Lindsay, 2 Hill, Ch. (S. C.) 542, and the authorities cited (infra). And even if the husband and wife unite in the lease of her lands, in the absence of enabling statutes, or where they exist if such statutes are not pur- sued, the lease is not binding upon her after his death. Worthington v. Young, 6 Ohio, 313; Young v. Miller, 10 Ohio, 88; George v. Goldsby, 23 Ala. 326. See also Martin v. Dwelly (ante, p. 298) ; 2 Saund. 180, note (9), and authorities cited; Hill v. Saunders, 2 Bing. 112. But it is held that, if husband and wife make a lease for years of the wife’s » lands by indenture, and she accepts rent after his death, she is liable to the covenants in the lease. Greenwood v. Tyber, Cro. Jac. 563, 564; 2 Saund. 180, note (9), and cases there cited. See also Toler v. Slater, L. R. 3 Q. B. 46; 1 Bish. Mar. Wom. § 541 ef seq.; Schouler’s Dom. Rel. 148. Greenwood v. Tyler is cited also (ante) in Martin v. Dwelly, where it is said that ‘‘ the acceptance of the rent is a confirmation of the lease, and may be considered equivalent to a new execution and de- livery, though the wife was at liberty, after her husband’s death, to avoid or affirm it if she had chosen.” See also George v. Goldsby, 23 Ala. 331; also Worthington v. Young, 6 Ohio, 335, where it is said that ‘‘ the lease ac- quired efficacy, by the payment of rent to the wife after the death of the husband, not because the acceptance secures [imures] as the confirmation of a voidable contract, but because it tes- tifies her assent to an agreement when competent to contract. It is a ratifiva- tion which supplies the deficiency of a li COVERTURE. pre-existing authority.” But it seems that where the wife is not a party to the lease, it is void as to her, and an acceptance of rent by her after the death of the husband will not confirm it. See, however, Brown v. Lindsay, 2 Hill, Ch. 542; Jackson v. Holloway, 7 Johns. 81; 2 Saund. 180, note (9). See also Schouler’s Dom. Rel. 148. On the other hand, in Toler v. Slater, L.R. 3Q. B. 42, where the husband and wife, seised in fee in right of the wife, in April, 1860, by indenture demised land to C, for seven years ; and the lessee, and defendants as his sure- ties, covenanted to pay the rent during the term, and the deed was executed by all the parties, but not acknowledged by the wife, under 3 & 4 Wm. IV.c. 74, sec. 79, nor was the deed in con- formity with 19 & 20 Vict. c. 120, sec. 32; and the lessee entered immediately, and occupied till August, 1866, when he left England ; and the husband died in January, 1866, and the wife in Jan- uary, 1867, having interfered in no way with the property,—in an action brought by the executors of the wife on the covenant against defendants, to recover rent which accrued due in June, 1866, it was held that the covenant bound the defendants, inasmuch as the lessors had executed the deed so as to pass the term for which the defendants must be taken'to have contracted, and to which the covenant was annexed, — viz., a term of seven years, terminable at the option of the wife on the husband’s dy- ing during the term; and that, as the wife bad done nothing to avoid the lease, but allowed the lessee to retain possession, the lease was subsisting up to her death, and the plaintiffs could fendant prove that there must be a present interest and a seisin of corporeal heredit- aments. [Taylor v. Hoode, 1 Bur. 107; Tho. Co. 582, 672; 2 Bl. Com. 127; 2 Bac. Ab. Curtesy, C. 2,3; Preston on Estates, 215.] It may therefore be said as univer- sally true, that by the marriage the husband acquires no interest in the corporeal real estates of the wife until actual seisin ; and therefore can have no interest in her real estates in reversion or remainder, dependent on or after a preceding freehold estate therein in another, until the determination of that estate, and a seisin in him. Per Curiam, Judgment affirmed. ROBERTSON therefore recover. See 1 Bish. Mar. Wom. § 541 et seg. See, however, the observations of the Court in Worthing- ton v. Young, 6 Ohio, 335. This whole subject is considered con- siderably at length in 1 Bish. Mar. Wom. § 541 et seq., to which the reader is referred. The subjects of dower and curtesy cannot be illustrated in this volume without swelling its size beyond proper limits ; and for the full discussion of those subjects the reader is referred to Vol. I. of Bishop on the Law of Mar- ried Women, Scribner on Dower, Washburn on Real Property, and other works on the law of real property. In order, however, to illustrate the difference between tenancy by marital right and by curtesy initiate, the case v, NORRIS. 485 tesy initiate is a freehold estate held by him in his own right, and as such sub- ject to sale on execution against him for his debts, see also Schermerhorn v. Miller, 2 Cow. 439; Shortall v. Hinck- ley, 31 Ill. 226; Mattocks v. Stearns, 9 Vt. 835; Lancaster County Bank v. Stauffer, 10 Penn. St. 398; Canby v. Porter, 12 Ohio, 79; Day v. Cochran, 24 Miss. 261; 1 Bish. Mar. Wom. § 580 et seg. See also Gillespie v. Worford, 2 Cold. 639, where it was held that, the marriage being valid in its inception, a decree of divorce for a cause arising subsequent to the vesting of the title by curtesy initiate, and in no degree affecting the validity of the original marriage contract, will not divest the title of a purchaser of the estate by curtesy initiate. The case of Foster v. Marshall (su- pra) is as follows: —* of Foster v. Marshall, 22 N. H. 491, is herewith presented; to the point, also, that the interest of the husband by cur- 1 Wait or Entry. The facts of this case are sufficiently stated in the opinion of the Court delivered by, Bext, J. The principal question arising in this case is as to the effect of the Statute of Limitations upon the demandant’s right of action. It appeared that the demanded premises were set off, by a committee of partition appointed by the Court of Probate, to Mary Foster, formerly Mary Eastman, the mother of the demandant, as her share of the estate of her father, Samuel Eastman, deceased, on the 14th of May, 1814. Mary Foster was then the wife of Frederick Foster, by whom she then had one or more children. Frederick Foster died in 1884, and his wife in 1836. They had six children , whose rights are said to be now vested in the plaintiff. The defendant proved that, in 1817, one Morrill was in possession, claiming to be the owner of the demanded premises. He conveyed the same by deed, dated July 3, 1817, to one Marshall, who entered and occupied, claiming title till April 30th, 1847, when he conveyed to the tenant, who has since remained in possession. The tenant claims that he has a perfect title by thirty years’ undisturbed and peaceable possession. The demandant alleges that his right is not barred; because at the time when the disseisin occurred, in 1817, Mrs. Foster was a feme covert, and up to 1834 her husband had an estate for life in the premises, and she had no right of entry until his decease, and consequently no right of action till then, and that since that time twenty years have not elapsed. Under the Statute of Limitations, which was in force in this State before the Revised Statutes, it must be considered settled that the statute did not affect the right of a remainder-man or reversioner during the continuance of the par- ticular estate ; and that neither the acts nor the laches of the tenant of the particular estate could affect the party entitled in remainder. Wells v. Prince, 9 Mass. 508; Wallingford v. Hearl, 15 Mass. 471; Tilson v. Thompson, 10 Pick. 859. No right of entry or action accrued to or vested in the heirs of the wife during the continuance of an estate by the curtesy. Jackson v. Schoonmaker, 4 Johns. 390. But the party entitled is not barred until the usual period of limitation after the termination of the 486 COVERTURE. life-estate. Heath v. White, 5 Conn. 228; Witham v. Perkins, 2 Greenl. 400. Tf, then, the husband. had in this case an estate by the curtesy, or any interest in the land which would entitle his wife who survived to be regarded as seised only in remainder or reversion, she and her heirs would have the full period of twenty years ‘after the death of the husband to commence their action. To constitute a tenancy by the curtesy, the death of the wife is one of the four things required. The estate of the husband is initiate upon the birth of issue. It is consummate on the death of the wife. 4 Kent’s Com. 29; Co. Litt. 30a. By the intermarriage, the husband acquires a freehold interest, during the joint lives of himself and his wife, in all such freehold property of inheritance as she was seised of at the time of marriage, and a like interest vests in him in such as she may become seised of during the coverture. The husband acquires, jointly with the wife, « seisin in fee in the wife’s freehold estates of inheritance, the husband and wife being seised in fee in right of the wife. Gilb. Ten. 108; Co. Litt.67 a; Polyblank v. Hawkins, 1 Saund. 258,n.,s. c. 1 Doug. 329. This interest may be defeated by the act of the wife alone; as if, at common law, the wife is attainted of felony, the lord by escheat could enter and eject the husband. 4 Hawk. P. C. 78; Co. Litt. 40a; Vin. Abr. Curtesy, A.; Co. Litt. 351a. After the birth of issue, the husband is entitled to an estate for his own life, and in his own right as tenant by the curtesy initiate. Co. Litt. 51a, 80a, 1246; Schermerhorn v. Miller, 2 Cowen, 489. He then becomes sole tenant to the lord, and is alone entitled to do homage for the land, and to receive homage from the tenants of it, which, until issue born, must he done by husband and wife. 2 Black. Com. 126; Litt. § 90; Co. Litt. 67a, 80a. Then he may forfeit his estate for life by a felony, which until issue born he could not do, because his wife was the tenant. 2 Black. Com. 126; Roper Hus. & Wife, 47. If the husband, after the birth of issue, make a feoffment in fee, and then the wife dies, the feoffee shall hold the land during the husband’s life; because, by the birth of issue, he was entitled to curtesy, which beneficial interest passed by the feoffment. Co. Litt. 80a. If such feoffment is made before issue born, the husband’s right to curtesy is gone, even though the feoffment be condi- tional and be afterwards avoided. And if in such case the husband and wife be divorced a vinculo matrimonii, the wife may enter immediately. -Greneley’s case, 8 Co. 73. The husband’s estate after issue born will not be defeated by the attainder of the wife; for his tenancy continues, he being sole tenant. 1 Hale, P. C. 359; Co. Litt. 851 a, 40a; Bro. Abr. Forf. 78. The obvious conclusion from these views of the nature of the interest of a tenant by the curtesy initiate is, that such tenant is seised of a freehold estate in his own right, and the interest of his wife is a mere reversionary interest, depending upon the life-estate of the husband. The necessary result of this is, that the wife cannot be prejudiced by any neglect of the husband, and of course she may bring her action, or one may be brought by her heirs, at any time within twenty years after the decease of the husband ; when his estate by the curtesy, whether initiate or consum- mate, ceases, and her right of action, or that of her heirs, accrues. In this respect there is no distinction between curtesy initiate and curtesy consummate. Melvin v. Locks & Canals, 16 Pick. 140. So far as we are aware, this principle has never been questioned where the inheritance of the wife has been conveyed to w third person, either by the deed of the husband alone, or by a deed executed by husband and wife, which from some defect did not bind the interest of the wife. Miller v. Shackleford, 8 Dana, 289; Caller v. Metzer, 18 Serg. & Rawle, 356; Fagan v. Walker, 5 Ired. 634 : McCorry v. King, 3 Humph. 267; Mellus v. Snowman, 8 Shep. 201; Meramon v. Caldwell, 8 B. Mon. 82; Gill v. Fauntleroy, id. 177; Melvin v. Locks & Canals, 16 Pick. 140. But it has been held (Melvin v. Locks & Canals, 16 Pick. 161; Kittridge v. Locks & Canals, 17 Pick. 246) that where a disseisin has been committed upon the ROBERTSON v. NORRIS. 487 wife’s estate, the disseisin is done alike to the husband and wife; that a joint right of entry and of action accrues to both for the recovery of it; and that, if such remedy is not prosecuted within twenty years, it is barred. This is true where the husband has acquired no estate by the curtesy, and is seised merely in the right of the wife, of her estate. Such are the cases of Guion v. Anderson, 8 Humph. 298; Mellus v. Snowman, 8 Shep. 201. And if the husband is tenant by curtesy, as he and his wife are seised of the fee in right of the wife, the action must be brought by husband and wife, and a joint seisin in fee alleged in them in her right. Anon. Buls.21. Their joint right of action is barred by the lapse of twenty years after it accrues. But it by no means follows that the reversionary right of the wife, accruing in possession after the estate of her husband has ceased, is also barred. It is well settled that the same party may have several and successive estates in the same property, and ‘several rights of entry by virtue of those estates; and one of those rights may be barred without the others being affected. Hunt v. Burn, 2 Salk. 422; Wells vo. Prince, 9 Mass. 508; Stevens v. Winship, 1 Pick. 318; Tilson v. Thompson, 10 Pick. 359. And every reason which can exist in favor of the right of any reversioner applies equally in this case; namely, that a reversioner has, as sueh, no right of entry and no right of action during the: particular estate, and consequently is not barred until twenty years after his own right of entry accrued. 2 Sugd. V. & P. 853; 3 Steph. N. P. 2920, n. 10; 9 Mass. 508; 1 Pick. 318; 15 Mass. 471; 10 Pick. 859; 4 Johns. 890, before cited. Besides, the wife, by reason of her disability, can make no entry to revest her estate during the coverture. Litt. p. 403 ; Co. Litt. 246 a. Coke says, in express terms: “ After coverture, she [the wife] cannot enter without her husband.’’ In Jackson v. Johnson, 5 Cow. 74, and Heath v. White, 5 Conn. 228, this question arose, and was decided in accordance with our views, and we think upon sounder principles than the cases in Massachusetts to which we have referred. ‘We have compared the provisions of the Revised Statutes with the older statutes, and do not perceive that there is, as to the point in question, any difference in their éffect. Under neither would the plaintiff propose to claim any advantage from the proviso. His ground is not that the ancestor was a married woman when her right accrued, but that her marriage and the birth of one or more children had vested a life-estate in her husband, and that the disseisin was done to him; and that no right of action accrued to her in virtue of the reversionary interest under which her heirs now claim, until she became a widow, and the husband’s estate had terminated ; and that the action is brought within twenty years after that event. This appears to us a correct view of the case and of the law; and the verdict must therefore be set aside, and a New trial granted. Hackett, for the demandant. Porter, for the tenant. 488 COVERTURE. Back v. ANDREW. (2 Vern. 120, s. c. Pre. Ch. (Finch’s) 1; 2 Eq. Cas. Abr. 230. High Court of Chancery, January 24, 1690.) Estates by Entireties: Husband powerless to alien. — A. purchases a copyhold estate, and takes the surrender to himself, and his wife and daughter, and their heirs. The husband and wife (as one person) take a moiety by entire- ties, and the daughter the other moiety. The husband mortgages it, and dies; void for the whole, and no relief in equity. PurcHask made of a copyhold estate by John Andrew, the ‘husband ; and the surrender taken to John Andrew and his wife, and Elizabeth, his daughter, and their heirs. The said John Andrew, as being visible owner of the estate, takes upon him to make a conditional surrender, by way of mortgage, to the plaintiff, and afterwards dies; the plaintiff's bill was against the mother and daughter, to discover their title, and to set aside their estates as fraudulent against the plaintiff, who was a purchaser; sed non allocat’. Bill dismissed, but without costs; for, per Cur., the husband and wife take one moiety by entireties, so that the husband cannot alien nor dispose of it so as to bind the wife,! and the other moiety is well vested in the daughter. See next case and notes. GREEN on the demise of Crew v. Kine. (2 W. Bl. 1211. Court of Common Pleas, Trinity Term, 1778.) Estates by Entireties: Husband powerless to alien or devise. — Surrender of a copyhold ‘‘to husband and wife, and the survivor, and, after the death of the survivor, to the right heirs of both,” vests an immediate fee-simple in the husband and wife by entireties ; and the husband cannot alien or devise any part of it, but on his death the whole survives to the wife. Esncrment in Middlesex, tried before Dz Gray, C. J. Verdict for the plaintiff, subject to this special case. The premises were copyhold, parcel of the manor of Ashford, and 1 Vide Co. Litt. 187 a, 6; Anon. Skin. 182; Bricker v. Whatley, ante, 1 vol. 233; Green on dem. of Crew v. King, 2 Black. 1211 (supra), and notes. CREW v. KING. 489 were surrendered, in 1784, by John Beauchamp, “to the use of John Fitzwalter and Elizabeth, his wife, and the longer liver of them ; and, after the death of the longer liver of them, to the right heirs of the said John and Elizabeth for ever.”” And they were admitted accordingly. On the 4th of September, 1769, John Fitzwalter, having pur- chased other copyhold estates in the said manor, made a general surrender of all his copyhold estates to the uses of his will; and, on the 23d of June, 1770, made his will, by which (after devising all his freehold and copyhold estates to his wife for life, and after her decease, a certain estate not now in question, to Thomas Merrick, in fee) he gives “all the rest, residue, and re- mainder of his real estate, both freehold and copyhold, to Joseph King, to hold to him and to his heirs and assigns for ever.”’ John Fitzwalter died in April, 1771, and Elizabeth, his wife, survived him; but neither of them had issue of their bodies. After his death, she surrendered her estates in the said manor to the uses of her will; and, on the 4th of March, 1772, devised her copyhold estate in Ashford to Thomas Crew, his heirs and assigns for ever, and died on the 4th of March, 1778. Qu. If Thomas Crew, the lessor of the plaintiff, is entitled to recover. ill, for the plaintiff, insisted that there are only two possible constructions that can be made of the surrender in 1734. 1. That the husband and wife were tenants for life, with a contingent re- mainder to the survivor in fee. If so, the husband, being tenant for life of a copyhold, could not bar this contingent remainder, (Roll. Abr. tit. Uses), and therefore it survived to the wife. 2. Which is the true construction, that they were joint- tenants of the fee; and, if so, being husband and wife, they took by entireties, and not by moieties; so that it is clear the husband could not dispose of it. Grose, for the defendant, argued that the intent of the surrender must govern, which, he said, was plainly to provide for the husband and wife, and their issue, without power for either to alien. That the best way to effectuate this intent was to construe them joint-tenants for life, with contingent re- amainders to their issue, in tail or in fee. The most that the husband and wife can take is an estate tail, and then the wife had nothing to devise. In Beresford’s case, 7 Co. 41, the Court supplied the words, “of their bodies,” after the general word, 490 COVERTURE. “heirs.” And in Frogmorton and Wharrey, M., 11 Geo. III. C. B., an estate to A., and the heirs of the body of A. and B., was held an estate for life to A., with a contingent remainder to the issue. And as that contingency has now failed in the present case, the reversion which remained in the vendor must take place. Or, take it to be an estate tail in both, the reversion in fee still rested in the surrenderor, and must now, on failure of the estate tail, take effect. And, upon an ejectment, it is sufficient for the defendant to show a title out of the lessor of the plaintiff. Dre Grey, C. J., stopped Hill in his reply, saying that though the case was a little out of the common road, there was no great difficulty in it. The question is not on a will or a marriage settlement, so as to require us to desert the legal operation of the words, in order to effectuate a supposed intention to the contrary. Itis on a purchase made by the husband after marriage, which must have exactly the same construction as a voluntary set- tlement by deed. Nothing can be collected but from the words of the surrender itself. The wife is not bound by it, but might dis- agree to it after the death of her husband; but, it being for her benefit, her consent is therefore presumed. The word “heirs” must be taken in its legal sense as a word of limitation, as there is no proof that it was meant as a word of purchase. Taking, then, the case in this light, it falls exactly within a nice distinction laid down in our ancient books, and which, having never been overruled, continues law at this day. The same words of conveyance which would make two other persons joint-tenants, will make a husband and wife tenants of the entirety; so neither can sever the jointure, but the whole must accrue to the survivor. What is laid down in Litt. sect. 525, and Co. Litt. 299 6, will govern this case. And, indeed, could the husband have severed the jointure and disposed of the wife’s property, his devise would not effect it ; for the survivorship or jus acerescendi accrues per mortem; the right of the devisee is post mortem. I, therefore, think the plaintiff must recover. Goutp, J., absent. Buackstong, J. The transaction of 1734 being a purchase for valuable consideration, there is no ground to surmise that any estate or interest was left in the vendor; and, indeed, he has con- veyed by the words of his surrender as complete a fee-simple, “to John and Elizabeth and their right heirs for ever,” as words can possibly create. CREW v. KING. 491 I entirely agree with Lord Chief Justice as to the law of this case, which, though ancient, has been recognized in Purefoy and Rogers, 2 Lev. 89; and Back and Andrews, 2 Vern. 120, is a case directly in point, and upon a copyhold surrender also. This estate differs from joint tenancy, because joint-tenants take by moieties, and are each geised of an undivided moiety of the whole, per my and per tout, which draws after it the incident of survivor- ship or jus acerescendt, unless either party chooses in his lifetime to sever the jointure. But, husband and wife being considered in law as one person, they cannot during the coverture take separate estates; and, therefore, upon a purchase made by them both, they cannot be seised by moieties, but both and each has the entirety. They are seised per tout, and not per my. The husband, therefore, cannot alien or devise that estate, the whole of which belongs to his wife as well as himself. But had they been joint-tenants, while sole, and afterwards intermarried, they still would remain seised of their respective moieties, and the husband might sever the jointure and alien his own moiety. Bro. Abr., Cuz in vita, 8. This is on supposition that the surrender of 1734 operated as a grant of an immediate estate to both John and Elizabeth, in fee, which I hold to be its true operation. But, even supposing it a grant to the husband and wife for their lives, with a contingent ‘remainder to the survivor in fee, the effect would be just the same. For both being seised of the entirety for their joint lives, the husband could not by any alienation destroy the particular estate so as to bar the contingent remainder; and then, upon his death, she (as survivor) became immediately seised in her own right of the remainder in fee-simple. So that gudcunque vid datd, her devisee must recover. Nanes, J., of the same opinion. The doctrine of these two cases is extremely well settled. See Johnson v. Hart, 6 W. & S. 319; Fairchild v. Chastelleux, 1 Penn. St. 176; Bates v. Seely, 46 Penn. St. 248; Maple v. Kus- sart, 53 Penn. St. 348; French v. Mehan, 56 Penn. St. 286; Den v. Har- denbergh, 10 N. J. 42; McDermott v. French, 15 N. J. Eq. 78; Mariner v. Postea to the plaintiff. Saunders, 10 Ill. 124; Lux ». Hoff, 47 Ill. 425; Strawn v. Strawn, 50 Ill. 33; Almond v. Bounell, Sup. Ct. of Ill., June 16, 1875; 7 Chicago Leg. News, 324; Doe v. Howland, 8 Cow. 277; Rogers v. Benson, 5 John. Ch. 431; Jackson v. Stevens, 16 Johns. 110; Barber v. Harris, 15 Wend. 615; Dickinson v. Codwise, 1 Sandf. Ch. 492 214; Torrey v. Torrey, 14 N. Y. 430; Wright v. Saddler, 20 N. Y. 3823; Beach v. Hollister, 3 Hun, 519; Doe ex dem. Ross v. Garrison, 1 Dana, 35; Rogers v. Grider, 1 Dana, 242; Ban- ton v. Campbell, 9 B. Monr. 594; Bab- bitt v. Scroggin, 1 Duvall, 272; Elliott v. Nichols, 4 Bush (Ky.), 502 ; Ander- son v. Tannehill, 42 Ind. 142; Shaw». Hearsey, 5 Mass. 521; Fox v. Fletcher, 8 Mass. 274; Varnum v. Abbot, 12 Mass. 479 ; Wales v. Coffin, 13 Allen, 215; Davis v. Clark, 26 Ind. 424; Taul v. Campbell, 7 Yerg. 319; Todd v. Zachary, Busb. Eq. 286; Topping v. Sadler, 5 Jones, Law (N. C.) 357; Den ex dem. Motley v. Whitemore, 2 Dev. & Bat. 587; Woodford v. Higly, Winst. Law, 237; Den ex dem. Need- ham v. Bronson, 5 Ired. 426; Bomar v. Mullins, 4 Rich. Eq. 80 ; Greenlaw v..Greenlaw, 13 Me. 186; Harding v. Springer, 14 Me. 407; Brownson v. Hull, 16 Vt. 309 ; Ketchum v. Wals- worth, 5 Wisc. 95; Bennett v. Child, 19 Wisc. 364. Cases might easily be multiplied, but the above will suffice to show that the doctrine is pretty gener- ally adopted in the United States. In Connecticut and Ohio, however, the doctrine of tenancy by entireties has not been adopted. See Sergeant v. Steinberger, 2 Ohio, 305; Wilson v. Fleming, 13 Ohio, 68; Whittlesey v. Fuller, 11 Conn. 337. See also re- marks of Cowrn, J., in Jackson v. McConnell, 19 Wend. 177. And in some States the rule, perhaps, has been changed by statute. See, Elliott v. Nichols, 4 Bush, 502. But statutes abolishing joint tenancy or establishing a rule of construction that a conveyance to two or more per- sons shall, unless otherwise expressed, be construed to create a tenancy in common, and not a joint tenancy, do not include tenancies by entireties which have been held not to come within such acts, and so are not abol- ished by them. Jackson v. Stevens, 16 Johns. 110; Rogers v. Benson, 5 John. COVERTURE. Ch. 437; Wright v. Saddler, 20 N. Y. 323.; Denv. Hardenbergh, 10 N. J. 42; Doe ex dem. Ross v. Garrison, 1 Dana, 35; Rogers v. Grider, 1 Dana, 242; Croan v. Joyce, 3 Bush (Ky.), 454; Brownson v. Hull, 16 Vt. 309; Ketchum v. Walsworth, 5 Wisc. 101; Beach v. Hollister, 3 Hun, 520. But, under the ‘‘ Married Woman’s Law” of Illinois (Pub. Laws of 1861, p- 143), providing ‘‘ that all the prop- erty, both real and personal, . . . which any married woman during coverture acquires in good faith from any person other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her mar- riage, be and remain, during coverture, her sole and separate property, under her sole control, and be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried ; and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her hus- band,” — it is held that, under a deed of land to husband and wife, ‘‘ to have and - to hold the said premises above bar- gained and described, with the appurte- nances, unto the said party of the sec- ond part, heirs and assigns for ever,” the husband and wife take as tenants in common; and, on the husband’s death, the wife would be possessed of one un- divided one-half in fee, with dower in- terest in the other half, which, subject to her dower, would descend to all his heirs by his first and second marriages. Cooper v. Cooper, Sup. Ct. of Ill., Jan- uary Term, 1875; 7 Chicago Leg. News, 409. Whether, at common law, any other than an estate by entirety — viz., an estate in common or in joint tenancy — can be created even by express words in the conveyance to husband and wife, seems not to be fully settled, though the weight of authority seems to be against the proposition. Stuckey v. Keefe, 26 CREW v. KING. , 493 Penn. St. 397;' French v. Mehan, 56 Law, 367, 373. See also 2 Kent, Com. Penn. St. 286; Dias v. Glover, 1 Hoff. 182, note, and authorities cited. Ch. 76; Pollok v. Kelly, 9 Irish Com. A contrary opinion is expressed in 1 This case so well discusses this question that it is herewith inserted at length, omitting only arguments of counsel : — Error to the Common Pleas of Bedford County. Tuis was an action of ejectment by Samuel S. Stuckey, against Samuel Brown and Thomas Keefe, executors of the last will and testament of John Keefe, deceased, for one hundred and ten and one-half acres of land. The parties agreed upon a case stated in the nature of a special verdict, with liberty to either party to sue out a writ of error, as follows : — ‘* 22d October, 1766. A patent issued from the Commonwealth to William Smith, for the land in dispute. : “18th November, 1795. William Smith conveyed the same to Adley and Robert Hemphill, ‘as tenants in common, and not as joint tenants.’ “16th April, 1804. Adley and Robert Hemphill conveyed the land by deed to William Blair, and Rebecca, his wife, their heirs and assigns, ‘as tenants in common, ‘and not as joint tenants.’ ; “ William Blair died about 1830, and Rebecca, his wife, in 1849. They left issue five children: namely, William, Robert, Rebecca, Ann (intermarried with Andrew Satterfield), and Sarah. “ The interest of Ann and William became vested in Samuel S. Stuckey, the plain- tiff, by regular conveyances, before the bringing of this suit. The interests of these two were their interests in the estate of their father, and passed before the death of their mother, pro ut deeds. “26th November, 1844. Rebecca Blair, widow of William Blair, conveyed her interest in the land in dispute to William Blair, her son; who, on the 7th of February, 1852, conveyed the same to John Keeffe. “The deeds herein enumerated to be considered as part of the case stated. “Tf the Court should be of opinion that the right of survivorship existed under the deed from Hemphills to Blair and wife, so as to vest the whole estate in Rebecca Blair, after the death of her husband, William Blair, then judgment to be entered in favor of defendants. Ifof a contrary opinion, then judgment to be entered in favor of plaintiff for two-tenths of the land described in the writ.” The Court below entered judgment for the defendants, and the plaintiff took this writ and assigned the entry of the same for error. Hall and Cessna, for plaintiff in error. Jordan and King, for defendants in error. Lewis, C.J. The land in controversy was formerly owned by Robert Hemphill, who conveyed it to William Blair, and Rebecca, his wife, their heirs and assigns, as tenants in common, and not as joint tenants. William Blair died in 1830. The de- fendants claim under a conveyance from his widow, made in 1844. The plaintiff claims under the heirs of the deceased husband. A conveyance to husband and wife creates neither a tenancy in common nora joint tenancy. The estate of joint tenants is a unit made up of divisible parts ; that of husband and wife is also a unit, but it is also made up of indivisible parts. In the first case, there are several holders of different moieties or portions, and upon the death of either the survivor takes a new estate. He acquires by survivorship the moiety of his deceased co-tenant. In the last case, although there are two natural persons, they are but one person in law, and upon the death of either the survivor takes no new estate. It is a mere change in the properties of the legal person holding, and not 494 COVERTURE. McDermott v. French, 15 N. J. Eq. 78; 215; 1 Bish. Mar. Wom. § 616 e seq., Hicks v. Cochran, 4 Edw. Ch. 110. and notes. ; See also Wales v. Coffin, 13 Allen, The doctrine of tenancy by entire- an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor the same as it would continue in a corpo- ration after the death of one of the corporators. 1 Dana, 244; 7 Yerger, 319. This has been the settled law for centuries. The distinction may seem a nice one, but it is founded upon the nature of marriage and the rights and incapacities which it establishes. Co. Litt. 6; 1 Thom. Coke, 858; 2 Bl. Com. 182; 5 T.R. 652; 2 Vern. 233; Skin. 182; 19 Wend. 175; 8 Rand. 184; 5 John. Ch. 437; 7 Yerger, 319; 1 Barr, 176; 6 W. & Ser. 319. But it is argued for the plaintiff that this is merely a rule of construction for the purpose of ascertaining the meaning of the words usually found in conveyances to husband and wife, and that, where a deed expressly conveys an estate to them to hold as tenants in common, they may receive it, and hold it accordingly. Mr. Preston, in his work on “ Estates,” vol. 1, p. 182, has probably originated this idea. He says that ‘ where lands are granted to husband and wife as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties, as other distinct individual persons would do.” He cites no authority to sustain this position, unless his reference to 1 Inst. was intended for that purpose. But that citation is far from sustaining any such doctrine. It is there said that “if a lease be made to A for life, to a husband in tail, and to a wife for years, each has a third part, in respect to the severalties of their estates.” We do not see how it could be otherwise.” The wife, under her lease for years, acquired no interest in the husband’s estate in tail, and could have no claim to hold it as survivor, in case of the death of the husband; and the husband, by virtue of a conveyance to himself in tail, certainly acquired no interest in his wife’s term. The interest which each would acquire in the estate of the other would not be through the grant to the party acquiring it, but would be such as the law of marriage carves out of the estate granted to his or her companion. It is, therefore, plain that there can be no holding by en- tirety in such a case, where there is a grant of a separate estate distinct in its nature to each. Mr. Preston himself, in his “ Abstracts,” vol. 2, p. 41, qualifies his position very considerably. He there tells us that “a husband and wife may, by express words (at least so the law is understood), be made tenants in common by a gift to them during coverture.” For this he cites no authority whatever. An examination of the authorities will fully show that he was entirely mistaken in the reason on which the rule is founded, as well as in regard to the existence of the alleged exception to it. This, we think, has been satisfactorily shown by the Assistant Vice-Chancellor, in the case of Dias & Burn v. Glover, 1 Hoffman, Ch. 71. If the doctrine to which we refer is not a mere rule for ascertaining the meaning of words, but a rule of law founded on the rights and incapacities of the matrimonial union, it must be obvious that the intention of the parties to the conveyance is entirely immaterial. If husband and wife cannot take a conveyance by moieties, if they are absolutely incapable of receiving such a grant, it is clear that no words in the conveyance to them, however clearly expressed, can give them that capacity. How stands the argument on this question? Tenants in common may sell their respective shares ; they are compellable to make partition; they are liable to reciprocal actions of waste and of account; and, if one turns the other out of posses- sion, an action of ejectment will lie against him. These incidents cannot exist in an CREW v. KING. 495 ties is stated by Chancellor Kent, to There is, however, no tenancy by apply to estates in fee, for life, orfor entirety in chattels. Polk’s Adm’r »v. years. 2 Kent, Com. * 132. Allen, 19 Mo. 467; Price v. Price, 5 estate held by husband and wife. No action of partition or waste or account or ejectment, can be maintained by one against the other. The husband could not sell his moiety free from the dower of his wife. The wife could not sell hers at all with- out the consent of the husband. It is evident, therefore, that the estate during the lives of the grantees, or during the continuance of the marriage bond, would have none of the chief incidents of a tenancy in common. The existence of a tenancy in common which cannot be so held or enjoyed during the lives of the holders, and which has none of the incidents of such an estate, is a legal impossibility. If they cannot hold in common during their lives, of course they cannot so hold after one of the parties is dead. But there is a charm in the equity of equality; and this inclines the mind at first blush to hold that the grantees are entitled to take in equal parts: that is, by moi- eties. Let us pause to look at the equitable manner in which such a doctrine would operate where the grantees were husband and wife. The husband may dispose of his moiety so that the wife can never enjoy any part of it during his life, and at his death she could only receive one-third of it for life Even this she could be deprived of, if her husband had creditors who chose to interfere with her. He may also enter upon her moiety and take the whole profits during his life, or he may sell it to a stranger, or his creditors may take it in execution, and the wife may thus be deprived of it entirely as long as her husband lives! This is the equity of equality which would exist between hushand and wife, if they were capable of holding as tenants in common! Her chance of enjoying any thing under the grant would depend upon the miserable advantage to be derived from the death of her husband. Even then she would get no part of her husband’s moiety except her dower. Not so, if the estate be regarded as an entirety. In that case she is compensated for the control which her husband exercises during his life, by the enjoyment of the whole estate in fee-simple, if she survive him. There is, therefore, more equity in holding the estate to be an entirety than in regarding it as held in moieties. Coke tells us that ‘“‘there can be no moieties between” husband and wife. Co. Litt. 187 5; Thomas’ Coke, 855; 2 Yeates, 462. Littleton says that the reason is that they are one person in law. Ibid. Blackstone tells us that for that reason “ they cannot take the estate by moieties; but both are seised of the entirety.” 2 Bl. Com. 182; 2 Cruise, Dig. 492. If they are “one person in law,” if “there be no moi- eties between them,” if “they cannot take by moieties,” but both “must be seised of the entirety,” the intention to create a tenancy in common is immaterial ; for the rule is that the very same words which create such an estate between other parties create an entirety in husband and wife. The case of Green v. King was deter- mined, not on any supposed intention of the parties to the conveyance, but on the sole ground of the absolute incapacity of the husband and wife, who are regarded as one person in law, to take, during coverture, separate estates. 2 Black. 1211. The case of Rogers v. Benson was decided upon the same ground. 5 John. Ch. 437. Jackson v. Stevens was determined on the same principle of incapacity to take by moieties. 16 John. 115. Sutliff v. Forgey is an authority to the same point. 1.Cowen, 95. Barber v. Harris was also determined on the ground of the incapacity of husband and wife to take either as joint tenants or tenants in common. 15 Wend. 617. In Saul v. Campbell authorities were cited by the Court in affirmance of the same doctrine. 7 Yerger, 319. In Den v. Harding, the same ground was taken. 5 Halst. 48. In Rogers v. Grider, the same principle is affirmed. 1 Dana, 242. Other cases to the same effect might be cited. This doctrine prevails, it is 496 Ala. 578. See, however, Chambovet v. Cagney, 35 N. Y. Sup’r Ct. 486. And as to estates for years held by husband and wife jointly during cov- erture, the busband may alien the en- COVERTURE. Locroft, Cro. Eliz. 287. So that the case of estates for years seems (to say the least) to constitute an exception to the general rule as to the want of power in the husband to alien the tirety so as to bind the wife. Grute v. estate by entirety, if such it be consid- believed, in every State of the Union where the common law furnishes the rule of division [decision]. Chancellor Kent did but reiterate the reason of the rule, when he declared it to be founded, not on any supposed intention of the parties to the conveyance, but on the “unity of husband and wife;” and announced, as the necessary result of that unity, that “they cannot take by moieties.” 2 Kent’s Com. 182; 4 Kent’s Com. 3262. In Hart v. Johnson the conveyance was to husband and wife, and another person, “as tenants in common, and not as joint tenants.” One of the judges of the District Court of Philadelphia, in a learned and able dissenting opinion, demonstrated, beyond all doubt, that these words, according to every reasonable rule of construction, applied to all the grantees named in the dged, to the wife as well as to the, husband, and to the husband as well as to the other grantees. 3 Penn. Law Journ. 348. But the words were nevertheless held imperative [inoperative] as between husband and wife. They were not allowed to create an estate different in its nature from that estab- lished by law. 6 W. & Ser.319. No substantial reason can be assigned in support of this decision, but that upon which the whole doctrine.in question is founded, — the absolute incapacity of husband and wife to take as tenants in common. An attempt has been made to impair the force of this authority by the suggestion that the tenancy in common by which the husband and wife held one moiety of the land, and.the other grantee held the other moiety, fully carried out ‘the intention of the grantor; but this, as already shown, was clearly not the case. The intention of the parties was controlled, so far as regards the grant to the husband and wife. But what answer can be given to the case of Dias & Burn v. Glover, 1 Hoffman, Ch. 71% In that case the conveyance was to husband and wife alone, to hold ex- pressly ‘‘ as tenants in common, and in equality of estate, and not as joint tenants.” The express grant to them to hold as tenants in common was entirely borne down by the rule of law. There was no third grantee in that case. The words were not permitted to have any operation whatever in creating a tenancy incommon. They were rendered nugatory by the incapacity of husband and wife to take as tenants in common, and the case was decided on the principle which governs all grants to hus- band and wife. Like the rule in Shelly’s case, it operates irrespective of the inten- tion of the parties. But where an estate is conveyed to a man and a woman who are not married, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after marriage. 2 Cruise’s Dig. 494; Plowden’s Queries, 180, 183 ; 2 Plowden, 483. Their subsequent marriage may entitle the woman to dower in the man’s moiety, and the man to curtesy in the woman’s estate, but it cannot have the extraordinary effect of converting into entirety two estates which were several in their creation. In such a case the interest which each acquires in the land of the other is not by virtue of the original grant, but is a consequence of the matrimonial relation subsequently contracted. The principles applicable to such cases have no place where the husband and wife, during coverture, are parties to the conveyance. This opinion is of course confined to the case before us, which is that of a conveyance to husband and wife, before the act of 1848 relative to married women. The judgment of the Common Pleas is to be affrmed. Judgment affirmed. ROBERTSON ered in the case of chattels real; and the better opinion would seem to be that there is no technical estate by en- tireties in chattels real, this leading characteristic of such estate being want- ing. See the subject considered in 1 Bish. Mar. Wom. § 620, note (2). As to the general power of the hus- band over estates by entireties, it seems settled that, though he cannot alien the entire estate, so as to bar the survivor- ship of the wife, yet he has an interest of his own jure mariti, during covert- ure, which he can mortgage or convey either in part, as by lease, or during the entire existence of the coverture. Topping v. Sadler, 5 Jones, Law (N. C.), 357; Barber v. Harris, 15 Wend. 615; Jackson v. McConnell, 19 Wend. 175; Torrey v. Torrey, 14 N.Y. 482; Ames v. Norman, 4 Sneed, 683 ; Fairchild v. Chastelleux, 1 Penn. St. 176. And the better opinion (though there is some contrariety of opinion) seems to be that such interest may be seized and sold by his creditors to sat- v. NORRIS. 497 isfy his debts. Ames v. Norman, 4 Sneed, 683; Bennett v. Child, 19 Wisc. 3865; Stoebler v. Knerr, 5 Watts, 181; French v. Mehan, 56 Penn. St. 286; Beach v. Hollister, 3 Hun, 520. And it is held that a purchaser at an execution sale, not made with reference to the contingency of a divorce, is not affected by a subsequent divorce a vin- culo, but becomes invested with the right to occupy and enjoy the profits of the land as owner, during the joint lives of the husband and wife, subject to the contingency, that, if the wife so divorced survives her husband, the pur- chaser's estate will then terminate ; but that, if the husband survives, such pur- chaser will become the absolute owner of the wholeestate. Ames v. Norman, 4 Sneed, 683; Beach v. Hollister, 3 Hun, 519. See, however, Wood v. Simmons, 20 Mo. 363; Tuttle v. Fowl- er, 22 Conn. 63. Ames v. Norman is a case of considerable interest. Mc- Kinney, J., delivered the opinion of the Court, which is as follows: ! — 1 “ This was a bill for a divorce, and likewise to have the title to a tract of land divested out of the defendant Norman, and vested in the complainant. The Chan- cellor decreed for the complainant, both as against the husband and the defendant Norman. The former acquiesced in the decree of divorce, and the case is brought here by Norman, in whose behalf it is insisted that the decree divesting him of title to the tract of land in the pleadings mentioned is erroneous. “ The facts upon which the question arises are these: On the 81st of January, 1835, some time after the marriage of the complainant and the defendant, William Ames, one Lawrence Sypert conveyed to them jointly a tract of land situate in Wilson County, containing fifty-four acres, for the consideration, as recited in the deed, of three hundred and thirty-three dollars. This deed of conveyance was properly proved and admitted to registration on the day of its execution. The bill alleges, and the deed recites, and there is proof tending to establish the fact that the pur- chase-money of said tract of land was part of the distributive portion of the com- plainant of the estate of her deceased father. On the 14th of May, 1853, said tract of land was sold at execution sale, in satisfaction of a judgment against the defend- ant, William Ames; and the defendant, Norman, as a creditor of Ames, afterwards redeemed the land from the purchaser at said sale previously to the filing of the present bill, and, by virtue of the title thus acquired, he resists the right of the com- plainant to recover the:-same. And the question for our determination is, Can he successfully do so? Upon this precise question we have found no direct adjudica- tion ; but upon principle we think the question is free from doubt. “The first question to be considered is, Had the husband such an interest in the land of which he and his wife were jointly seised as was subject to seizure and sale 82 498 COVERTURE. on execution by his creditors? And, if so, is the interest or title of the purchaser at execution sale subject to be divested, or in any way affected, by a subsequent divorce a vinculo matrimonii granted to the wife ? “ First. By the common law the husband and wife are as one person in law; the legal existence of the wife is incorporated into that of the husband; and though, in modern times, exceptions to this doctrine have been introduced, the general principle stillexists. As one of the necessary results of this unity of persons in husband and wife, it has always been held that, where an estate is conveyed or devised to them jointly, they do not take in joint tenancy; constituting one legal person, they cannot be vested with separate or separable interests. They are said, therefore, to take by en- tireties; that is, each of them is seised of the whole estate, and neither of a part. And this tenancy may exist whether the estate is in fee, for life, for years, or other chattel interest, and whether the property be in possession, reversion, or remainder. Co. Litt. 187 6; 1 Bright’s Husband and Wife, 25. As a consequence peculiar to this tenancy, it is laid down in the books that, during their joint lives, neither can alien the estate thus held, without the consent and concurrence of the other, and the sur- vivor takes the whole estate; neither can sever the joint interest; the whole estate belongs to the wife as well as to the husband, and the husband cannot by his own conveyance, the wife not joining therein, divest her estate. 1 Greenleaf’s Cruise, 865 ; 2 Bl. Com. 182; 2 Kent’s Com. 132; 4 Kent, 863. From the peculiarity of this tenancy, the unity and indivisibility of the seisin, there is some confusion in the cases respecting the power of the husband alone to make any conveyance or disposition of the land thus held during their joint lives, and also as to the right of creditors of the husband to subject the same to the satisfaction of the husband’s debts. But on exam- ination of the authorities it appears to be settled that, during their joint lives, the husband may. dispose of the estate. He may lease or mortgage it, or it may be seized and sold upon execution for his debts. The doctrine, properly understood, is, that the husband, without the wife’s joining him in the conveyance, cannot alien the estate so as to affect the interest of the wife in case she survives him, as in that event she will be entitled to the whole. . 4 Kent’s Com. 868. Nor will the wife’s interest be affected by the attainder of the husband; she will on surviving take the whole estate. By the attainder of the husband of felony, the crown will not acquire the fee, but only the pernancy of the profits during the coverture of the wife. Co. Litt. 351. “It seems, therefore, that, notwithstanding the peculiar nature of this tenancy, the husband, during the coverture, acquires substantially the same rights and power of disposition of the estate thus held that he does in regard to the wife’s individual estate owned by her at the time of her marriage. Consequently it follows that the husband, without the consent or concurrence of the wife, can charge such estate at ‘law with his debts; that he may transfer it; that it may be seized and sold by his creditors. But the assignee of the husband, or purchaser at execution sale, can acquire no other or greater interest than was vested in the husband ; and conse- quently he holds in subordination to the contingent right of the wife, who, in case she survives the husband, becomes absolute owner of the whole estate. So, on the other hand, if the husband survives, the purchaser from him or at execution sale becomes owner in fee of the entire estate. 1 Dana, 242; 15 Wend. 615; 19 Wend. 175. Q “ Secondly. It being established that the interest of the husband in such an estate may be sold on execution for the satisfaction of his debts, we proceed to inquire whether the title of the purchaser is liable to be affected by a divorce a vinculo after- wards granted to the wife. The decree in this case would seem to take it for granted, that, upon a dissolution of the marriage by a divorce at the suit of the wife, the same legal consequences follow in all respects as if the marriage had been dissolved by the ROBERTSON ¥, NORRIS. 499 death of the husband. This is a very erroneous assumption, so far at least as relates to the question under consideration. “Tn England, divorces @ vinculo matrimonii are granted only for such causes as, by the ecclesiastical law, are sufficient to avoid the marriage in the spiritual Court; and in such cases the marriage is declared void, as having been absolutely unlawful ab initio. 1 Black. Com. 485, 440. In a divorce of this kind, grounded upon the nullity of the marriage contract, it is said in the books that the husband acquires no right over the wife’s property; though in some of the authorities a distinction appears to be taken between the wife’s personal and real property. If the husband before the divorce had disposed of the goods of the wife without collusion, it seems she was without remedy ; but, if the sale or gift were collusive, she might recover the goods so far as they could be traced, and for the rest, as money, &c., she might sue in the spiritual Court. 2 Bright’s Husband and Wife, 364, 865. This distinction, perhaps, arose out of the doctrine maintained by the Courts of common law, that marriages contrary to the ecclesiastical law, though voidable, were not ipso facto void until sen- tence of nullity were pronounced. “In regard to the wife’s real property, it is settled that, if the husband aliened the land of the wife, of which he was seised in right of the wife, and a divorce was after- wards obtained, the wife’s right remained unaffected by the husband’s conveyance ; such conveyance did not work a discontinuance of her estate, and by construction of the statute 32 Henry VIII. it was held that she might immediately enter. “ And, more directly to the point under consideration, it is laid down that, if hus- band and wife purchase an estate jointly, and are disseised, and the husband releases, and afterwards they are divorced, the wife shall have the moiety, though before the divorce there were no moieties, for the divorce converts it into moieties. Bright’s Husband and Wife, vol. i. 25, 162, 165; id. vol. ii. 864. This must necessarily be so; for although in such case the relation of husband and wife existed de facto at the time the conveyance was made to them jointly, yet, in contemplation of law, that unity of persons out of which this anomalous tenancy springs, and on which alone it depends as a mere incident, never did exist ; and, as some effect must be given to the conveyance, the divorce is regarded as having severed the entirety, and turned it into moieties. i “It would seem reasonable that this principle should be held equally applicable to cases where a marriage lawfully contracted is dissolved by a divorce u vinculo, for some supervenient cause, as frequently happens under our law, though its application is perhaps not so easy in such cases as where the marriage contract was void ab initio. “Tf the rights of husband and wife in relation to an estate held by entireties are not altered by the decree declaring the divorce, what becomes of the joint estate ? what are the respective rights in the future in regard to it? They are no longer one legal person; the law itself has made them “twain.” They are no longer capable of hold- ing by entireties; the relation upon which that tenancy depends has been destroyed; the one legal person has been resolved by judgment of law into two distinct, indi- vidual persons, having in the future no relations to each other ; and with this change of their relations must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold by a joint seisin, they must hold by moieties. The law, in destroying the unity of persons between them, has, by necessary consequence, destroyed the unity of seisin in respect to their joint estate; for, independent of the matrimonial union, this tenancy cannot exist, And hence it has been held that a conveyance to a man and woman while single, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. 1 Institutes, 187 . “ But, if this reasoning be correct as between the husband and wife, the question 500 COVERTURE. Marston v. Norton. (5 N. H. 205. Superior Court of Judicature of New Hampshire, August Term, 1839.) Wills of Femes Covert. — A married woman cannot make a will of lands, either with or without the assent of her husband. Tus was an appeal from a decree of the judge of probate in this county, made on the 11th June, 1828, allowing and approv- remains, What effect has the divorce upon the rights of a third person who has ac- quired the interest of the husband by purchase at execution sale prior to the divorce ? “We are of opinion that the subsequent divorce has no effect whatever upon the rights of such purchaser. It is true the purchaser at execution sale succeeds merely to the rights of the husband in the estate; that is to say, he acquires no other or different right, either as regards the quantity or quality of estate, than was possessed by the husband; and he takes it subject to all the rights, legal or equitable, existing in favor of third persons at the time of the sale. But still the purchaser is not to every intent and purpose placed in the shoes of the husband. On the contrary, he holds the estate independent of the husband and of his future creditors, and entirely ° free from all future accidents or contingencies that might, as against the husband, if the title had remained in him, have directly or indirectly affected the estate. “The purchase, in the present case, was not made in view of the contingency of the wife’s divorce at some future period, and cannot be affected by it. “ The defendant by his purchase became invested with the right of the husband as it existed at the time of the sale; that is, a right to occupy and to enjoy the profits of the land as owner during the joint lives of the husband and wife ; subject to the contingency, that, if the complainant survives her former husband, his estate will then terminate; but, if the husband survives, he will become absolute owner of the whole estate. “ The only remaining inquiry is, whether the act of 1849-50, c, 86, has any appli- cation to this case. And we think it has not. This act only protects from the creditors of the husband the interest in the wife’s lands vested in him jure uzoris. In other words, it is applicable only to cases where the fee is in the wife alone, and not to cases where they are jointly seised in fee. There is much force in the sugges- tion, that to extend the act by construction to a case like the present would place it in the power of the husband, by resorting to mere forms of conveyancing, to put his entire real estate beyond the reach of his ereditors. “No equity can arise in favor of the complainant in this case, in consequence of the land having been purchased with money derived from her father’s estate. The money had been previously reduced to possession by the husband, and in law it thereby became his money. “The only claim that can be admitted on the part of the complainant in the present case, rests alone upon the doubtful contingency of her outliving her former husband. In that event, she will instantly become absolute owner of the entire tract of land; in the contrary event, she will have no interest in the land whatever. “The decree will be reversed, and the bill be dismissed as to the defendant Norman but without prejudice to any future right which by possibility may arise in complain- ant’s favor.” MARSTON v. NORTON. 501 ing, in solemn form, a certain instrument as the last will and testament of Esther Norton. It was agreed by the parties that the said instrument, which purported to contain a devise by the said Esther of all her real estate to W. Norton, her husband, for life, and, after the decease of her husband, to John Norton in fee, and to appoint John Norton executor, was duly made, executed, witnessed, and published by the said Esther, as her last will and testament ; that, at the time of making and publishing the same, the said Esther was of sound mind, and was the wife of the said W. Norton; and at the time the said instrument was executed, and in presence of the same witnesses, the said W. Norton made, signed, and sealed a memorandum under the said instrument as follows: ‘I, the said William Norton, husband of the said Esther Norton, do consent and agree that my wife, Esther Norton, should dispose of her real estate according to the above will.” , Thomas Marston, the appellant, is one of the heirs at law of the said Esther. The reason assigned for this appeal was, that the said Esther was, at the time of executing and publishing said instrument, a feme covert ; and the question was, whether the decree must be reversed for that cause ? Tilton, for the appellant [cited Osgood v. Breed, 12 Mass. 525; Lovelass, 144; Godol. Orphan’s Legacy, 29; Sheppard’s T. 402; Dublin v. Chadbourne, 16 Mass. 483; 12 Mass. 581; 1. Pick. 549]. Mason, Jr., for the appellee [cited 1 Reeves’s Hist. 11, 111; 8 Turner’s Hist. Anglo-Sax. 73; Beame’s- Glanville, 140; Glan- ville, 163; Bracton, 60; 1 Bro. Civil Law, 298; 4 Reeves’s Hist. 68; 4 Burn’s Eccl. Law, 47, 59; 1 Sander’s Uses, 80; Com. Dig. Devise, G. and H.; Rolle’s Ab. 608; Gilb. Dev. 18; 4 Mason, 489}. Ricuarpson, C. J. The question in this case is whether a married woman can, with the consent of her husband, dispose of her real estate by a will? In ancient times, no lands or tene- ments were by the common law of England devisable by the last will of any person, except in particular places by custom. Coke, Litt. 111 6, and note 1; Litt. sec. 167; Wright’s Tenures, 171-178 ; 6 Coke, 17, Wild’s case; Cowper, 305. And by the common law as it was understood in the reign of Henry II., a man’s goods were not wholly at his own disposal 502 COVERTURE. by will; but his wife and children had an interest in them, of which he could not deprive them by a will. The shares of the wife and children were called their rationabilis pars, and the writ de rationabili parte bonorum was given to enforce the claim. 2 Bl. Com. 491; Fitzh. N. B. 284; Coke, Litt. 176 6. It seems to have been settled in very ancient times that a married woman might, with the assent of her husband, dispose of her chattels by will. Bracton, 60; Moore, 339, Finch v. Finch ; Cro. Car. 106, Johns v. Rowe; Lovelass, 143-146. But, by the common law, a feme covert never could make a valid devise of land, with or without her husband’s consent, to any person whatever. Godol. 801; Shep. T. 402; Com. Dig. Devise, H. 8; Lovelass, 96; 8 Johns. Ch. 523, Bradish v. Gibbs; 4 Mason, 448, Picquet ». Swan. She was considered to be so entirely under the power of the husband that she could in no case make what in propriety of speech is called a will. 4 Burn’s Eccl. Laws, 49; Powell on Devises, 97. By the statute of 32 H. VIII. c. 1, it was enacted, “that all and every person and persons having a sole estate or . interest in fee-simple, or seised in fee-simple, in coparcenary, or in common of any manors, lands, &c., shall have power to give, dis- pose, will, and devise, by will, in writing or otherwise, by act executed in his lifetime, all his said manors,” &e. The language of this statute was broad. enough to include all persons. But it seems to have been thought by the Courts of common law that, upon the construction of statutes, not the mere letter, but the internal meaning and sense of the legislature, was to be considered ; and, although this statute gave power to every person having land to devise it, yet it was thought that it could not have been the intention of the makers of the statute, that persons who were disabled by the common law to dispose of their lands by other conveyances should have the power to devise it ; therefore, in expounding that statute, a married woman was con- sidered as not comprehended under these general words. Powell on Devises, 98-95. And, as soon as an attempt was made in the ecclesiastical Courts to establish the wills of married women, it was enacted by parliament that wills of lands by married women should not be taken to be good in law. 4 Burns, 46. In Massachusetts, by a statute passed in 1692, it was enacted, ‘that every person lawfully seised of any lands, &c., in his own proper right, in fee-simple, shall have power to give, dispose, and devise, as well by his last will and testament in writing as other- MARSTON ¥v. NORTON. 503 wise, by any act executed in his life, all such lands,” &c. Prov. & Col. Laws, 280. And the statute of 1783, c. 24, contains a provision substantially in the same language. In the case of Osgood v. Breed, to which we have been referred by counsel, it was decided by the Supreme Court of Massachusetts, that married women have not power under their statute to make a will of lands, even with the consent of their husbands. Our provincial act of the 4 Geo. I. c. 738, was copied verbatim from the said statute of Massachusetts passed in 1692. Prov. Laws, 104. * The statute of February 3, 1789, enacted, “ that every person lawfully seised and possessed of any estate in lands, &c., of the age of twenty-one years and upwards, and of sane mind, shall have power to give, devise, and dispose of the same, as well by his last will and testament in writing as by any other act duly executed,” &e. The statute of July 2, 1822, contains a provision on this sub- ject, substantially the same as the said provision in the statute . of February 3, 1789. It thus appears that the provisions on this subject in the statutes of England and of Massachusetts are almost precisely the same as in our statutes, and we are of opinion that the construction upon these provisions in relation to married women in England and Massachusetts are entirely correct. A married woman is not by the common law sui juris, but is sub potestate viri. She is under a civil disqualification arising from want of free-agency, and not from want of judgment, and it seems to us to be wholly incredible that the legislature should have intended to give to a married woman the power of devising her lands at her decease, while the power of disposing of them at her will is denied to her during her life. Her will of chattels may be made valid by the assent of her husband, because the gift is, in effect, his gift, and the property passes from him. But with respect to her real estate, the case is different. Her lands at her decease go not to him but to her heirs, and his assent to her will of real estate can give it no validity. Decree of the Court below reversed. See next case and notes. 504 COVERTURE. Cutter v. BUTLER. (25 N. H. 343. Superior Court of Judicature of New Hampshire. December Term, 1852.) 1 Wills of Married Women. Assent of Husband thereto, and Probate thereof. — A married woman by the assent of her husband may make her will of real or personal chattels, or choses in action in which her husband has an interest, or of personal property, of which he is sole owner, and her bequests will be valid. Such a will,operates as to the husband’s property or interest, as a gift from him. Evidence that the husband, before and during the marriage, assented that the wife should make a will of the property she had before marriage ; that the will was proved in solemn form, without objection from the husband ; and that the husband, being present when the inventory of the wife’s property was made, pointed out the articles which belonged to her, and suffered the executor to take them away without objection, — was held competent. evi- dence of the husband’s assent to the will. The assent of the husband, once given to the wife’s will after her decease, is binding and cannot be revoked. The will of a married woman must be proved in the Probate Court, and the deci- sion of that Court is conclusive as to her capacity to make a will, and as to its due execution, and as to the assent of the husband. Trover. The plaintiff proved that the articles in question were the property of his wife, Hannah A. Cutter, at the time of his intermarriage with her; that she afterwards died, and the prop- erty came into the defendant’s possession; and upon a demand for it, on the fourth day of June, 1850, he refused to deliver it to the plaintiff. ‘The defendant offered to prove that before said marriage the plaintiff verbally assented that said Hannah should have her own property to her own use and disposal, and after the marriage talked with her about making a disposition of her property, and went with her to a magistrate for the purpose of her making her will, and memoranda were then furnished to the magistrate in order that he might write a will, though for some cause he did not write one, and that on the 5th day of May, 1850, the will of the said Hannah, executed during her coverture, reciting that she had property to her sole and separate use, was proved in solemn . form before the Judge of Probate, and the defendant, by virtue of said will and the decree of said judge, was appointed her executor, and on the 7th day of May, 1850, returned an inventory of her estate, including therein the chattels now in controversy. CUTTER v. BUTLER. 505 And that the plaintiff was present when said inventory was taken, and pointed out to the defendant and appraisers the said chattels as articles belonging to the estate of said Hannah, sepa- rating them from others which he claimed as his own, and on the same day the defendant, as executor, took said articles into his own possession without objection on the part of the plaintiff. The Court ruled that the facts proposed to be shown would not constitute a defence, to which ruling the defendant excepted. A verdict was taken for the plaintiff, which the defendant moved to set aside, because of the said ruling. Atherton and Sawyer, for the defendant. A. F. Stevens, for the plaintiff. Bett, J. At common law, a will made by a married woman, disposing of her freehold estates, was entirely void. Shep. Touch. 402; 2 Bla. Com. 497; 2 Kent, Com. 170; 4 Kent, Com. 505; 3 Com. Dig. 15, Devise H. 3; Lov. Wills, 96; Pow. Dev. 97; Burn’s Ec. Law, 49; Marston v. Norton, 5 N. H. 205; Osgood v. Breed, 12 Mass. 525; West v. West, 10 S. & R. 445; Fitch -v. Brainard, 2 Day, 163; Bradish v. Gibbs, 3 Johns. Ch. 528 ; Picquet v. Swan, 4 Mason, 443. Where her lands were placed in the-hands of trustees, subject to be disposed of by will, a married woman might devise them by an instrument in the nature of a will, but which would be more properly an appointment, deriving its validity from the settlement or conveyance in trust. 2 Kent, Com. 170; 4 id. 505; Pridgeon v. Pridgeon, 1 Ch. Cas. 117; Rex v. Bettesworth, 2 Stra. 891; Fettyplace v. Gorges, 3 Bro. C. C. 8; Holman ». Perry, 4 Met. 492; Southby v. Stonehouse, 2 Ves. Sen. 612. In this State, by the statute of 1845 (2 Laws, p. 285), a married woman is enabled to dispose of her real estate by will. Such will must, like others, be proved in the Probate Court. The power thus given extends to all lands, tenements, and here- ditaments, and all rights thereto and interests therein, whether legal or equitable. Rev. Stat. c. 1, § 17. ' There is, however, a proviso, that such will shall in no case _ affect injuriously the rights acquired by the husband in any estate so devised, by virtue of the marriage contract. No statute has been passed here giving to married women the general power to dispose of personal property by will. By the Revised Statutes, c. 149, § 8, it is provided. that, 506 COVERTURE. whenever any married woman shall be entitled to hold property in her own right and to her own separate use, she may dispose of said property by will, as if she were sole and unmarried. The principle declared by this statute has long been an admitted principle in equity, Peacock v. Monk, 2 Ves. Sen. 190; Fetty- place v. Gorges, 1 Ves. Jr. 46, s. c. 8 Bro. CO. C. 8; Rich ». Cockell, 9 Ves. 869; and, in the ecclesiastical Courts, Tappenden v.Walsh, 1 Phill. 352; Spitty v. Bailey, 16 Jur. 92,8. c. 10 L. & E. 570; and may well be regarded as merely declaratory of the common law, 2 Kent, Com. 170; Holman v. Perry, 4 Met. 492; West v. West, 8 Rand. 373; Emery v. Neighbor, 2 Hals. 142; Strong v. Skinner, 4 Barb. S. C. 546; Society v. Wadhams, 10 Barb. S. C. 597. By the statute of 1846 c. 827 (2 Laws, 307), married women have the same rights as they would have if unmarried, as to all such property as may have been secured to them to their own sole and separate use by a written contract entered into before marriage, or which may have been conveyed or devised to such married woman for such sole and separate use after the marriage. Under this statute no trustee for the wife is usually necessary. But, as the husband is not empowered to convey any of his property to his wife in any other manner or with any other effect than he could do before the passage of the act, his convey- ances must be made, as at common law, through the medium of a trustee. But the equitable interest so conveyed would be equally at the disposition of the wife by her will, as her legal estates, if the conveyance is in other respects valid. 1 Bla. Com. 442; 2 Kent, Com. 129; Rev. Stat. c. 1, § 17. By the Revised Statutes, c. 149, § 83, when any husband shall have deserted his wife, and remained absent for three months, without making provision for the support of herself and her children ; or when any cause of divorce exists, or any facts which, if continued, may be such cause, and the wife is the injured party, — she will be entitled to hold in her own right and to her separate use any property acquired by her by descent, legacy, or otherwise, and may dispose of the same without the interference. of her said husband or of any person claiming under him. And by § 4, if any woman being the wife of an alien, or of a citizen of any other State, shall have resided in this State for the term of six months successively, separate from her husband, she may acquire and hold property in her own right, &ec. CUTTER v. BUTLER. 507 No other provisions of the statutes of New Hampshire are recollected which apply to the wills of married women. Sec. 1 of chapter 156 of the Revised Statutes might seem broad enough to include the case of married women. ‘“ Every person of the age of twenty-one years, and of sane mind, may devise and dispose of his property, real and personal, and of any right or interest he may have in any property, by his last will in writing.” But it has never been held to apply to the case of married women. Marston v. Norton, 5 N. H. 205; Osgood v. Breed, 12 Mass. 525; Anon. Dyer, 854; Pow. Dev. 140; Morse v. Thompson, 4 Cush. 562. The cases which do not fall within these statutes must of course stand upon the general grounds of the common law. The following cases are recognized in the books which have come under our observation, in which at common law a married woman may make a will. 1. A married woman, executrix, might make a valid will of the personal property held by her in autre droit as such executrix,} Shep. Touch. 402; God. Orph. Leg. 110; Plowd. 526; Fitzh. Executor, 109; 2 Bla. Com. 497; 3 Com. D. 15, Dev. H. 3; Lov. Wills, 166 ; and without her husband’s consent, Scammell v. Wilkinson, 2 East, 552; Stowe v. Drinkwater, Lofft. 483. But by the Revised Statutes, c. 158, § 9, marriage extinguishes the trust of an executrix or administratrix, and this case can never arise here. 2. A woman, whose husband has been banished for life by an act of Parliament, may make a will. Co. Litt. 183 a; Shep. Touch. 402; Duchess of Portland v. Progers, 2 Vern. 104; Compton v. Collinson, 2 Bro. C. C. 385; Ex parte Franks, 1 Moo. & Sc. 1. So if her husband is transported, Newsome v. Bowyer, 3 P. W. 37; Goods of Martin, 15 Jur. 686, 8. c.5 L. & E. 586; or is an alien enemy, Deerly v. Mazarine, 1 Salk. 116; Lov. on Wills, 266. Cases may perhaps arise here within the principle of these cases. 1 See also Tucker v. Inman, 4 M. & G. 1076. But the right of the husband .attaches to such chattels as the wife has reduced to her possession as executrix, and the wife. cannot dispose of them by will, the rule above stated applying only to the chattels to which she is entitled, but which are not yet reduced into possession. Scammell v. Wilkinson, 2 East, 552; Per Lord Tuurtow in Hodsden v. Lloyd, 2 Br. C. C. 548; 1 Wms. Ex’rs, 48 et seg.; 1 Redf. on Wills, * 23; Schouler’s Dom. Rel. 253. 508 COVERTURE. 8. Personal property may be holden in trust, subject to the dis- posal of a married woman by her will, which she may not be entitled to hold in her own right nor to her separate use, so as to bring her case within the terms of the Revised Statutes, c. 149, before cited. In such case her will relating to such property will be valid and effectual by virtue of the power, as in the case of real estate at common law before stated, not as a will strictly, but as an appointment in nature of a will. 2 Kent, Com. 170; 4 id. 505; Lov. Wills, 266 ; Southey v. Stonehouse, 2 Ves. 212; 2 Bla. Com. 497. But still such will, to be effectual, must be proved in the Court of Probate. Lov. Wills, 266 ; Stone v. For- saith, Doug. 707; Cothay v. Sydenham, 2 Bro. C. C. 391; Osgood v. Breed, 12 Mass. 525. 4, The husband may agree with wife, or with one of her friendly as trustee for her, either pelore the marriage or after the marriage, upon a sufficient consideration (1 Roper, Hus. & Wife, 169), to allow her to dispose of certain property, or of a certain amount ‘of personal property, by will; and such an agreement will be held binding upon the husband in equity, and her will will be held valid as an appointment under the power given her by such con- tract, and that without the assent of her husband. Lov. Wills. 266 ; Newburyport Bank v. Stone, 13 Pick. 420; Tilley v. Pierce, Cro. Car. 876. Such a will, it is said, cannot be proved as such, without the assent of the husband; but it may be proved asa testamentary paper, and will derive its effect from the agreement of the husband, who will be held to its specific performance. 2 Roper, Hus. & Wife, 188; 2 Black. Com. 498; Stone v. Forsaith, Doug. 707, note. If a married woman has any pin money, or separate maintenance, she may dispose of her savings thereout by any writing, in the nature of a will, without her husband’s con- sent. Lov. Wills, 266; 2 Black. Com. 498; Prec. in Ch. 44. 5. By the assent of the husband, the wife may devise her chattels real. 2 Black. Com. 497; Dr. & St. 1 Ch. 7. The phrase “real estate” in the statute of 1846 is sufficiently com- prehensive to include this class of interests, but they are excluded from the operation of this statute by the proviso before referred to. Such chattel interests at common law survive to the hus- band if he outlives his wife: 2 Kent’s Com. 134; Went. Ex. 196 ‘ 2 Black. Com. 497 ; Ognell’s case, 4 Co. 51; Moody v. Matthews, T Ves. Jr. 183; and her will, if carried into effect, must, there- CUTTER ¥, BUTLER. 509 fore, injuriously affect his interest in relation to them. Her will as to these is valid on common-law principles only. 6. She may dispose, by her will, of her choses in action, in- cluding debts and contracts due to her, and her right of action for goods carried away [biens asports] before the marriage, by a like assent on the part of the husband. Johns v. Rowe, Cro. Car. 106; Finch v. Finch, Moor, 339, s. c. 2 And. 92; Anon. 1 Mod. 211 ;1 Scammell v. Wilkinson, 2 East, 552; Stevens v. Bagwell, 15 Ves. 189; Shep. Touch. 402; 2 Bro. Abr. Testament. Such interests the husband, besides his right to collect or assign them at his pleasure during the life of the wife, has a right to claim for © his own benefit after her decease, subject, however, to the burden of administering her estate, and to the payment of her debts. 2 Kent’s Com. 135; 2 Black. Com. 515; Whitaker v. Whitaker, 6 Johns. 112; Went. Ex. 197. 7. She may, by her husband’s assent, bequeath by will the personal chattels in possession which belonged to her at her mar- riage, or which have fallen to her afterwards. These, by the policy of the old law, became instantly upon the marriage, or upon their subsequent acquisition, the absolute property of the husband. Co. Litt. 351-356; 2 Kent’s Com. 148; Went. Ex. 196 ; Lov. Wills, 266. This ancient policy is in itself both unjust and absurd ; and at the present time the rights of the husband to this kind of property,” as well as to the wife’s choses in action, is regarded rather as a marital right, which he may insist upon or waive, as he pleases, and which, if he does waive, the goods, as between him and her representatives, remain the property of the wife. Such waiver may be shown by an agreement on the part of the husband, either before or after the marriage, that the property should remain hers, or that he should allow her to dispose of it by will, or by any agreement by which it should appear that the right of the property as between them is to remain in the wife. 1 Roper, Hus. & Wife, 169; Estate of Wagner, 2 Ash. 448; Parsons v. Parsons, 9 N. H. 321; Marston v. Carter, 12 N. H. 164; Wheeler v. Moore, 138 N. H. 481; Coffin v. Morrill, 2 Foster, 352. 8. The wife, without any previous agreement, or any claim to 1 Brook v. Sir Wm. Turner ; s. c. 2 Mod. 170. 2 See Hall v. Young, 37 N. H. 184, 144, 145; 1 Bish. Mar. Wom. §§ 121-126, as to this doctrine’s being peculiar to the State of New Hampshire. 510 COVERTURE. the property which can be directly shown, may assume to dispose- by her will of the personal property of the husband ; and, if the husband afterwards voluntarily assents to such will, it will be effectual to pass the property, and will be a good and valid will, on the ground that such assent is evidence of an agreement be- tween them that the wife should have a right to make such dis- posal of the property, and of competent authority given by him to her to make it. Swin. Wills, 89; 1 Rob. Wills, 23; Shep. Touch. 402; and 1 Bro. Abr. 236, Devise, 34, where it is said a feme covert, by the assent and will of her husband, made a will, and devised the half of the goods of her husband and made her executor, who proved the will by the assent and will of the hus- band, and [her will was held] good. Otherwise it seems, if the husband prohibit the proving of the wife’s will after her death ; for then the whole is void, for the husband may countermand it. And this happened at St. Albans in the 24 Henry VIII. Several of these cases agree in one respect, and stand upon the same reason. In these, the will operates directly to affect the rights of property of the husband, though not in all to the same degree. These are the devise of the chattels real, and of the choses in action of the wife, of the chattels in possession of the wife, and of the personal property of the husband, where the will does not take effect by virtue of any power of appointment. In these cases the property is either in part, or absolutely and entirely the property of the husband, and the title to it under the will of the wife, so far as it affects his interest, passes from him to the legatee, and it is his gift. Anon. Mod. 211; Went. Ex. 196; Prest. Touch. 402; Peacock v. Monk, 1 Ves. Jr. 190; Pow. Dev. 164; Osgood v. Breed, 12 Mass. 525. Where the interest or rights of the husband are thus affected by the will of the wife, it is settled by decisions of the Courts, too often re- peated to be disregarded, that the will of the wife is entirely ineffectual without the assent of the husband. Johns v. Rowe, Cro. Car. 106; Richardson v. Seize, 12 Mod. 306; Shardelow v. Naylor, 1 Salk. 813; 1 Rob. Wills, 23 ; Ognell’s case, 4 Co. 48; Lov. Wills, 266; 2 Black. Com. 497; 2 Kent’s Com. 170. It therefore becomes material to inquire what is a sufficient assent of the husband to render such a will effectual. The fol- lowing principles may, we think, be fairly deduced from the cases and books which have been found to bear on the subject : — CUTTER ¥. BUTLER. 611 A general assent that the wife may make a will is hardly suffi- cient. There must ordinarily be evidence of an assent to the particular will which is made by the wife. 1 Rop. Hus. & Wife, 169; King v. Bettesworth, 2 Stra. 891; 2 Black. Com. 497; 1 Bro. Abr. Devise, 34.1 If there is a previous assent or agreement of the husband that the wife should make a will, very slight evidence of assent after- ward to a will in accordance with such agreement, will be suffi- cient. 1 Rop. 169; Brook v. Turner, 2 Mod. 170. At one period, it was held that the husband must assent at the time of the probate, Swin. Wills, pt. 2, § 9, pl. 10; 1 Burn’s He. Law, 52; Henley v. Phillips, 2 Atk. 49; Anon. 1 Mod. 211; and might revoke his consent at any time during his wife’s life, or after her death, before probate. 1 Rop. 169; Swin. Wills, 89; 1 Burn’s Ec. Law, 52; Anon. 1 Mod. 211. But it is now held that, if the husband assent to the will after the death of the wife, he will be for ever bound, and any subsequent dissent will be im- material. 1 Rob. Wills, 23; 1 Rop. 169; Maas ». Sheffield, 10 Jur. 4172 The husband’s assent may be shown by circumstances as well as by direct proof. 1 Rop. 169; Lov. Wills, 266. If, after the wife’s death, the husband suffer the will to be proved, and deliver the goods accordingly, the testament is good. Shep. Touch. 402. A feme covert devises goods, and the baron delivers the goods to the executor of the wife, the Court, upon this presumption, adjudged that the baron gave precedent assent to the making of the will. 5 Ed. II., cited in Moore, 192, pl. 341; 4 Vin. Abr. 164. If the husband consent that his wife shall make a will, and ac- cordingly she doth make a will and dieth ; and if, after her death, he comes to the executor named in the will, and seems to approve her choice, by saying that he is glad she appointed so worthy a person, and seems to be satisfied in the main with the will, and recommends a goldsmith and coffin maker and scutcheon painter to be employed by him, this is a good assent, and makes it a good 1 See also Kurtz v. Saylor, 20 Penn. St. 209; George v. Bussing, 15 B. Monr. 563. 2 But see Van Winkle v. Schoonmaker, 15 N. J. Eq. 384, where it was held that, where no legal rights have been acquired under the consent, it is revocable at any time before probate. See also George v. Bussing, 15 B. Monr. 568. But after probate it is clear that his consent cannot be revoked. See Schouler, Dom. Rel. 253; 1 Redf. on Wills, 24; Wagner v. Ellis, 7 Penn. St. 413. 512 COVERTURE. will, though he afterwards opposed the probate. His disagree- ment, after his former assent, will not avoid the will, because such assent is good in law, though he knew not the particular bequests in the will. Brook v. Turner, 2 Mod. 170; 2 Keble, 624, pl. 3; s. c. 4 Vin. Ab. 164. A married woman made her will with the consent of her hus- band, expressed at the time, and testified by his being a sub- scribing witness to it. After her death, but before probate, he obtained the will for an alleged particular purpose from the alleged universal legatee therein named, giving the legatee at the time a written memorandum containing his sanction of the will. Subsequently he took out letters of administration to his wife as dead intestate. It was held he could not withdraw his assent so given, and that an allegation pleading the above facts, and others in connection, was admissible on the part of the universal legatee seeking to establish the will. Maas v. Sheffield, 10 Jur. 417, cited in 5 Harr. Dig. 1654. In Vermont, it was held that the assent of the husband to élie wife’s will, under his hand and seal during the coverture, will be sufficient. Fisher v. Kimball, 17 Vt. (2 Wash.) 323. In the present case it appeared that the property in question belonged to the wife before her marriage, and the evidence of the defendant tended to prove the assent of the husband before and during the marriage, that the wife should make a will and dispose of the articles in question; that the will was proved in solemn form without objection ; that the husband was present when the inventory was made, and pointed out the articles which belonged to the wife, and suffered the executor to take them away without objection. This evidence, if believed, would have been proof of assent entirely sufficient. It is now well settled that the will of a married woman, whether it operates by virtue of a power or otherwise, is so far of the nature of a will strictly, that it must be executed in conform- ity to law, Casson v. Dade, 1 Bro. Ch.'99 ; and it must he proved in the Court of Probate. Anon.1.Mod. 211; Stone ». Forsaith, Doug. 707; Ross v. Ewer, 3 Atk. 156; Jenkins v. Whitehouse, 1 Burr. 431; Cothay v. Sydenham, 2 Bro. ©. C. 392; Rich ». Cochell, 9 Ves. Jr. 369; 2 Rop. 188; Lov. Wills, 266; Osgood v. Breed, 12 Mass. 525; Bank v. Stone, 18 Pick.420; 4 Kent’s Com. 505 ; Society ». Wadhams, 10 Barb. S. C. 606 ; Picquet v. Swan, 4 Mason, 448. WHITAKER v. WHITAKER. 5138 The probate, if the will embraces different kinds of property, as in the case, will be limited to the property which the wife had the power to devise. Tappenden v. Walsh, 4 Phill. 352; Moss v. Brander, id. 254. The Court of Probate has consequently jurisdiction to decide upon the proof of the will, and, having such jurisdiction, its deci- sions are binding and conclusive upon parties and privies, aw to the testamentary capacity of the wife, so far as relates to the property devised. Osgood v. Breed, 12 Mass. 525; Bryant v. Allen, 6 N. H. 116; and as to the assent of the husband to the will, where such assent is necessary to give it effect; and it would seem, as to his assent, that the particular property should pass by the will, so far as it is set forth and described in the will. If the husband designs to controvert either of these things, the time and place appointed for that purpose by the law would seem to be the Courts of Probate, at the time of the allowance of the will, and not afterwards nor elsewhere. However this may be, the evidence offered in this case was competent to establish a good defence, and the verdict must be set aside. That the rules laid down in the two correct statements of the law, except preceding cases (which were selected where changed by statute, see 1 Redf. on account of their full statement of on Wills (3d ed.), p. 22 ef segq.; the principles involved) are (with Schouler’s Dom. Rel. p. 251 ef seg.; some qualifications therein noticed) Jones v. Brown, 34 N. H. 446. WHITAKER v. WHITAKER, Executor. (6 Jobn. 112. Supreme Court of New York, May, 1810.) Husband’s Right to administer on the Estate of his Wife, and to the Surplus thereof. Pleading, &c. — A husband who survives his wife is entitled to all her choses in action, whether reduced into his possession in her lifetime or not. Where the husband gave a receipt for the distributive share of his wife out of her father’s estate, and in the receipt expressed it to be received for E. W.., his son, a minor, it was held, that E. W., the son, was not entitled to the property, but it belonged to the father in his lifetime, and to his legal representatives after his death. TuIs was an action of assumpsit brought against the defendant, as surviving executor of the last will and testament of Edward 83 514 COVERTURE. Whitaker, deceased. The first count in the plaintiff's declaration stated, “That whereas Edward Whitaker, deceased, in his life- time, to wit, on the twentieth day of March, 1802, at Kingston, &c., was indebted to the plaintiff in the sum of $2,000 law- ful money, &c., for money, by the plaintiff, before that time, lent and advanced to the said Edward in his lifetime, and at his special instance and request; and the said Edward, being so indebted in his lifetime, he, the said defendant, as such executor, after the death of the said Edward, in consideration thereof, afterwards, to wit, on the 17th March, 1808, as such surviving executor aforesaid, at Kingston, &c., undertook, and then and there faithfully promised the plaintiff to pay him, the said last- mentioned sum of money, when he as such surviving executor, as aforesaid, should thereto, afterwards be requested,” &c. There were similar counts, also, for money paid, laid out and expended, money had and received to the use of the plaintiff, work and labor, &c., goods sold and delivered, &c., and the declaration concluded as follows: ‘“ Yet the said Edward, in his lifetime, and the said defendant, surviving executor as aforesaid, since his death, although often requested, &c., have not nor hath either of them paid the said several sums of money, or any part thereof, to the said plaintiff; but the said Edward, in his life- time, refused to pay the same, and the said defendant, as sur- viving executor, as aforesaid, since his death, still doth refuse to pay the same to the plaintiff, whereby the said plaintiff says he is injured, and damnified to $2,000,” &c. The defendant pleaded that he had not promised and under- taken in manner and form, &c., with notice of a set-off. At the trial, the plaintiff produced in evidence a receipt given by Edward Whitaker, deceased, the testator, to T. C. Dewitt, a witness produced by the plaintiff, and the account accompanying the receipt, which was as follows: “Received in Kingston, September 29th, 1779, the above sum of 1,492/. 8s. 9d., in goods, and T. C. Dewitt’s note, being the one-sixth part of the personal estate of the late Henry Dewitt, and the late Mary Dewitt, deceased, as per inventory, for my son, Edward Whitaker, jun., a minor. (Signed) Epwarp Wuitaker.” This receipt was at the foot of an inventory of one-sixth of the personal estate of Mary Dewitt, deceased, delivered to the witness, T. C. Dewitt, who testified that Edward Whitaker, the testator, about the WHITAKER v. WHITAKER. 515 year 1769, married Elizabeth Dewitt (the mother of the plain- tiff, and the sister of the witness, and one of two daughters of Henry and Maria Dewitt) in the lifetime of her mother. The mother died before Elizabeth Dewitt, and about eighteen months after the birth of the plaintiff, who is an only child, and was born the 12th May, 1770; the settlement of the estate mentioned in the receipt took place at the date of the receipt, which was given for 1,490/. 8s. 9d. in continental money, there being then no other currency, and which sum was equal to 102/. 6s. 5d. in gold and silver; that the testator took also the note of the witness for a sum, in continental money, equal to 75/. 188. 11d. in gold and silver, which note, with one month’s interest, was paid the 30th November, 1779, in continental money ; the residue of the sum specified in the receipt’ being made up by the articles mentioned in the inventory. It appeared that the plaintiff, after he came of age, in the lifetime of his father, worked for him, and was paid an account exhibited by him for work. A verdict was taken, by consent, for the plaintiff, subject to a case; reserving all questions of law, and with liberty to modify the verdict, as to the amount of principal and interest to be recovered, or to alter it into a verdict for the defendant if the Court should be of opinion that judgment ought to be entered for the defendant; and that the defendant might also, at the same time, move in arrest of judgment. LL. Elmendorf, for the defendant. Sudam, contra. SPENCER, J., delivered the opinion of the Court. The defend- ant’s counsel made several points on the argument, two of which only I deem it requisite to examine: ,1, the validity of the declara- tion; and, 2, the testator’s liability in consequence of the receipt of the 29th of September, 1779. The objection is, that the promise, to be rendered binding, ought to have been in writing, or alleged to have been made in consideration of assets. The counsel seemed to suppose that the judgment on this count would be de bonis propriis, and that the executor would, in this mode of declaring, be prevented from pleading plene administravit. If such would be the conse- quence, then I should hold the objection to be valid ; but, accord- ing to the case of Secar v. Atkinson (1 H. Bl. 102), and of Executors of Hughes v. Hughes, 7 Bro. P. C. 550, and 2 Saund. 516 COVERTURE. 117 e, note 2, the judgment will be de bonis testatoris, and this mode of declaring is adopted merely to save the statute of limita- tions, consequently the defendant is not prevented from making any defence, under such a.form of declaring, which he might have made had the declaration stated the promise of the testator and his liability only. The second point is clearly with the defendant. The receipt is proved by an account between the testator, in behalf of his son, the plaintiff, with the estate of Mary Dewitt; and it is evident that Henry Dewitt must have died before his wife Mary. It cannot be pretended, if the testator was entitled in his own right to the share of his wife in her mother’s personal estate, that his ignorance of his rights, and receiving that share as for his son, will give the plaintiff a legal right to call the representative of his father to an account for what he had a right to receive and retain.’ That the husband surviving his wife is entitled to all her choses in action, as well as to her personal estate in possession, cannot be controverted. The 16th section of the Act concerning executors and administrators, and the distributions of intestate’s estates? (1 Rev. Laws, 539), enacts, that nothing contained in that act shall be construed to extend to the estates of femes covert that shall die intestate ; but that their husbands may demand and have administration of their rights, credits, and other personal estate, and recover and enjoy the same, as fully as they might have done before the passing of the act. It is a transcript of the 29 Car. II. c. 8, sec. 25; and in the case of Squib v. Wyn, 1 P. Wms. 381, Lord Chancellor Cowper held, that even a term, which is a chattel real, shall go to the husband surviving his wife. In the case of Cart v. Rees, 1 P. Wms. 881, a wife died possessed of choses in ac- tion, and the husband survived, and died without taking out letters of administration to his wife, after which the next of kin of the wife administered to her; and Lord Parker held that the adminis- trator of the wife was but a trustee for the executor of the hus- band, the right of the wife’s choses in action being, by the statute of distributions vested in the husband, as next of kin to the wife. Lord Harpwicke lays down the same principle in Elliot . Collins, 8 Atk. 527. He says, the husband surviving the wife, her whole estate vested in him at the time of her death, and no per- 15 Johns. 72. A receipt may be explained or contradicted by parol evidence. 2 24 Sess. c. 174, § 16. WHITAKER UV. WHITAKER. 517 son could possibly be entitled to the rights of the wife but him- self, so that her whole property belonged to him. In Hargrave and Butler’s note to Coke Littleton ! (note 804), after stating the statutes of distribution, they observe upon the construction of these statutes, it has been held that the husband may administer to his deceased wife; and he is entitled, for his own benefit, to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in her and reduced into possession, or contingent and recoverable only by action or suit; and that by a series of cases it is now settled, that the representative of the husband is entitled as much to that species of his wife’s property as lies in action or suit, and is not reduced into possession, as to any other; and that the right of administration follows the right of the estate, and ought, in case of the husband’s death, after the wife, to be granted to the next of kin of the husband; and if obtained by a third person, he is a trustee for the representative of the husband. Bacon’s Abridg- ment (tit. Baron & Feme, C.) contains a note by Mr. Gwillim to the same effect; and Christian, in his note to 2 Black. Com. 435, gives the same construction to 29 Car. II. c. 8, sec. 25, that the husband shall have administration of all his wife’s personal estate, which he did not reduce to possession before her death, and shall retain it to his own use ; and, in case of his death before admin- istration granted to him, or it be recovered, the right to it passes to his personal representatives, and not to the wife’s next of kin. It may be added, that there is not an authority to be met with contradicting these well and clearly established principles. The plaintiff rests his right to recover on the ground that the testator received money to which the plaintiff is entitled; and the only count in the declaration on which he can recover is the one for money had and received. Should it, therefore, be admitted that, ‘as the testator did not take out letters of administration on the estate of his wife, he is to be regarded as only equitably entitled to the money he received, this equitable right ig in this action sufficient to protect the defendant from any responsibility ; for it cannot be questioned that, in the action for money had and -received, the defendant may make any defence which shows that the plaintiff, ex @quo et bono, is not entitled to recover. Great 1 Note 1, 351a. Mr. Hargrave’s notes extend no farther than folio 190, or to half the work ; the remaining notes are by Mr. Butler. 4 518 COVERTURE. stress has been placed on the terms of the receipt; and that it appears the testator meant to receive the money for his son, the plaintiff. I consider this as furnishing no legal or equitable title to the plaintiff to sue for the money thus received, if the defend- ant has otherwise a right to retain. The amount of the argument is this: the defendant’s testator received his own money, or money to which he was entitled, for the plaintiff; and in this action, in which the plaintiff is bound to show that the money so received was his, or that he was equitably entitled to it, he shows directly the reverse, and that it was his father’s. It cannot be pretended that the receipt operated as a transfer of the property from the father to his son. It was a mere muniment of evidence, and worked no change in the right to the money. I cannot, however, assent to the position that the plaintiff has even a technical legal title to the money received by his father. The administration given by the statute to the husband who sur- vives his wife cannot be necessary to entitle him to the beneficial use of what he recovers. It merely confers a right to sue for her choses in action; and if he can get them without suit, his title is as perfect as though he had taken letters of administration. The statute expressly pro- vides that nothing contained in it shall extend to the estate of femes covert, and consequently the plaintiff cannot claim under this statute ; it recognizes the common-law right of the husband to recover and enjoy the personal estate of his deceased wife. The equitable rights of the husband or his representatives will arise, should letters of administration be taken out on her estate by any other than the husband or his personal representatives. The legal title to recover the choses in action of the wife would then reside in such administrator, and the equitable right to them in the husband or his representative. The construction of the statute must be the same in law as in equity; and it cannot be maintained that, when it gives the right in the deceased wife’s personal estate to her husband, and gives him the right of admin- istration, that any other person has a legal title against the hus- band. Baron Comyns, in his Digest (tit. Baron & Feme, E. 3), lays down the law to be, that, if the husband dies without admin- istering to the personal estate of his wife, it goes to his represen- tative, and is vested in him before administration taken out, and not to her next of kin; and he takes the distinction I have men- WHITAKER v. WHITAKER. 519 tioned, that if administration is granted to such next of kin, yet in equity he is looked on as a mere trustee for the representatives of the husband. Upon no principle can the plaintiff recover, and the defendant must have judgment. That, in the absence of statutory provisions to the contrary, the husband is entitled to administer on the estate of his deceased wife, is well settled. ‘Tf his wife dies, and he survives her, before he has reduced the chose in action to possession, it does not strictly survive to him; but he is entitled to recover the same to his own use by act- ing as her administrator. By the statute of distributions of 22 and 23 Charles II., and the 25th section of the statute of 29 Charles II. ¢. 8, in ex- planation thereof, and which have, in substance, been re-enacted in New York and the other States of the Union, the husbands of femes covert who die intestate have a right to ad- minister upon their personal estate, and to recover and enjoy the same. Under the statute, it is held that the husband is entitled, for his own benefit, jure mariti, to administer, and to take all her chattels real, things in action, and Judgment for defendant. erty, whether reduced to possession, or contingent, or recoverable only by suit. But if the wife leaves choses in action not reduced to possession in the wife’s life, the husband will be liable for her debts dum sola to that extent; for those choses in action will be assets in his hands.” 2 Kent's Com. 135, citing Heard v. Stamford, 3 P. Wms. 409, s. c. Ca. temp. Talb. 173; 2 Eq. Cas. Abr. 134, pl. 5. See also Hetrick »v. Hetrick, 18 Ind. 44; 2 Kent’s Com. 409, 410; Schouler’s Dom. Rel. 158 et seq.; Reeve’s Dom. Rel. *12-19; 8 Redf. on Wills, 80; 1 Bish. Mar. Wom. §§ 172 ef seg.; McCosker »v. Golden, 1 Bradf. 64; Barnes v. Under- wood, 47 N. Y. 351. The case of Heard v. Stamford (supra) well illustrates the last propo- sition of the above quotation, and also the liability of the husband in general for his wife’s debts, and is therefore incorporated in this note: — ! every other species of personal prop- wv 1A seme sole was indebted to her sister in 50/. by note; she married, and brought a personal estate to the value of 700/. to her husband, with whom she lived about a year and a quarter, and then died; the creditor by note never recovered judgment against the husband and wife, and the debt remained unpaid. The husband, on the wife’s death, administered to the wife. The sister married, and with her husband brought a bill against the defendant, and finding that the choses in action, of which the wife died possessed, were not sufficient to pay the 50/. debt, which the wife owed dum sola; it was prayed that the defendant, the husband, for so much as he had received out of the clear personal estate of the wife upon his marriage, should be made liable to answer the plaintiff’s demand. “ And it was insisted to be but common reason and justice that, as the wife was the owner of a visible estate, upon the credit of which the plaintiff might have intrusted her ; so he that had such estate should pay the debt, which he might well afford to do; that it would be a vase full of hardship, if a feme sole, who in ready money, goods, jewels, terms for years, &c., might be worth 10,000/. and might owe 1,000/., if such woman should afterwards marry and die, that on her death her hus- band should go away with the 10,000/. and not be obliged to pay one farthing of his wife’s debt, this would prove of the most pernicious consequence to the creditors ; whereas, on the other hand, the husband would have no reason to complain of being 520 COVERTURE. liable to answer their demands, as far as he had received a fortune with his wife ; that the author of a book, entitled ‘The Office of Executore’ (a book well esteemed), chap. 17, touching a feme covert’s being executrix, takes notice of this case as a very hard one, and indeed recommends it as proper for the consideration of a Court of equity ; that accordingly the Court has granted relief under such circumstances, as appears from the Chancery Reports, 205, Freeman v. Goodham, where a feme dum sola bought goods, but did not pay for them, and afterwards married and died, having brought a good portion, which came to the hands of her husband, who, on the cred- itors filing a bill against him to be paid for the goods, demurred. The Lord Chan- cellor Norringuam overruled the demurrer, saying, with some earnestness, that he ; would alter the law in that point. So in the case of Powell v. Bell, Abridgment of Cases in Equity, 16, Precedents in Chancery, 256, it was decreed that the wife who had contracted debts dum sola, being dead, the husband should account for what he had received with her, and should be so far liable to her debts; and there Mr. Ver- non is said to have informed the Court, that he had often known it so held. It was moreover insisted, that one precedent relieving a creditor was more to be regarded than three to the contrary. “Lorp CuanceLior. It is extremely clear that, by law the husband is liable to the wife’s debts only during the coverture, unless the creditor recovers judgment against him in the wife’s lifetime; and I do not see how any thing less than an act of Parlia- ment can alter the law. The wife’s choses in action are assets, and will be liable, but these, it seems, are not sufficient in the principal case to answer the demand. In the case of Freeman v. Goodham, there was some reason for the Court to be provoked, when the goods themselves continued after the death of the wife in the hands of the husband, who, notwithstanding, refused to pay for them. It is true, it appears the then Lord Chancellor overruled the demurrer ; but what was done afterwards, what decree his Lordship made, whether the cause was ever heard, or whether the bill was not dismissed, does not appear (a). Neither in the case of Powell v. Bell, is any notice taken what estate the wife had in her own right, and what as administratrix to her former husband. “Tf I relieve against the husband because he had sufficient with his wife wherewith to satisfy the demand in question; by the same reason, where a feme indebted dum sola afterwards marries, bringing no fortune to her husband, and judgment is recov- ered against the husband, after which the wife dies, by the same reason (I say) I ought to grant relief to the husband against such judgment, which yet is not in my power ; consequently, there can be no ground for a Court of equity to interfere in the present case. If the law as it now stands be thought inconvenient, it will be a good reason for the legislature to alter it; but, till that is done, what is law at present must take place. “ The next morning the case of the Earl of Thomond »v. Earl of Suffolk [vol. 1, 470] was cited to have been adjudged by the Lord Macciesriexp, wherein this was one of the very points in question; and the Lord MaccresFiexp, for much the same reasons as had been given by the Lord Taxxor, denied to relieve « creditor of the wife,dum sola, against the husband who survived, and on the marriage had sufficient (a) From a marginal note, it appears that in this case (the proper style of which is Freeman v. Goodland), there was subsequently made, on the hearing of the cause, a decretal order against the defendant by consent, ‘so that, this being a decree in consequence of the defendant's offer, here appears to be no express determination in the point ; however, it is very probable that the defendant, perceiving which way the opinion of the Court inclined on arguing the demurrer, was induced to make the above-mentioned offer.” WHITAKER ¥. WHITAKER. 521 personal estate wherewith to answer her debts. Whereupon the Lord Chancellor took notice that, although the matter now in question was inconsiderable in value, yet the case itself was of great consequence ; for which reason, if the counsel for the plaintiff were dissatisfied, he would, he said, hear them again to it. But the above- mentioned case of the Earl of Thomond being insisted on as in the very point, the counsel acquiesced, and did not stir the matter again.” “Note ; the same point had been determined by the Lord Kine in the case of Jordan v. Foley, Trin. 11 G. 1.” See this case explained in Adair v. Shaw, 1 Sch. & L. 2638. This note cannot be better concluded than by transcribing therein Mr. Butler’s note on this subject to Coke upon Littleton, Co. Litt. 851 a, note 1, the substance of which may also be found adopted in the opinion of the Court in Judge of Probate v. Chamberlain, 3 N. H. 129. “ At the common law no person had a right to administer ; it was in the breast of the ordinary to grant administration to whom he pleased till the Statute of 21 Henry VIIL., which gave it to the next of kin ; and, if there were persons of equal kin, which- ever took out administration first was entitled to the surplus. “The statute of distribution was made to prevent this injustice, and to oblige the administrator to distribute. In those cases, where the wife was entitled only to the trust of a chattel real, or to any chose in action or contingent interest in any kind of personalty, it seems to have been doubted, whether, if the husband survived her, he was entitled to the benefit of it or not. See the commentary on sect. 665, and 4 Inst. 87; 1 Roll. Abr. 846, All. 15; Wytham v. Waterhouse, Cro. Eliz. 466, 8 Rep. in Ch. 87; and Gilb. Cas. in Eq. 284. “ By the 22 & 28 Car. IL., c. 10, administrators are liable to make distribution ; but as the act makes no express mention of the husband’s administering to his wife, and as no person can be in equal degree to the wife with the husband, he was not held to be within the act. “To obviate all doubts upon this question, by the 29 Car. IL., c. 8, § 25, it is de- clared that the husband may demand administration of his deceased wife’s personal estate, and recover and enjoy the same, as he might have done before the Statute of the 22 and 28 of that reign. “Upon the construction of these statutes, it has been held that the husband may administer to his deceased wife, and that he is entitled for his own benefit to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in her and reduced into possession, or contingent or recover- able only by action or suit. It was, however, made « question, after the Statute of 29 Car. IL, c. 8, § 25, whether if the husband having survived his wife, afterwards died during the suspense of the contingency upon which any part of his wife’s prop- erty depended, or without having reduced into possession such of her property as lay in action or suit, his representative, or his wife’s next of kin, were entitled to the benefit of it. But, by a series of cases, it is now settled that the representative of the husband is entitled as much to this species of his wife’s property as to any other ; that the right of administration follows the right of the estate, and ought, in case of the husband’s death after the wife, to be granted to the next of kin of the husband (see Mr. Hargrave’s Law Tracts, 475) ; and if administration de bonis non of the wife is obtained by any third person, he is a trustee for the representative of the husband. See Squib v. Wyn, 1 P. W. 878; Cart v. Rees, cited id. 381.” 522 IDIOCY, LUNACY, ETC. IDIOCY, LUNACY, ETC. MITCHELL v. KINGMAN. (5 Pick. 431. Supreme Judicial Court of Massachusetts, October Term, 1827.) Insanity may be pleaded by an Insane Person in Avoidance of his Contracts; Ap- pearance. — A person non compos mentis may plead his disability in avoidance of his contracts, or show it in evidence under the general issue. If he pleads by attorney, and upon examination it appears that his incapacity continues, the plea may be treated as a nullity, and a guardian ad litem be appointed, who may plead de novo. AssuMPsIT upon a promissory note. The defendant, by his at- torney, pleaded the general issue. At the trial, in the Court of Common Pleas, the plaintiffs having produced the note and proved the defendant’s signature, the defendant offered to prove that at and before the making thereof he was, and ever since has been an idiot and incapable of making a valid contract; but WiuitaMs, J., ruled that he was not by law entitled to this evidence. The jury having found a verdict for the plaintiffs the defendant filed his exceptions to this direction. Eddy, in support of the exceptions, contended that a man might stultify himself, 1 Chit. P].470; 1 Fonbl. 46; Fitzh. N. B. 202; Hammond’s Dig. in Eq. 17, note; Faulder ». Silk, 3 Campb. 126; 2 Dane’s Abr. 21; Thompson v. Leach, 2, Salk. 427, 675; Yates v. Boen, 2 Str. 1104; Bull. N. P.172; 2 Stark. Ey. 479; Webster v. Woodford, 3 Day, 90: and that an idiot might plead by attorney, if of age, 2 Saund. 833, note 4; 1 Chit. Pl. 529; Beverley’s case, 4 Co. 124. Baylies, contra, cited on the first point, 2 Bl. Com. 292; Stroud v. Marshall, Cro. Eliz. 398 ; Cross v. Andrews, ibid. 622; and on the other point, 3 Bac. Abr. 541, Idiots, &c., G.; Com. Dig. Idiot, A.D. 7; 1 Chit. Pl. 529; Mitf. Pl. 883; 2 Mad. Ch. Pr. 576; Co. Litt. 185 6. The opinion of the Court was delivered at this term by Wipe, J. The principal question in this case, namely, whether a person non compos mentis can be allowed by law to plead his MITCHELL v. KINGMAN. 523 disability in avoidance of his contracts, is certainly a question of some difficulty. It is said to be a maxim of the common law, that no man of full age shall be allowed by plea to stultify him- self, and thereby to avoid his own deed or contract. This is affirmed by Lord Coxz in Beverley’s case, 4 Co. 123, and also in his commentary on Littleton (Co. Lit. 147); and since his time seems to have been generally admitted as a settled principle, but without much consideration. On the other hand, Fitzherbert denies that this was ever a maxim of the common law. And Britton and Bracton maintain the same opinion. This opinion is likewise supported by the case referred to by Fitzherbert ; and by the form of the writ in the Register. The words are, “ Dum fuit non compos mentis sue ut dicit,” &c. Blackstone says (2 Com. 291) that the notion that a man should not be permitted to disable or blemish himself first began to arise in the reign of Edward III.; and it was as late as the reign of Henry VI. before it was sanctioned by any judicial determination. It would seem, therefore, that Lord Coxe was not correct in saying that the maxim in question was a rule of the common law. In a question relating to the ancient common law, it seems to me that the authority of the Register should be admitted as con- clusive, especially where other sources of information are doubt- ful and contradictory. But few decided cases on this point are to be found since the case of Beverley. But it was decided as late as the year 1737, in the case of Yates v. Boen, 2 Str. 1104, that lunacy might be given in evidence to avoid a contract. This was a case of a debt on articles and upon non est factum pleaded, the defendant offered to give lunacy in evidence. The Chief Justice (Lee) at first thought it ought not to be admitted, upon the rule in Beverley’s case ; but on the authority of Smith v. Carr, in which it was admitted by Chief Baron PENGELLY, and the case of Thompson v. Leach, 2 Ventr. 198, he suffered it to be given in evidence. This case is cited with approbation by Buller (Buller’s N. P. 172); and also in the case of Webster v. Woodford, 3 Day, 90; in which it was decided, after a full examination of the ques- tion, that a person non compos mentis might be permitted to plead his own disability in avoidance of his contract. It appears therefore, on examination, that the supposed maxim of the common law, relied on by the plaintiffs, is of doubtful origin and authority. Nor should we feel ourselves bound to adopt it, 524 IDIOCY, LUNACY, ETC. although it were supported by less questionable English authori- ties, because the property and interests of idiots and lunatics are not protected here, as they are in England, by the royal preroga- tive. There, if an idiot alien his lands, the king, after office found, may, upon secire facias against the alienee, recover the lands to the. use of the idiot, and thereupon they will revest in him. And so if the idiot be sued in any action upon a bond or other contract, the king, by his writ, shall send a supersedeas to the justices where the suit is commenced. And the law is the same when a person becomes non compos. Beverley’s case, 4 Co. 126. But even in England there seems to be neither reason nor necessity for adopting the rule in question ; a rule which, Fonblanque says, was adopted “in defiance of natural justice, and the universal practice of all the civilized nations in the world.” 1 Fonbl. Ey. 46. That it is against natural justice is manifest; because a man in a fit of insanity may make a contract, which, after the recovery of his reason, might be enforced against him under the rule, although made without consideration, provided it be under seal. For neither in England nor here can a committee or guardian be appointed to a lunatic or insane person, after the recovery of his yeason. If, therefore, in such a case, the defendant could not avoid the deed by pleading his insanity at the time of the contract, he would be without defence; and thus by the visitation of Provi- dence, followed up by a rule of law, a man without fault might be despoiled of his property and utterly ruined. It is said that the rule, however unjust its operation may some- times prove, is nevertheless founded in public policy. The law does not proceed, says Powell, upon the ground that the party is bound ; for that cannot be, seeing that, by the law of nature, he wants the capacity to assent to a contract; but because the policy of the law, which rather submits to a particular mischief than a public inconvenience, sets bounds to the law of nature in point of form and circumstance. Pow. Contr. 21. But if this reason were allowed, and applied generally, the course of justice would be obstructed at every step, and Courts of law would be worse than useless; for there are many other frauds much easier to practise than that of counterfeiting insanity. Buta party is not to be deprived of a just defence, because he may by possibility practise fraud and imposition. We might as well reject all human testimony because witnesses may be perjured. But admitting that insanity might be easily feigned (which, however, is not the MITCHELL v. KINGMAN. 525 fact), we see no reason why the law should interfere in favor of a party who had contracted with a person believing him to be insane. It would seem to be a more enlightened policy to dis- courage the making of contracts under such circumstances, rather than to facilitate the means of enforcing them. We are of opinion, therefore, that the Court of Common Pleas erred in rejecting the evidence offered by the defendant at the trial. He offered to prove that, at and before the making of the note declared on, he was and still continued to be an idiot, and incapable of making a valid contract. If the fact were so, then the Court were bound to appoint a guardian ad litem. But if he was at the time of the trial restored to his reason, then he might plead his former disability by attorney, or might prove it under the general issue. The rules of practice in chancery, as laid down by Mitford, seem to us to be founded in good sense, and to be well adapted to the ordinary administration of justice. When a bill is filed against an idiot or lunatic, the committee of his estate, if there is one, must be made defendant with him. Mitf. Pl. 24. And he must defend by his committee, who is by order of the Court appointed a guardian for that purpose as a matter of course. But if he has no committee, or the committee has an interest adverse to his, another person may be guardian for the purpose of defending the suit. So ifa person who is in the condition of an idiot or lunatic, though not found such by inquisition, is made a defendant, the Court upon information of his incapacity will appoint a guardian. Ibid. 82. It is said truly, that, if the defendant was non compos at the time of the trial, he had no right to appear and plead by attorney. But, if it should appear on examination that he is still non compos, the plea by attorney may before judgment be treated as a nullity ; and a guardian will be appointed, who will be entitled to plead de novo For this purpose the verdict is to be set aside, and a new trial granted at the bar of this Court.? The doctrine that a lunatic may shall not be heard to stultify himself, — show his lunacy in defence to an action is thoroughly exploded, as being con- against him upon a contract, is now well trary both to reason and the more settled ; and the old rule, —thataman ancient authority. Rice v. Peet, 15 1 See Revised Stat. c. 98, § 22. 2 See Baxter v. Earl of Portsmouth, 2 Carr. & Payne, 178, and note. 526 Johns. 503; Lang v. Whidden, 2 N. H. +4385 ; Bensell v. Chancellor, 5 Whart. 371; Seaver v. Phelps, 11 Pick. 304; Burke v. Allen, 29 N. H. 114; Grant v. Thompson, 4 Conn. 204 ; Morris v. Clay, 8 Jones, Law, 216; Thornton v. Appleton, 29 Me. 298; Tolson v. Gar- ner, 15 Mo. 494; Pearl v. McDowell, 3 J. J. Marsh. 658; Burnham v. Mitchell, 34 Wisc. 117; Gore v. Gib- son, 13 M. & W. 623,s. c. 9 Jur. 140, 142, note; Molton v. Camroux, 2 Exch. 501, s. c. 4 Exch. 19; 1 Pars. on Cont. *383, and notes; Metc. on Cont. 77; 2 Kent’s Com. *451, 1 Chitty’s Conts. (11th Am. ed.) 187. As to the manner of availing him- self of this defence, see also 1 Chitty’s IDIOCY, LUNACY, ETC. It is held that an insane person may be arrested in a civil action, and charged in execution at common law. Bush v. Pettibone, 4 N. Y. 300; Nutt v. Verney, 4 Term, 121; Kernott v. Norman, 2 id. 391; Pillop v. Sexton, 3 B. & P. 550; Steel ». Allan, 2 B. & P. 362. This rule, is, however, doubted by Professor Parsons, at least in its appli- cation to the United States. 1 Pars. on Cont. 384. As Beverley’s case, 4 Co. 128d, is cited in almost every case on the sub- ject discussed in the principal case, and is still, to some extent, law, it is deemed worthy of being given in full in these notes: —? Plead. 476, 480. 1 Bevertey’s Case or Non Compos Mentis, Pasch. 1 Jacobi, in the King’s Bench. In a bill depending in the Court of Requests between Snow, plaintiff, and Bev- erley, defendant ; the matter was, that Snow had made a bond to’the defendant in 1000/., and in the said Court would be relieved, because at the time of the making of the said bond he was non compos mentis (a) ; and this term I moved the Court of King’s Bench to have a prohibition to stay the said suit in the Court of Requests, because the matter was not determinable there. And upon this case, two points upon argu- ment and on good consideration were unanimously resolved per tot. Cur. 1. That every deed, feoffment, or grant which any man non compos mentis makes is avoidable ; and yet shall not be avoided by himself, because it is a maxim in law, that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify him- self (b), and disable his own person; as appears by Littleton, lib. 2, cap. Descents, fol. 95, and therewith agree 39 H. VI. 425, 5 E. III. 70, and 85 Ass. 10. And there another cause is given; sc. because, when he recovers his memory, he cannot know what he did when he was non compos mentis. 2dly. If the common law had given a writ of non compos mentis to him who has recovered his memory after alienation, certainly the law would have given him remedy for the maintenance of himself, his wife, children, and family, although he recovered not his memory, but continued non compos mentis. And it must be known that this disability to disable himself, as to some persons, is personal, and extends only to the party himself; and, as to other persons, is not personal, but shall bind them also. And as to that, know that there are four manner of privities (c) : sc. privity in blood, as heir : 2, privity in representation, as executors or administrators, who, as Littleton saith, fol. 77 b, represent the (d) person of the testator or intestate, 2 Mar. Dyer, 112, agrees; 8, privity in estate, as a gift in tail, the reversion or re- mainder in fee, &c.; 4, privity in tenure, as lord by escheat : and two of them, which (a) Carth. 486; Skin. 177, 576; Lucas, 161. (6) Jenk. Cent. 40; F. N. B. 202; D. F.N. D. 2044; 1 Roll. 2; Bro. Faits, 62; Fitz. Issue, 58; Cro. Eliz. 898, 622; Godb. 202; Co. Litt. 247a,b; Bro. Dum Suit infra etatem, 8; Bro. Entre Congeable, 47; Litt. 95 a, 6; Litt. sect. 405. (c) 8 Co. 28 a; 8 Co. 426; Co. Litt. 271 a, y; 1 Jones, 82; 2 Inst. 516, 517. (d) Litt. sect. 887; Co. Litt. 208 6, 209 a. MITCHELL v. KINGMAN. 527 are privies only, may disable him who was non compos mentis, and shall avoid his deeds, grants, or feoffments, and two not. For privies in blood may show the dis- ability of the ancestor; and privies in representation, the infirmity of the testator or intestate : but neither privy in (a) estate nor privy in tenure shall do it; and, there- fore, if donee in tail, being non compos mentis, makes a feoffment in fee, and dies with- out issue, he in reversion or remainder shall not enter or take advantage of the insanity of the donee. The same law of lord by escheat, if his tenant, being non compos mentis, makes a feoffment in fee, and dies without heir, he shall not avoid it; but there are some acts done by a man non compos mentis which none of them shall avoid; and, therefore, if he levies a fine, or suffers a recovery (b); or acknowledges a statute or recognizance, neither his heir nor his executors shall avoid it, for these are matters of record which shall not be avoided by a bare averment of non compos mentis, for the inconvenience which may thence ensue ; also, such averment is against the office and dignity of the judge, for he ought not to take any conusance of a fine or recog- nizance of him who is non compos mentis. Cases in Law, &c. 161; 18 E. 2, Fines, 120; 17 Ass. 17; 17 E. III.; 1 Mar. tit. Dum infra fuit etat.7; 31 E. ITT; Saver, Default (87), 57. 2. It was resolved that, it being against an express maxim of the common law that the party shall not (c) disable himself, that he shall not have for it relief in any Court of (d) equity, for that would be in subversion of a principle and ground in law, quod nota. And Coke, the king’s attorney, was of counsel with Beverley, and Herle, the king’s serjeant, with Snow. Nota, reader, that every act which a man non compos doth, either concerns his life, his lands, or his goods; also, every act which he doth, is either in pais or ina Court of record. All acts which he doth in a Court of record, either concerning his lands or goods, shall bind himseli and all others for ever; all acts which he doth concerning his lands or his goods in pais, in some case shall bind himself only during his life, and in some case shall bind for ever (as has been said). But as to his (e) life, the law of England is, that he shall not lose his life for felony or murder, because the punishment of a felon is so grievous. sc. 1. To lose his life. 2. To lose his life in such ‘odious manner, sc. by hanging, for he shall be hanged between heaven and earth, as unworthy of both.(f) 3. He shall lose his blood as to ancestry, for he is a son of the earth without any ancestor, and as to his posterity also, for his blood is corrupt, and he has neither heir nor posterity. 4. His lands. 5. His goods; and in such case the king shall have annum, diem, &c., vastum, to the intent that his wife and children shall be ejected, his houses pulled down, his trees eradicated and subverted, his meadows (g) ploughed, and all that he has for his comfort, delight, or sustenance, wasted and destroyed, because he has in such feloni- ous manner offended against the law ; and all this was, “ut (h) pena ad paucos metus ad omnes perveniat.” But the punishment of a man who is deprived of reason and (a) 8 Co. 43 a; 1 Roll. 401, 442; 3 Bulstr. 272; 2 Inst. 483. (b) Bro. Fines, Levy, &c.,75; 2 Inst. 4; 12 Co. 123, 124; Cro. Eliz. 187 ; Co. Litt. 247 a; Perk. sect. 24. (c) Jenk. Cent. 40; Cro. Eliz. 898; F. N. B. 202d; 1 Roll. 2; Bro. Faits, 62; Fitz. Issue, 58; Godb. 802; Co. Litt. 247 a, 6; Bro. Dum fuit infra atat. 3; Bro. Entre Congeable, 47; Litt. sect. 405; Litt. 95 a, b. (d) 1 Roll. 210. (e) 2 Roll. 547; Hob. 184; Plow. 19a; 2 Roll. 821; Co. Litt. 247 6, 21 H. VII. 81; Bro. Corone, 61; Stamf. Cor. 16 b; Fitz. Cor. 861, 412, 414; Went. 802; Godb. 816. (fy Co. Litt. 41a; 1 Roll. 180, 187; 3 Inst. 210, 211; Plow. 887 6; Stamf. Cor. 182 a, b. (g) Co. Litt, 294 5. (h) 8 Inst. 4, 6. 528 IDIOCY, LUNACY, ETC. understanding cannot be an example to others. 2. No felony or murder can be com- mitted without a felonious (a) intent and purpose, “ et ideo dict. est felonia, quia fieri debet felleo animo ;” but “ furiosus non intelligit quid agit, et animo et ratione caret et non multum distat a brutis,” as Bracton saith; and therefore he cannot have a felonious intent. Vide 21 H. VII.31; 26 Ass. 27; F.N. B. 202; D. Stamf. Pl. Coron. 16 5. Also, for the same reason, non compos mentis cannot commit petit treason, as if a woman, non compos mentis, kills her husband, as appears 12 H. III., Forfeiture, 33. But in some cases, non compos mentis may commit high (6) treason: as if he kills, or offers to kill the king, it is high treason; for the king “est caput et salus reipublice ct a capite bona valetudo transit in omnes ;” and for this reason their persons are so sacred that none can offer them any violeuce, but he is “‘ reus criminis lesa majes- tatis, et pereat unus ne pereant omnes.” And it must be known, that there are four (c) manners of non compos mentis : 1. Idiot or fool natural. 2. He who was of good and sound memory, and by the visitation of God has lost it. 3. Lunaticus, qui gaudet lucidis intervallis, and sometimes is of good and sound memory, and sometimes non compos mentis. 4. By his own act, as a drunkard; and it has been said, that there is great difference between an idiot a nativitate, and he who was of sound memory, and becomes, by the visitation of God, of unsound memory ; for an idiot is known by his perpetual infirmity of nature a nativitate, for he never had any sense or understanding to contract with any man; but he who was of good memory and understanding, and able to make a contract, and afterwards becomes by infirmity or casualty of unsound memory, is not so well known to the world as an idiot natural. Also, an idiot in an action brought against him shall appear in proper (d) person, and he who pleads best for him shall be admit- ted, as appears in 88 H. VI. 186. Otherwise it is of him who becomes non compos men- tis, for he shall appear by guardian if he is within age, and by attorney if he is of full age; but yet, as to estates or gifts made by them, they themselves, by any plea that they can plead, shall not avoid them, no less the idiot than he who becomes of unsound memory ; and be the feoffment or gift made by them in person or by attorney, they themselves shall never avoid it either by entry or by action ; for it appears, by the said maxim, that they cannot stultify (e) or disable themselves ; for, if they shall avoid things which they do by attorney, they themselves ought to show that they were then idiots, or of unsound memory ; but yet, as to others, there is a great differ- ence between an estate made in person and by attorney ; for if an idiot or non compos mentis makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or if he dies without heir, the land shall not escheat, as is aforesaid; but if the feoffment is made (/) by letter of attorney although the feoffor shall never avoid it, yet after his death as to all others in judgment in law, the estate was void, and therefore, in such case, if his heir is within age, he shall be in ward, or, if he dies without heir, the land shall escheat; and that is the true reason of the books in 7 H. IV. 5, and 7 H. IV. 12. And like the case of an (g) infant if he makes a feoff- ‘ment in person, if he dies without heir, the land shall not escheat, but otherwise if it {a} Plow. 19a; Hob. 184; 2 Roll. 547. (b) 2 Roll. 824; Dalt. Just. 880; Hale, Pl. Cor. 10; 8 Inst. 6; Godb. 816. (c) Co. Litt. 247 a. (d) Co. Litt. 185; F. N. B. 9, 27; Bro. Idiot, 1; Stamf. Prerog. 86a. (e) Jenk. Cent. 40; Cro. Eliz. 898, 622; F.N. B. 202d; 1 Roll. 2; antea, 1236; Br. Faits, 62; Fitz. Issue, 53; Godb. 802; Co. Litt. 847 a,b; Bro. Dum fuit infra etatem, 8; Bro. Entre Congeable, 47 ; Litt. sect. 405; Litt. 95a, b. (f) F.N. B. 202e; Br. Feoffm. 8. . (g) 8 Co. 426; 7 Co. 76; 2 Inst. 488; Dy. 10, pl. 88; 49 E. IIL. 13a; 39 H. VI. 426; 7H. V.9; 8 Bulstr. 272. MITCHELL v. KINGMAN, 529 was made by letter of attorney ; but the infant himself shall avoid it, but so shall not the others; but acts done by matter of record, as fines (a), recoveries, judgments, statutes, recognizances, &c., shall bind as well as the idiot, as he who becomes non compos mentis (b); 31 E. III.; Saver, Default, 37 (871); 1 Mar. tit. Dum fuit infra @tatem, 7. Also of a lunatic, all acts which he doth during his lunacy are equivalent to acts done by an idiot, or he who is utterly non compos mentis; but acts done by him inter lucida intervalla, when he is of sound memory, shall bind him. Lastly, although he who is drunk (c) is for the time non compos mentis, yet his drunkenness does not extenuate his act, or offence, nor turn to his avail; but it is a great offence in itself, and therefore aggravates his offence, and doth not derogate from the act which he did during that time, and that as well in cases touching his life, his lands, his goods, as any other thing that concerns him; when and in what cases laches shall prejudice an idiot, or non compos mentis, some have taken a difference between a bar of his right, and a bar of his entry, for, in case of bar of his right, his laches shall not prejudice him ; but in such special case, if he becomes of unsound memory, he shall show that he was non compos mentis ; as if a man non compos mentis is disseised, and the disseisor levies a fine, in this case at the common law, although the year and day are past, yet he who was non compos mentis shall not be thereby bound; but he may well enter, and that, they say, is proved by the statute de modo (d) levandi jines, made anno 18 E. I. which is but a declaration of the common law, sc. that a fine is so high a bar, and of so great force, and of so strong a nature in itself, that it bars not only those who are parties and privies to the fine and their heirs, but all other people of the world who are of full age, out of prison, and of good memory, and within the four seas, the day of the fine levied, if they put not in their claim by their action or entry in the county within the year and the day; by which it appears, that no laches of a man non compos mentis shall bar him of his right. Also, it appears by the statute of 4 H. VII. cap. 24, that, in such case, if a man levies a fine with proclamations, and, at the time of the fine levied, he who has right'is non compos mentis, and afterwards here covers his memory, in this case he ought to pursue his action, or make his entry within five years after he becomes of sound memory ; and in such case, in pleading, he shall show that at the time of the fine levied he was non compos mentis, and all the special matter (e) ; but if he who has such right is an idiot, or non compos mentis, and never recovers his memory, the heir may have his action, or make his entry when he will, for he is excepted out of the body of the act, and is not bound to make any entry, or bring his action within any time, but the party himself, if he recovers his memory. The same law, if he whois beyond sea at the time of the fine levied, and dies there, his heir may enter, or bring his action when he will; and in such case the lord, by escheat, shall take advantage of non com- pos mentis, infancy, imprisonment, or being beyond sea, ofhis tenant; for if there are lord and tenant, and the tenant is disseised, and the disseisor levies a fine, the dis- seisee being then within age, or non compos mentis, or in prison, or beyond sea, and afterwards the disseisor takes back an estate to himself in fee, and afterwards the disseisee within age, or non compos mentis, or beyond sea, or in prison, dies without heir, the lord, by escheat, shall take advantage of every of them against the disseisor. So, if a collateral warranty descends upon one non compos mentis, which he might have avoided by entry; but an idiot, or non compos mentis, by their laches shall be barred of their entry ; and therefore, if they are disseised, and the disseisor dies seised, it (a) Antea, 124a,2; Cro. Eliz. 187; Co. Litt. 247 a; Perk. sect. 24; 2 Inst. 483; Bro. Fines, Levies, &c. 75; 12 Co. 128, 124. (b) Antea, 124 a. (c) Co. Litt. 247a; Plow. 19a. (d) Co. Litt. 26, 26; Plow. 8596; 2 Inst. 510, 611. (e) 2 Inst. 620; Plowd. 866 a. 84 530 IDIOCY, LUNACY, ETC. shall toll their entry ; but after their death their heir may enter and take advantage of the infirmity of their ancestor; and his laches, which shall prejudice himself, shall not ‘prejudice his heir of his entry; and all this appears by Littleton, lib. 3, cap. Descents (a), fol. 95. For Littleton saith, no laches can be adjudged by the law in him who has no discretion in such case, sc. having regard to his heir, and so is the differ- ence. As to that which is commonly objected, that the civil law, in this point, is grounded upon greater reason than the common law; for by the civil law, all acts which idiots, or non compos mentis, do without their tutor, are utterly void ; and this seems to some more reasonable than the common law, because he who is an idiot, or non compos mentis, wants discretion and understanding, and that comes by the act and visitation of God; therefore they say (God forbid) that his acts or laches, during that time, should bind him; others conceive that the ancient common law agrees with the civil law in this case; for Bracton, lib. 3, fol. 100, saith: ‘‘furiosus autem stipulari non potest, nec aliquod negotium agere, quia non intelligit quod agit ;” and therefore it seems unreasonable that acts done by them who have no discretion, nor the use of reason (b), “qui,” as Bracton saith, “non multum distant a brutis qui ratione carent,” should bind themselves; and therefore it is (as is commonly said) a great defect in law, that no tutor is assigned to them by law, who may protect them, and principally their inheritance ; as to that it must be known, that the law of England has provided for them a tutor, and has made provision for the preservation of their in- heritance (c), and their goods also, and therefore, in the case of an idiot or fool natural, for whom there is no expectation, but that he, during his life, will remain without discretion and use of reason, the law has given the custody of him, and all that he has, to the king, who (as F. N. B. 282, says) is bound of right by his laws to defend his subjects, and their goods and chattels, lands and tenements ; and because every subject is in the king’s protection; an idiot who cannot defend or govern himself, nor order his lands and tenements, goods and chattels, the king, of right, ought to have him and to order him, his lands, goods, and chattels; and this, it appears, was the common law ; for Britton, fol. 16, who wrote anno 5 E. I. saith, that if any heir is a fool natural, by which he is not able to demand and keep his inheritance, &c., that such heirs of whomsoever they hold, male or female, remain in the custody of the king, with all their inheritance; and thence it follows, that the Statute of Prerog. Regis, cap. 9, made in 17 E. II, long time after Britton wrote, was but a declaration of the common law, and therewith agrees 18 KE. III. Scire Facias, 10, where it appears by the said Statute Prerog. Regis (d): “quod rex habebit custodiam terrarum fatuo- rum naturalium, capiendo exitus eorundem sine vasto et destructione, et inveniet eis necessaria sua de cujuscunque feod. terre ille fuerint, et post mortem eorun- dem reddat eam rectis heredib., ita quod nullatenus per eosdem fatuos alienentur nec quod eor. heredes exhzredentur.”” Upon these words I observe divers things: 1. That the law gives the king but the custody of the lands of the idiot, that although it con- tinues during the life of the idiot, yet, having but the custody, the king (e) has not the freehold in him, but the freehold is in the idiot, for the statute says, “quod post mortem eorundem reddet ea rectis heredibus,” and that appears also in 17 E. III. 11 and 18 (31) E. it. ; Saver, Default, 87.. 2. Although the statute says, custodiam terrarum, yet the king shall have as well the custody of the body, and of their goods and chattels, as of the lands and other hereditaments, and as well those which he has by purchase (/), as those which he has as heirs by the common law. 8. That he ought (a) Lit. Sec. 405; Con. Claims, fol. 30. (b) Co. Litt. 185); Stamf. Prerog. 33 b. (c) Co. Litt. 247 a. (d) Stamf. Preerog. 33 b, 84; 8 Co. 170a; 2 Inst. 14, 1 and 23; Dyer, 25, 26, pl. 16; Moore, 4; 29 Ed. IIL. 43 b. oie (e) Stamf. Pr. 85. (f) Co. Litt. 23. MITCHELL ¥. KINGMAN. 531 to be an idiot a nativitate, sc. fatuus naturalis, and not by accident or infirmity. 4. That no feoffment, gift, lease, or release, that an idiot can make of his inheritance but may be avoided during his life, which] appears by these words, ‘‘ita quod nullatenus per eosdem fatuos alienentur, nec quod eorum heredes exheredentur:” suppose then that an idiot above the age of twenty-one years makes a feoffment in fee of his in- heritance, if you ask how and in what manner it may be avoided during his life? I answer that it is found by office at the king’s suit (a), that he was idiot a nativitate, and that he has aliened his lands, then upon a scire facias against the alienees, the land shall be seised into the king’s hands, and thereby the inheritance shall be revested in the-idiot. 18 EB. III. Sci. Fac. 10; 32 E. IIL Sci. Fac. 106; 50 Ass. 2(b). For the statute says, “quod post mortem eorum reddat eam rectis heredibus,” which the king cannot do, neither can the king have the possession of the land to his own use, unless by the office and the seisure such conveyance made by the idiot be de- stroyed, and that doth not impugn the said maxim of the common law. For in this case the idiot, in no plea that he can plead, shall disable (c) or stultify himself; but all this is found by office, by the inquisition and verdict of twelve men at the king’s suit, who are not concluded to speak the truth, and such office, when it is found, shall have relation (d) a tempore nativitatis to avoid all mean acts done by the idiot, as feoffments, releases, &c.: and therewith agree 23 (82) E. IIL, &., Sci. Fac. 106; and Stamf. Prerog. 346; F. N. B. 202 E. But notwithstanding the words of the said act are general and emphatical, nul- laten. alienentur, yet if he aliens by fine (e) or recovery, it shall bind him as has been said, for the cause aforesaid; and so, after such office found, all gifts made by him of his goods or chattels, and all bonds made by such idiot, are utterly void; and, after such office found, if the idiot be sued in any action upon any bond or writing that he has made, the king, by his writ (so long as the office stands in force) reciting the office, shall send a supersedeas to the justices where the suit is commenced ; but the king shall not have the custody of the land which an idiot holds by copy (/), for that is but an estate at will by the common law, and, if the king should have the custody of it, it would be a great prejudice to the lord of the manor; but yet an alienation made by an idiot of his copyhold after office found, shall be avoided (vide 18 Eliz. Dyer, 802). And that the king shall have the protection of the goods (g) and chattels of an idiot, as well as of his lands, appears by F. N. B. 282 6, where he says, that if an idiot, who cannot defend or govern himself, nor order his lands, tenements, goods, and chattels, the king of right ought to have him in his custody, and to pro- tect him and his lands, goods, and chattels ; and this appears also by the writ in the “Reg. de! idiota inquirendo,” where it is said (2) “quia accepimus quod J. de B. fatuus et idiota existit ita qd. regimini sui ipsius terrarum, tenementorum, bonorum, (a) Jenk. Cent. 40; Co. Lit. 247a; 8 Co. 170a; 2 Rol. 337; Godb. 302; F. N. B. 202e; Stamf. Prerog. 34. (b) Antea, 566; Br. Alienat. 14; Br. Idiot, 2; Br. Travers de office, 22; antea, 24; Br. Feoffment de, &c. 63. (c) Jenk. Cent. 40; Cr. El. 898, 622; F. N. B. 202d; 1 Rol. 2; Br. Faits, 62; Fitz. Issue, 53; Godb. 302; Co. Litt. 247a,b; Br. Dum fuit infra atatem, 3; Br. Entry Congeable, 42; Lit. sect. 405!; Lit. 95 a, b. (d) 8 Co. 1704, : (e) Cro. El. 187; Co. Litt. 247a; Perk. sect. 24; Br. Fines, Levies, &c. 75; 12 Co. 123, 124; 2 Inst. 483. (f) Hard. 434; Stiles 21. (g) Stamf. Pr. 36 a.] (A) F.N. B. 282 6. 532 IDIOCY, LUNACY, ETC. et cattallorum suor. non sufficit, et quod ipse in fatuitate sua magnam partem terrarum et tenementor. suor. alienavit, et etiam magnam bonor. et catallor. suor. dis- sipavit in exheredationem suam, et nostri prejudic. manifest., nos indemnitati ipsius in hac parte prospicere volentes,” &c. By which it appears that, by the common law, the king shall have as great protection of the goods and chattels of an idiot as of his lands, and that as well the consumption of his goods and chattels, as the alienation of his lands is to be remedied and redressed by the king, to whom the law gives his custody and protection. And as, after office found, he cannot alien (a), give, &c., so alienations, gifts, &c., made before office found, shall be avoided after office thereof found, as is aforesaid, for no laches shall be accounted in the king, nor no prejudice thereby accrue to the idiot, for not suing of the office before the feoffment or gift. But if the idiot dies before office found, after his death no office can be found ; for the words of the writ are, “et ipsum viis et miodis quibus super statu suo melius poteritis informari circumspecte examinaretis,” &c., which cannot be done when he is dead; and without office the king cannot be entitled (16 E. III. Livery, 30); and then the former differences as to his lands and goods hold. The same law (0), ifa moan who was of sound memory becomes non compos mentis, and afterwards aliens his land or goods or chattels, and afterwards, by office, at the king’s suit it is found that he was non compos mentis, and that he has aliened, &c., the king shall protect him who cannot protect himself, as is aforesaid, and shall take the profits of his lands and of all that he had (which the king could not do if his alienation or gift should stand) (c), and therewith maintain him and his family ; but the king shall not take any part of the said profits to his own use ; and all this appears by the Stat. of Prerog. Reg. cap. 10, which was but a declaration of the common law; item, rex providebit, &c. Et nota that the said words of F. N. B. 232, that the king (d) is bound of right by his laws to defend his subjects, and their goods and chattels, lands and tenements, extend as well to non compos mentis as to an idiot; but, in case of'non compos meniis, the king has not any interest in the lunatic (as he has in the idiot), because the lunatic may recover his memory, which he has lost ; and therefore, in the case of the idiot, the law says (e), “Rex habebit custodiam,” but in the case of non compos mentis, “ Rex providebit.” And as to alienation made by non compos mentis, the words are all one as they are in the case of the idiot, sc. “ ita quod pred. terr. et tenementa infra pred. tempus nulla- tenus alienentur ;”” and, therefore, after the office found thereof, the alienation, gift, &c., of him who is non compos mentis are in equal case with the alienation or gift of an idiot; and the said words of the said writ in the Register, “quia accepimus quod J. de B. fatuus et idiota existit,” &c.(f), extend as well to non compos mentis as to a fool natural; for afterwards in the same writ, it is said, “ diligenter inquiras si idem J. fatuus et idiota sit necne, et si sit tunc utrum a nativitate sua an ab alio tempore, et si ab alio tempore, tunc a quo tempore et qualiter et quomodo, et si lucidis gaudet intervallis, et si idem J. in eodem statu existens terras et tenementa aliqua alienavit necne,” &c. So that it appears that in judgment of law, Jfatuus et idiota include as well non compos mentis as idiota a nativitate, and therefore they are in the same case as to the alienation of their lands and tenements, goods and chattels. Hil. 28 H. VIII. Rot. 401, in C. B., the case was in trespass quare clauswmn Jregit, and cut his trees in Paddington, in the county of Middlesex, per Johan. Frauncis v. Will. Holmes (9) the defendant pleaded that it was found by office before the escheator in the said (a) 8 Co. 170, 2, 1. (b) Stamf. Prerog. 34a; Godb. 321. (c) Dyer, 26 a. (d) Stamf. Preerog. 86}; 2 Sid. 124. (e) 17 E. II. c. 9, 10. (f) F.N. B. 232 8. (g) 1 Anders. 28; Moor, 4; N. Bendl. 17, 18; Dy. 25, 26, pl. 164. MITCHELL v. KINGMAN. 583 county of Middlesex, that the said John Frauncis was a lunatic, &c., and that he was seised in fee of the land in which, &c., wherefore the king seized his person and his land, and by his letters-patent granted the rule, custody, and government of the same person, and of his lands, to the said Holmes, quamdiu that the person was lunatic, to take the profits to his own use, and so justified and prayed in aid of the king; and thereupon it was demurred in law if he should have aid or not. And it was adjudged that he should not have aid of the king, for this grant was utterly void: for the king is bound to keep the said lunatic, his wife, children, and house- hold, with the profits of the land, and without taking any thing to his own use, but all to the use of the non compos mentis and his family; and all this to the intent that the king may provide that he who wants reason shall not alien his lands nor waste his goods ; and the king, after office found, has only provision, and has not any custody or possession, of the body or lands of one non compos mentis, as he has of an idiot, and he has nothing to grant over; but, if the king provides one to have care and charge, that he who is non compos mentis and his family shall be maintained, and that nothing shall be wasted ; or, if one of his own head takes so much upon himself, —in this case he is but as bailiff of him who is non compos mentis (d), and shall be accountable as bai- liff to him who is non compos mentis, or to his executors or administrators ; and he can- not cut down trees, but for necessary housebote, ploughbote, and carbote, and to repair ancient pales, and all that which a bailiff may do he may do, and not otherwise. And therewith agrees a writ in the Register directed to the sheriff, “ diligenter inquiras utrum J. de. B. a nativitatis sue tempore semper hactenus purus idiota existit, per quod custodiam terrarum et tenementorum suorum in C. ad nos debeat pertinere, an per infortun. vel alio modo in hujusm. infirmitat. postea inciderit, propter quod hujusmodi custodiam ad nos pertinere non debeat.” And so, by these differences annexed, you will understand your books, 18 E. II. Fines, 120 ; 3 E. IIT. tit. Entry Congeable, Statham, 3 E. III. Formedon—; 5 E. III. 70; 10 E. III. Scire Facias, 10; and as well 82 E. III. Scire Facias, 106; 17 Ass. 17; 17 E. III. 11; 25 Ass. 4; 85 Ass. 10; 50 Ass. 2; 9 H. VI.6; 39 H. VI. 24 (42); 12 E. IV. 8; F.N. B. 202; and Stamf. Prerog. 34; Bract. lib. 2, fol. 11, 12, and lib. 8, fol. 100; Britton, fol. 66; Brooke, tit. Dum fuit infra etatem, 9; and divers writs in the Reg- ister, fol. (—) and which are agreeable with the true reason of the common law (6). Nota, reader, idiota sive idiotes is a Greek word, and properly signifies a private man who has not any public office ; apud Latinos accipitur for illiterate and simple ; apud jurisperitos nostros, non compos mentis ; apud Anglos, in common speech, a natural fool ; “ fatuus proprie dicitur a fando, quia fatur qd. puer primo fatur, id est, quia inepte loquitur (c); sed apud jurisperitos nostros accipitur pro non compos mentis, et fatuus dicitur qui omnino desipit; stultus dicitur a stupore, quia stultus est qui propter stu- porem movetur; levius est esse stultum quam fatuum, sc. imprudens, improvidus, ignorans mali et boni. Insanus qui abjecta ratione omnia cum impetu et furore facit. Amens ab. (a) que est particula privativa, et mente, id est consilio et animo. Demens est qui non cogitat quid agit aut loquitur, (de) est particula privativa; amens qui prorsus insanit ; (Arist. 7.) Ethicorum amentes dicuntur qui a natura experti rationis solum sensuum munus exequuntur.” (a) Hutt. 16. (b) Co. Litt. 246 b, 247 a, b. (c) Co. Litt. 246 6. 534 IDIOCY, LUNACY, ETC. © Batu v. MANNIN. (3 Bligh, nN. 8.1, 8. c. Smith & B. 183; 1 Dow & C. 380. House of Lords. Error to Irish Court of Exchequer Chamber, March 16, 1829.) Degree of Unsoundness of Mind requisite to avoid a Deed. Idiocy.—On a question whether a deed was void in law on the ground of unsoundness of mind in the person by whom it was executed, the judge directed the jury that the question for them to try was, whether J. S. B. was a person of sound mind or not; and that to constitute such unsoundness of mind as should avoid a deed at law, the person executing must be incapable of understanding and acting in the ordinary affairs of life; that it was not necessary that he should be without any glimmering of reason; and that, as one test of such incapacity, the jury were at liberty to consider whether he was capable of understanding what he did by executing the deed in question, when its general purport was fully explained to him. Exception to this; for that the judge ought to have directed the jury that the unsoundness must amount to idiocy, in the strict legal definition of that term. But the judge’s direction was held correct, and the judgment affirmed by the Lords. In the year 1762, John Ball was seised in fee of the town and lands of Bannaghnough, otherwise Three Castles, Neaglesland, Boards, and Pricksheath and Monafruka, lying in the parish of Bannaghnough, otherwise Three Castles, in the barony of Cranagh and county of Kilkenny. Dorothea Margaret Ball, his only child, intermarried privately with Richard Shinton. For the purpose of making a provision for Dorothea Margaret and her issue, independently of her husband, John Ball executed an indenture of release upon the 10th of July, 1762, by which he granted, released, and confirmed the said town and lands to certain trustees, in trust to the use of himself for life, remainder to his daughter Dorothea Margaret for life, remainder to her heirs in tail male, with divers remainders over, reserving a power to alter these limitations by deed or will. On the 6th of March, 1768, John Ball, by his will, after charging the town and lands with an annuity of 1001. per annum to his wife during her life, devised and directed as follows: “And I hereby devise, and direct, and declare, that the said trustees mentioned in the said deed of the 10th of July, 1762, shall, as far as the law can permit, be deemed and taken to stand seised of my estate vested in them or granted to them, in the first place, to the uses of this my will; and that they do every act in their power to establish and fulfil the same ; BALL v. MANNIN. 5385 and my further will is, that, as there are now seven years of a lease of the house and gardens and seventy acres of land to come, commencing from the 25th of March, 1768, to Folliot Warren, Esq., that at the expiration of the said lease my daughter Dorothea Margaret Shinton may live in said house, and may have said number of acres during her life, but not her husband or any one of their family after her decease ; but to be set by my said trustees after her decease, to the best improved rent for the benefit of her children, nor shall the said Shinton have any power during said Dorothea Margaret’s life, to turn, plough, or cut down any oak, ash, elm, hazle, or apple trees or hedges whatsoever, or on any account, and to keep up the improvements for the benefit of her children.” By this will the testator also made a large provision for the younger children of his daughter. John Ball died soon after executing this will. In the year 1778, Richard Shinton, the husband of Dorothea Margaret, died, leaving issue, John, their eldest son, who was from his infancy weak in mind; Lancelot, their second son, the father of the defendant in error; Richard, their third son; George, their fourth son; and an only daughter, Dorothea. All these children took the name of Ball. Soon after the death of Richard Shinton, Dorothea Margaret intermarried with Richard Ball, for many years a practising attorney, by whom she had an only son, Abraham, who was the father of the plaintiff in error. By deed, dated October 17, 1785, and executed by and between Richard Ball and Dorothea Margaret, his wife, of the first part, John Shinton Ball of the second part, the Reverend Wardlow Ball, clerk, and Sergeant John Ball, of the third part, John Humphrey of the fourth part, and Samuel Foley of the fifth and last part, reciting the title of Dorothea Margaret and John Shinton Ball to the said estate, and an agreement entered into for providing a pres- ent maintenance for him thereout, and that the younger children of Dorothea Margaret had been left wholly without any provision by the former deed; and further reciting the expenditure made by Richard Ball on the house and demesne, for the benefit of the inheritance, Richard Ball and Dorothea Margaret, his wife, and: John Shinton Ball, joined in assigning the said lands and estate to Wardlow and John Ball, to the use of John Humphrey, for a term of three hundred years, in trust to secure the maintenance 536 IDIOCY, LUNACY, ETC. and present provision for John Shinton Ball, payable quarterly, and subject thereto to the use of Dorothea Margaret, without impeachment of waste, for her life, with remainder to Richard Ball for his life, in like manner with remainder to Samuel Foley for a term of five hundred years, in trust to raise the portions so agreed to be provided for the younger children of Dorothea Margaret, and subject thereto to the use of John Shinton Ball, and the heirs male of his body ; and, in default of such issue, to the use of such other of her children, and for such estates therein, as Dorothea Margaret should by deed or writing, under her hand and seal, and attested by two or more credible witnesses, or by her last will, direct and appoint; and, in default of such direction and appointment, to the use of Richard Shinton, George Shinton, and Abraham Ball, three of her children, share and share alike as tenants in common, in tail general; and for default of such issue, with remainder to the right heirs of Dorothea Margaret for ever; and the deed, after reciting that a fine with proclamation had been levied in the preceding Trinity term, of the lands by Richard and Dorothea Margaret Ball, and John Shinton Ball, to Wardlow Ball, directed that the fine should enure to make him a perfect tenant to the precipe of the lands, that a common recovery might be suffered thereof by the said parties, in order to bar all estates tail and remainders therein, and to enure to the uses declared by the said deed, and reserved a joint power of revocation of the said uses and trusts, and of new appointment of others in their stead, to Richard and Dorothea and John Shinton Ball, during the lives of Richard and Dorothea; and to John Shinton Ball, and the survivors of Richard and Dorothea Margaret, during the life of such survivor. This deed was registered on the 21st day of October, 1789. The recovery was suffered by John Shinton Ball as of Michaelmas term, 1785, by virtue of a warrant of attorney duly executed by him for the purpose, in which recovery Thomas Ball was demandant, and Wardlow Ball was tenant to the preecipe, who appeared and vouched John Shinton Ball, who appeared by his attorney and vouched the common vouchee. John Shinton Ball died in the year 1794, and his brother Launcelot Shinton Ball exhibited his bill in the Court of Chancery in Ireland upon the 24th of December, 1800, against Richard Ball and Dorothea his wife, stating the settlement and will of John Ball, the imbecility of John Shinton Ball, and that fraud BALL v. MANNIN. 5387 was practised upon him, and praying that Richard and Dorothea might bring into Court the deed of 10th of July, 1762, and that the trusts thereof might be performed, and that the fraudulent deed might be set aside, and that the fine and recovery might enure to the uses of the deed of 1762. This bill was afterwards dismissed at the instance of the plaintiff. By deed dated May 14, 1803, Dorothea Margaret Ball, in pursuance and execution of the power reserved to her by the deed of the 17th of October, 1785, limited and appointed the lands, after her own and her husband’s death, and subject to the trust terms thereby created, to the use of her youngest son, Abraham Ball, and his heirs, subject, however, to and charged with an annuity of 40/. yearly to Richard Shinton, her third son by her first husband, for his life; and a further annuity of 301. yearly to her daughter, Dorothea Shinton, for her life, payable thereout. Abraham Ball afterwards intermarried with Jane Wemys, in consideration of which marriage, a settlement, dated April 4, 1809, was executed by and between Richard Ball and Dorothea Margaret, his wife, of the first part, Abraham Ball of the second part, James Wemys, and Jane his daughter, of the third part, and the said James Wemys, Sir John Blunden, Bart., and the Rev. Sterne Ball, clerk, of the fourth and last part, whereby the said lands and premises were settled and limited to the uses of the said marriage, viz., to provide a present maintenance for Abraham Ball, and a jointure for his intended wife, and subject thereto after the decease of the said, Dorothea Margaret and Richard Ball, to Abraham Ball for his life, and after his death, to the use of the issue of the said marriage, subject to his appoint- ment by deed or will as therein mentioned. The marriage after- wards took effect, and there was issue born thereof, Richard Ball, the plaintiff in error, and.:two daughters, Martha and Dorothea. Richard Ball died in 1818, leaving his wife, Dorothea Margaret, surviving him. Abraham Ball died in 1814, leaving his three children surviving him, and without having exercised the power of appointment given him by the deed of the 4th of April, 1809. Dorothea Margaret Ball died in 1818; upon her death, Richard Ball, the plaintiff in error, and his sisters, took possession of the estate. Immediately after the death of Dorothea Margaret, Lancelot Shinton, her second son, the father of the defendant in error, as 538 IDIOCY, LUNACY, ETC. of Michaelmas term, 1818, brought an ejectment in the Court of Exchequer to recover the possession of the lands and laid demises therein in his own name, and in the names of several other persons, in whom the legal estate in the premises might be considered to be outstanding; defence was taken to this ejectment for all the premises therein in the names of the plaintiff in error and his sisters, and the cause being at issue, a consent was entered into between the parties therein, limiting the issue to be tried between them to the sole question of the competence of John Shinton Ball to execute the deed of the 17th October, 1785. The issue in the cause came on to be tried before a special jury of the county of Kilkenny, at the summer assizes, 1819; when, after the plaintiff had gone through his case, and three witnesses having been examined for the defendant, a compromise was proposed and agreed to on both sides, and made a rule of the Court, and the jury was discharged by consent without giving any verdict. Lancelot Shinton having subsequently refused to abide by the compromise, and to fulfil its terms, and having . proceeded to bring another ejectment to recover possession of the lands in the Court of King’s Bench, and obtained judgment by default therein, a conditional order was obtained from the Court of Exchequer for an attachment against him for his con- tempt of the Court in so proceeding under the circumstances, unless he should forthwith vacate the judgment. Lancelot Shinton, during the proceedings, was in so infirm a a state of health that the order could not be served upon him in person, and in February, 1821, he died without having been served therewith, leaving the defendant in error his eldest son and heir at law, who immediately thereupon as of Hilary term, 1821, brought an ejectment for recovery of the lands in the Court of King’s Bench in Ireland, on his own and other demises, to which ejectment defence was taken in the name of the plaintiff in error. In the following year the father of the lessor of the defendant in error died, and in the next year an ejectment was brought by the defendant in error against the plaintiff, which came on to be tried at the assizes for the County of Kilkenny on the 4th day of August, 1823, when (as the record bears) it was admitted and agreed by the counsel concerned for the parties on each side, that the sole question to be tried should be, ‘‘ Whether a certain deed executed by the said John Shinton Ball in his lifetime, bearing date the 17th day of October, 1785, was or was not valid at law, BALL Uv. MANNIN. 589 as the deed of him the said John Shinton Ball, which deed had been executed by the said John Shinton Ball and the other parties thereto, for the purpose of leading the uses of a cer- tain fine and common recovery levied and suffered by the said John Shinton Ball in his lifetime, of the lands in the said eject- ment mentioned, as remainder man in tail thereof, in conjunction with his mother Dorothea Ball, the preceding tenant for life of the said lands, and that if the said deed should be found to be not valid, as the deed of the said John Shinton Ball, that then a verdict should pass for the lessor of the plain- tiff in this case as heir male of the body of Lancelot Shinton his father, deceased, who in his lifetime was next remain- der-man in tail of the said lands, and in such right entitled to the said lands on the death of his mother, the said Dorothea, the tenant for life (the said John Shinton Ball, his elder brother, being then dead, without lawful issue of his body), and, on the other hand, if the said deed should be found to be valid as the deed of the said John Shinton Ball, then that a verdict should pass for the defendant; and it was further admitted and agreed . by the counsel on each side for the said parties, that the said John Shinton Ball had died in the month of December, 1794, and had not left any lawful issue of his body, and that Richard Ball, the second husband of the said Dorothea Ball, had died in the year 1813, and that the said Dorothea had died in the year 1818, leaving the said Launcelot Shinton, the father of the lessor of the plaintiff, her then oldest surviving son by her first husband, and Abraham Ball, father of the defendant, her son by the said Richard Ball, her second husband, her surviving ; and the counsel for the lessor of the plaintiff having thereupon opened the case in his behalf in order to maintain the said issue, on his part produced several witnesses, who being duly sworn deposed, that the said John Shinton Ball at the time of his executing the said deed, was not, in their opinion, competent to execute the same, and further deposed to acts and conduct of the said John Shinton Ball, as evi- dencing his mental incapacity, and having given such evidence, and the said deed of the 17th October, 1785, having been read in evidence, the said counsel thereupon closed the plaintiff’s case ; and the counsel for the defendant thereupon, after stating the case on his behalf, called several witnesses to maintain the issue on his part, who being sworn and examined deposed, that in their opinion the said John Shinton Ball at the said time was com- 540 IDIOCY, LUNACY, ETC. petent to execute the said deed, and further deposed to acts and. conduct of the said John Shinton Ball as evidencing his mental capacity, and deposed that the said John Shinton Ball was cer- tainly not an idiot ; and thereupon the case and evidence having been closed on both sides, and it having been admitted and agreed by the counsel for each of the parties, that the alleged incapacity of mind of the said John Shinton Ball did not arise from lunacy, no evidence having been given of lunacy in him, the learned judge .in his charge commented and observed upon the evidence given on each side, and told the jury, that the question for them to try was, whether the said John Shinton Ball was a person of sound mind or not; and that to constitute such unsoundness of mind, as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordi- nary affairs of life; that it was not. necessary that he should be without any glimmering of reason, but that it was sufficient if he was incapable of understanding his own ordinary concerns, and that as one test of such incapacity, the jury were at liberty to consider, whether he was capable of understanding what he did by executing the deed in question when its general purport was fully explained to him, whereupon the counsel for the defendant in the action called on the learned judge, and required him to tell and direct the jury, that, in order to avoid said deed at law, the unsoundness of mind of the said John Shinton Ball must amount to that degree of unsoundness which constituted idiocy according to the strict legal definition of an idiot. But the learned judge refused so to tell or direct the said jury on the said trial, but, on the contrary, directed them as before stated; wherefore the counsel for the said defendant on his behalf ex- cepted to the said opinion and direction of the learned judge on the said trial; ” and, at the request of the counsel for the plain- tiff in error, the learned judge who presided at the trial put his seal to a bill of exceptions to the above effect, tendered by them. The matter having been argued upon the exceptions before the Court of King’s Bench in Ireland, that Court, on the 8th of February, 1825, overruled the exceptions, and judgment was thereupon entered for the defendant in error, The plaintiff in error being dissatisfied with, this judgment of the Court of King’s Bench, brought his writ of error returnable in the Exchequer Chamber in Ireland, insisting “that in the record and proceedings aforesaid, and also in the matter recited BALL v. MANNIN, 541 and contained in the bill of exceptions, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that the Honorable Mr. Justice Jess, the learned judge before whom, and so forth, at and upon the trial of the issue so joined between the parties aforesaid, did direct and tell the jury so impanelled to try the issue, that the question for them to try was, whether the said John Shinton Ball was a person of sound mind or not, and that, to constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life. That it was not necessary that he should be without any glimmering of reason, but that it was sufficient if he was incapable of under- standing his own ordinary concerns ; and that, as one test of such incapacity, the said jury were at liberty to consider whether he was capable of understanding what he did by making the deed in question, when its general purport was generally explained to him. And there is also error in this; to wit, that the learned judge, upon the trial of the issue, did refuse to tell and direct the said jury, though called upon so to do by counsel for the said Richard Ball, that, in order to avoid the deed so executed by the said John Shinton Ball at law, the unsoundness of mind of the said John Shinton Ball must amount to that degree of unsound- ness of mind which constituted idiocy, according to the strict legal definition of an idiot. And there is also error in this, to wit, that by the record aforesaid it appears that the verdict afore- said was given upon the issue for the said Patrick Mannin, whereas the verdict, by the law of the land as to the issue, ought to have been given for the said Richard Ball,” &c. The case was argued before the Court of Exchequer Chamber in Ireland, upon the 15th day of June, 1826, when the judges gave their opinion seriatim, six of them being of opinion that the judgment should and the remaining six that it should not be reversed ; whereupon, according to the practice of the Court, the judgment remained undisturbed and was affirmed. Richard Ball then brought his writ of error returnable in Parliament, and assigned for errors the several matters on which he insisted before the Court of Ex- chequer Chamber in Ireland, to which the said Patrick Mannin rejoined that there was no error. For the plaintiff in error— Mr. Sugden and Mr. Swan. There are only four kinds of insanity known to the law, lunacy, 542 IDIOCY, LUNACY, ETC. idiocy, accidental loss and wilful deprivation of understanding.} This case does not fall within the two last divisions, and lunacy being excluded by agreement, the question is confined to idiocy. In the cases of drunkenness and blindness, and where the question is as to the degree of understanding, the Courts proceed on the ground of fraud, which is a good objection at law as well as in equity. There are cases peculiar to equity, which proceed on equitable grounds.2 The judgment in this case seems to have proceeded on the principles applied in commissions of lunacy and in Courts of equity, which is a different species of jurisdiction ; and even in those cases the jury must find that the person is of unsound mind ; it is not sufficient to find that he is of weak judg- ment and understanding, and incapable to manage his affairs ; and formerly commissions were not granted upon this ground.2 Where Courts of equity make deeds void on the ground of weakness of understanding, it is in cases where there is inadequacy of price, or undue influence, by parental authority or otherwise; and even in such cases effect is given to such deeds, so far as they are providently executed.* If insanity were the only ground, the case would be sent toa Court of law. If weakness of understanding is the ground of proceeding, it is only one among other ingredients which in equity constitute fraud. To direct a jury to consider whether a man.is capable of understanding a deed is a dangerous practice, and contrary to the practice on commissions of lunacy. In ex parte Holmes ® the jury found that the party was “ not competent,” and the proceeding was quashed because the return was deemed insufficient. In ex parte Cranmer,® the return was, that “he was so far debilitated in his mind as to be incapable of the general management of his affairs.” This return was quashed for insuffi- ciency ; so a return in the words of the judge’s direction to the jury in this case would have been quashed. If the finding is not in the words of the commission, it must be in words of known legal import, that the party is of unsound mind. In Ridgway v. 1 Co. Litt. 248a; Beverley’s case, 4 Co. 124. ? Osmond v. Fitzroy, citing Johnson v. Medlicot, 3 P. W. 130. 8 Exp. Barnsley, 8 Atk. 168; Lord Donegal’s case, 2 Ves. 407. See Ridgway v. Darwin, 8 Ves. 65. 4 Bennet v. Vade, 2 Atk. 324. 5 Before Lord Chancellor Lynpnurst, 23d Nov. 1827 > & new commission issued on the 26th of November, under which the party was found of unsound mind. 6 12 Ves. Jr. 445, BALL v. MANNIN. 548 Darwin,! Lord Expon ordered physicians to visit a lady whom a jury had found not to be a lunatic, for the purpose of determining whether her state of mind was competent to the management of her affairs, with a view to personal control without a commission, and he said that, although it was not a case of insanity, he thought himself bound to do this, if it was only made out that it was not fit that she should have the management of her pecu- niary affairs. But this is language unfit to be addressed to a jury, and the doctrine cannot be applied at law. The cases of supposed partial insanity? are in fact total: the proof only is partial. At law the only question is, whether the party is of unsound mind. Before the Lord Chancellor the ques- tion may be, where insanity is not proved, whether the protection of the Court is not necessary for the individual. There is a case now before the Lord Chancellor, where the party has lost his faculties by age.® The case of Faulder v. Silk‘ is no authority for the defendant ; it is an authority for the plaintiff. There the fact of lunacy was established prior to the execution of the bond, and the only question was, whether it was executed during a lucid interval. In this case the question of lunacy is excluded. The direction of the judge was wrong, because it was not confined to idiocy, and because it induced the jury to look to the whole life of the party who executed the deed, not precisely to the particular time of execution. In the case of wills, the question turns upon general capacity, and wills have been found void where the testator would not have been found insane if living. The question as to deeds stands on different principles. That is a question between parties dealing for consideration, whereas in wills it is between representatives and voluntary donees. The charge of the judge is vague, uncertain, and calculated to mislead the jury. If the jury were satisfied that the party was capable at the time of executing the deed, they were not at lib- erty to enter into the question whether he was capable of acting in the ordinary affairs of life. The jury should have been directed 1 8 Ves. 65. See Sherwood v. Sanderson, 19 Ves. 280. 2 Dew v. Clarke, Addam’s Ecc. 3,79; Haggard’s Judgm. of Sir J. Nichol before the Delegates, 1828. Before the Lord Chancellor an application for a commission of re- view, 1829, not reported. Exp. Mitchell heard before the Lord Chancellor in private. 3 Exp. Clement, still pending. 4 8 Camp. 126, more full, 1 Coll. Lun. 390. 544 IDIOCY, LUNACY, ETC. to inquire whether he understood the act, and to go no farther. They were directed to try a question not before them. His gen-- eral conduct was not a question at issue. He might have been prodigal, and apparently incapable of acting in ordinary affairs ; yet not insane, and incapable of understanding and executing the deed in question. The great objection to the judge’s direc- tion is, that the capacity to do the act is not put as the real crite- rion and distinct matter in issue, but only as one test to show the ' soundness of his mind as to all the acts of his life. So that, upon a question of purchase, no man could act safely without inquiring as to the whole conduct in a vendor’s life. The question upon a direction to a jury, and the influence which it may have, is very different from the opinion of a judge ona point of law. The direction is wrong both in what is directed and what is omitted. For the defendants in error, the Solicitor - General and Mr. Jervis. This case has been argued as if it were an application to the Court for a new trial, upon the ground of a general misdirection, whereas the question is upon specific exceptions. The statute! provides “that the judgment shall be given according to the exception as allowed or disallowed.” It was the object of the: statute that the trial of the judge should be limited to the precise exception. Ifnew exceptions are to be argued, the judge is treated unfairly. It has been decided that a party is not at liberty to go into the general question.* If the matter is on the record asa bad declaration, the whole record being before the Court, it might be questioned. The question here was limited to the objection, that the judge refused to direct the jury that, in order to avoid the deed, the unsoundness of mind must amount to that degree which constituted idiocy. This raised the question, whether any incapacity short of idiocy could avoid a deed at law. But with this is now mixed up another part of the judge’s address to the jury, which should have been made the subject of exception, if the parties intended to avail themselves of any objection to it. The point was hardly raised in the argument of the case below, and, in fact, was not open for discussion even as to this point. The question put by the judge is in substance whether the party was capable of understanding the deed which he executed, not merely as to the general propriety of his conduct. The letter of the writ, in a commission of lunacy, requires the 1 W. IL, 18 Ed. L 2 Warre v. Miller, 4 B. & C. 588. BALL v. MANNIN. 545 jury to inquire whether the party is lunatic or idiot; but now that form is disregarded, and it is held sufficient to find the party of unsound mind. Why should not a similar change be admitted - in the practice at law? Other rules of law have undergone equal alteration. The rule as to access on a question of legitimacy. The rule that a man cannot stultify himself. So drunkenness is a good evidence on a plea of non est factum and delivery, as an escrow may be given in evidence on the same plea. The real question is, whether the party is capable of understanding the deed he executes. The distinction between deeds and wills is not admitted. The question upon a will is, whether the testator has a mind capable of disposing of his property. The question upon a deed is substantially the same, and juries are always so directed in the case of deeds. The question in Faulder v. Tilt was the same as this. The direction was there given with a greater latitude, and the inquisition was held to be evidence. Lord TEnrerpen. In forming an opinion upon this case, the House can only look at the bill of exceptions to ascertain the facts and questions for decision. Facts not there to be found must be wholly disregarded. Before I enter upon the substance of the question, it is right to advert to a topic so strenuously urged by the counsel for the plaintiff in error, that six of the judges were of opinion that the direction was calculated to mislead the jury. That is an argument which cannot prevail in this House. If all the judges of Ireland were of one opinion upon this subject, and the House had entertained a different opinion, it would have been their bounden duty to act upon their own opinion. A Court of error ought not to be influenced by the judgment of those from whose decision the appeal is brought. (Here the noble lord stated the substance of the record). The question arising out of this record is, whether the judge’s direction to the jury was correct. It was argued by the counsel that the party was not a lunatic (that is, that he was not at one time of sound mind and at another time unsound) ; but, whatever the state of the mind might be, that it was not temporary but permanent. The judge told the jury that the question was, whether the party was of sound mind or not, and that mode of 1 2 Stra. citing Thompson v. Smart, 2 Ventr. See Bridgman v. Holt, Shower’s P. C.; Thompson v. Leach, 12 Mod. 173; Salk. 427, 675. See Lord Raymond, 3138; Comb. 45. \ 85 546 IDIOCY, LUNACY, ETC. stating the question was quite correct. He then proceeded to give a definition: ‘ That to constitute such unsoundness as should avoid a deed at law, the party executing such deed must be incapable of understanding and acting in the ordinary affairs of life.” In that, perhaps, he went too far. The judge then directed the jury, that “it was not necessary he should be without any glimmering of reason ; and, as one test of such incapacity, they were at liberty to consider whether he was capable of under- standing what he did by executing the deed in question, when its general purport was fully explained to him.” The counsel for the defendant then required the judge to tell the jury that, in order to avoid the deed at law, the unsoundness of mind must amount to idiocy, according to the strict legal defi- nition of an idiot; and, this being refused, the bill of exceptions was tendered and sealed. It is impossible to read this record without seeing that the point of the objection is this, and this only, — that it was erroneous to direct the jury to make any other inquiry than this, whether the party was anidiot. If the judge ought so to have directed, the direc- tion given was erroneous ; but it is impossible so to contend. The jury were in substance directed to inquire whether the party was of unsound mind; and I find that the Lord Chancellor, according to the authorities, has held that a finding in these terms is sufficient. As to the strict legal definition, I find in an old book on this subject, that if a person is capable of learning the alphabet he is not within the legal definition of idiocy ; yet it is impossible to hold that persons no farther qualified are capable of executing a deed. The question at law is, whether, in substance, there is such capacity of execution ; and, in effect, the judge in this case so put the question to the jury, when he told them that the question was whether the party was of sound mind or not, and directed them to consider whether he was capable of understanding the deed when explained. The observation as to the glimmering will not make the whole direction erroneous, nor was it irregular or improper when considered in connection with the other parts of the direction to the jury. In my opinion it was right. The objection that the direction was too vague, indefinite, or general, cannot be taken upon this record. Counsel, intending to raise such objection, should call upon the judge to give more specific direction, that he may have the opportunity of correcting his error. DENNETT v, DENNETT, 547 Lord PLunKket. I concur in the proposed judgment; it is un- necessary to assign the reasons. But as to the ambiguity of the direction, if that is to be made a ground of objection, it should be distinctly stated to the judge at the time, and put on the record. The ambiguity of the direction would then be a question for the consideration of the Court of error. So far as the degree of incapacity is concerned, which is requisite to disable from contracting, there seems to be no distinction between idiocy, insanity, or any other kind of mental incapacity ; it being ‘‘ sufficient to invalidate any con- Judgment affirmed. . tract, if it clearly appear that the party contracting did not, at the time, under- stand what he was about.” See 1 Story on Cont. (5th ed.) § 76; Den- nett v. Dennett; Barrett v. Buxton, and notes (post). 8 DeEnNeEtTT v. DENNETT. (44. N. H. 531. Supreme Judicial Court of New Hampshire, June, 1863.) Degree of Impairment of Mind required to disable from Contracting. — Mere weakness of mind does not disable a man from conveying property, if the capacity remains to see things in their true relations, and to form correct con- clusions. If the mind is so impaired that the memory cannot recall the neces- sary facts, nor the judgment be exercised in drawing just conclusions, the power of disposing of property is gone. ‘The evidence must show the degree in which the mind is impaired, to be inconsistent with the rational transaction of business. All that the law requires to make a deed effectual is, that a man should have possession of his reason, so as to understand the effect of the act he is about to perform, where there is no insane delusion. THIS is a petition for a rehearing. The petition of Joseph F. Dennett sets forth that on the 18th of March, 1862, William H. Dennett filed his bill in equity against said Joseph, upon which evidence was taken and a hearing had, and an opinion delivered in favor of said William; but no decree was entered, and the case is still pending. Since the hearing, the petitioner has discovered new evidence as to the mental capacity of Mark Dennett mentioned in said bill, at the time of the execution and delivery by him of the deed mentioned in said bill to said William, the 19th of November, 1852, sufficient, as he believes, to satisfy the Court that said Mark Dennett was not then of sufficient mental capacity to com- prehend and intelligently execute said deed, which evidence was 548 IDIOCY, LUNACY, ETC. not then known to the petitioner, though he used all reasonable diligence to procure evidence in his favor upon the question of, said Mark’s capacity. He prays for a rehearing, and an injunc- tion against a suit at law, &c. The petition and order of notice were served on the petitionee May 19, 1863. Upon the hearing on the original bill it was held that Mark Dennett was capable of making a deed, and the rehearing is sought upon this point only. The affidavits in support of the petition were made by Susan F. Dennett, widow of Mark; Susan D. Fabyan, a niece; Joseph F. Dennett, the petitioner; Benjamin W. Curtis and William Laighton, physicians at Portsmouth, and Jesse P. Bancroft, superintendent of the Asylum for the Insane at Concord. To these were added affidavits of John Fabyan, a brother-in-law ; John P. Dennett, a brother; Olive M. Caswell and Ann S. Huntress, daughters, and Benjamin Hodgdon, whose depositions were before the Court at the hearing, but whose affidavits con- tain some new facts in support of their opinions. On the other side are the affidavits of William H. Dennett, the petitionee, and of Nathan W. Oliver and George Odell, physicians in Portsmouth and North Hampton. The deposition of Dr. Bancroft contains an analysis of the facts stated by the other witnesses of the petitioner, and they are, therefore, not recited. The opinions of the other medical witnesses may be regarded as neutralizing each other. Dr. Bancroft testifies that he has been a physician nineteen years, superintendent of the New Hampshire asylum five years, and has devoted his attention to those diseases which are associated with disorders of the mind. He says: “I have carefully examined the depositions of Benjamin Hodgdon, Susan D. Fabyan, Olive M. Caswell, Ann 8. Huntress, Susan F. Dennett, John P. Den- nett, Joseph F. Dennett, John D. Fabyan, and Drs. William Laighton and Benjamin W. Curtis,—all having reference to the bodily health and mental condition of Mark Dennett, de- ceased. The significant facts, as gathered from the depositions, are as follows: — For many years before his death, Mark Dennett was subject to attacks at intervals, which the deponents call fits. In these seizures there were muscular spasms, as shown in the statement of Susan F. Dennett, that “he was taken with trembling in his hands and arms,” &c. These spasms were unequal on the two sides of the body, as shown by the testimony of J. F. Dennett DENNETT v, DENNETT." 549 that “his face was drawn to one side” and the power of articu- lation lost. J. F. Dennett also states that insensibility accom- panied these attacks, and the return of consciousness was very gradual, as also the use of the muscles. Susan F. and Joseph F. both testify that there was permanent loss of sensibility of one hand and leg, and that the leg in which the sensibility was lost was permanently reduced to two-thirds its natural size. Susan F. Dennett states that he lost the control of the will over the muscles, in the remark that, after the attack fifteen years before his death, he was never able to dress or undress himself. Others also testify to the permanent derangement of the powers of speech. During these attacks there was much derangement of the mental operations, as shown in the statement of Joseph F. Dennett, that, ‘‘ whenever he became able to say any thing, it was of an out-of-the-way character ;” and of Olive M. Caswell that, “before and after the fits, he was entirely out of his head.” Benjamin Hodgdon also states, that on calling at one time, the day after one of these fits, “his son, William H., told him his father was not able to take care of himself, being very much out of his head.”” These symptoms, in common and sometimes rather vague terms, are sufficiently marked to characterize the existence of quite 2 common occurrence, — an organic disease of the brain, probably of one hemisphere. They show that the disease was developed gradually, but progressed steadily from the first, till his death. This supposition is necessary to account for the per- manent paralysis of sensation and motion in one side of the body, and the permanent withering of the leg to two-thirds of its nat- ural size. These last symptoms distinguish the case from one of ordinary epilepsy. The insensibility during and for.a time after the fits, is common to both. Without discussing the question of the classification of this case among diseases, I am satisfied that the essential condition on which the phenomena depended was an organic or structural disease of the brain, which was continuous and progressive from the first seizure, and ended in death. It remains now to inquire, what may be the relation of such a disease of the brain to the mental condition of the individual in whom it occurs. The phenomena enumerated above will not, in the absence of all other facts, demonstrate the necessity of accompanying mental impairment to an equal degree with the body ; because very rare instances do occur in which this group 550 IDIOCY, LUNACY, ETC. of symptoms is seen, while the subject retains, in a considerable degree, the use of the mental faculties, until the fatal issue of the disease in the physical system. But such cases are rare excep- tions to the general course, and indeed it would be difficult to find a case in which there did not occur some mental impairment. The existence of these symptoms alone will, therefore, create the strongest probability, a priori, that the mental powers in any given case would follow the general course, and break down in common with the physical system. With this very strong probability existing in the nature of the case in any given instance, even a moderate number of particular facts in proof directly of mental impairment corresponding to that of the body, would seem competent to establish its existence. The facts bearing directly on this point, and showing that the case of Mark Dennett was not an exception, but that the mental impairment usually seen in such cases did exist in his, are the following: Widow Susan F. Dennett says: ‘“‘ After he began to have fits he did not appear as he used to previously, but was childish.” Dr. Curtis says: “His faculties were exceedingly feeble. He could not, at any time that I saw him, give any account of his feelings, or information as to his case.” Olive M. Caswell says: “For many years previous to his death he was wandering, childish, and unreasonable.” Benjamin Hodgdon says: ‘* His farm was managed badly for a number of years, and so was his other business.” John Fabyan says: “ Before his attack he was enterprising and prosperous, but afterward his afflictions seemed to destroy all his mental energy, and render him incapable of managing his business affairs prudently. He sold wood and timber for less than it was worth, and permitted many to go into his wood-lot and cut and haul out, without his knowing what or how much. In one instance he sold a very large lot of white oak timber for $7 per ton, when it was worth $12 or $14 per ton.” Joseph F. Dennett says: “ After he began to have fits he was childish and forgetful, showing himself as much pleased with a stick of candy or a piece of cake as a child would have been. T have heard him talk very wild on religious subjects, saying that he was the most perfect man since Christ. I have often heard him talk with others childishly about his affairs, and cry like a child. He suffered people to go upon his wood-lot, year after year, and cut as they pleased without looking after them.” These constitute the only points in the depositions bearing DENNETT ¥. DENNETT. 551 directly on the mental state of Mark Dennett, after the invasion of the brain disease. Although the facts are less numerous than could have been desired for easily forming an opinion, still they afford very great and important evidence of his enfeebled mental powers, as shown under a considerable variety of circumstances, and applied to a variety of subjects, and thus do much to cor- roborate the conclusions to which each of them separately is cal- culated to lead; namely, that from the invasion of the brain disease the mind began to deteriorate as a result of that disease, and continued to do so as it progressed to the fatal termination. Before the attack he was characterized by enterprise and good management in business. After this, it appears that he made particular trades which were wholly inconsistent with his former character for prudence and shrewdness, and his transactions gen- erally were disastrous. This cannot well be accounted for in a man who, for the first years of his business life, had been enter- prising and prosperous, except on the supposition that from some cause his mental faculties had sustained serious damage. And it is hardly conceivable that a man possessing the good sense that Mark Dennett is represented to have exercised in the early part of his life, should, for a long series of years previous to his death, have been habitually pleased with trifles, or have given utterance to the comparison of himself with Christ in perfection, on any other supposition than that of mental disease, which had destroyed the healthy operation of his faculties. : Therefore taking the statements of the different deponents as facts, I see no philosophical explanation of them except on the supposition above named, that bodily and mental disease were associated in the case, and that the latter was dependent on the former and the legitimate consequence of it. I am therefore brought to the conclusion that (since the facts bearing directly on his mental state cannot be properly explained without the sup- position of great deterioration of the mental faculties, and since a brain disease coexisted, which is not only capable of producing such disorder of the mind, but is with great uniformity followed by loss of mental integrity) such was the result in the case of Mark Dennett, and that the same was in astate of dementia during the latter years of his life, produced by the disease of the brain referred to in the first part of this deposition.” Joseph F. Dennett in his affidavit says: ‘‘ During the pendency of the bill in equity of William H. Dennett against me, and before 552 IDIOCY, LUNACY, ETC. the hearing thereon, I made every exertion ‘to procure testimony bearing on the competency of Mark Dennett to do business; that I could not learn that any physician knew any thing about his state, excepting Dr. Cheever, who has long been dead; that shortly after the hearing I learned that Dr. Laighton had seen and known him, and that I took his testimony as soon as I could. Prior to said hearing I questioned Mrs. Susan F. Dennett, widow of said Mark, and she refused to say any thing, except that she knew he did not know what he was about, because he executed the deed without informing her of it. I did not then understand that the withering of his leg and side was a matter bearing on the question JI never knew of Dr. Curtis knowing any thing of my father’s state until the last of February or first of March, and I took his testimony as soon as I could procure it. Until I had the above testimony I did not suppose that I had sufficient facts on which to procure the opinion of an expert, and I procured the affidavit of Dr. Bancroft as soon as I could after I had testimony sufficient to submit to him. I did not know what Susan D. Fabyan would testify until after said hearing.” W. H. Rollins, for the petitioner. A. H. Hoyt, for the petitionee. Brett, C. J. Where new facts or new evidence have been discovered after the hearing, which might probably change the decision, and before the final decree is entered, the case may be reheard upon petition, and the decree reversed, modified, or cor- rected. The petition should set forth the case, and the proceed- ings in it; the new facts or evidence, and when discovered; and that it was unknown at the hearing, and could not have been known by the exercise of reasonable diligence. Notice of the application must be duly given to the adverse party; and it must be fully supported by affidavits, which may be met by counter affidavits. 8 Dan. Ch. Pr. 1615, 1722; Story, Eq. Pl. sec. 421. In England it is enough to show that the facts or evidence were unknown at the time of publication. Here, from the differ- ence of our practice, it must be shown that they were unknown at the hearing, since, upon application, leave would be granted to take further evidence till the hearing, in any case where the want of the evidence would justify a rehearing. In cases of application for a new trial at law, a new trial will not be granted, where the party or his counsel knew, or ought to have known, the existence of the evidence before the trial DENNETT v. DENNETT. 553 was closed. Negligence is reckoned equivalent to knowledge. The party will be taken to have known what, by the exercise of proper diligence, he ought to have known. And the same rule is held on applications for a rehearing in equity. 8 Dan. Ch. Pr. 1738, 1784; Story, Eq. Pl. secs. 418, 414. A rehearing will not be granted on account of the discovery of new evidence upon new matter, nor because the importance of the testimony has only been discovered since the decision, if the party had it in his power to ascertain its importance before the hearing, and has neglected to do so, and to obtain the testimony ; nor where the newly discovered evidence is merely cumulative upon the litigated facts already in issue; nor for the purpose of contradicting or discrediting a witness examined by the adverse party ; nor on account of any error of judgment or mistake of law by counsel. 3 Dan. Ch. Pr. 1628, &c. ; Story, Eq. Pl., secs. 413, 414. We have not deemed it necessary to consider whether any of these principles would stand in the way of a rehearing in this case, because, upon a careful examination of the evidence, we think it does not lay a foundation for a rehearing. We remark that the affidavits are generally written by counsel, and are more strongly expressed than the depositions of the same witnesses used upon the hearing. Such evidence is less satis- factory than if taken by a disinterested person. As affidavits thus taken cannot be used upon a rehearing, this mode of taking the evidence is attended with delay, expense, and labor, both for the Court and counsel. The testimony is to be twice taken and twice considered. We think, therefore, it would be a reasonable and judicious course in such cases, to apply to the Court or a judge for an order that the evidence should be taken before a commissioner, upon notice, as depositions, and that it may be used upon the rehearing. The new evidence is much of it from the same witnesses whose testimony was used at the hearing, but additional state- ments of particular facts are found, designed to give weight to the opinions, which, in the case of unprofessional witnesses, would pass for little without them. All the facts presented in the affidavits are analyzed and grouped in the able opinion of Dr. Bancroft in his affidavit ; and they seem to us to have, to a great extent, the weight he has assigned to them. His examination of the evidence, which he justly characterizes as being often vague and as presenting 554 IDIOCY, LUNACY, ETC. but a small number of facts; and, we may add, those facts not often bearing very directly upon the time of the execution of this deed, — seems to us, in the main, fair and reasonable. He infers from the symptoms of bodily disease, commencing fifteen or twenty years before Mr. Dennett’s death, and progressing steadily to a fatal termination, that he was affected by disease of the brain. He states the opinion that from such disease of that organ there is great probability that the mind:must be impaired ; and he then brings together the particular facts stated by the witnesses relative to his condition of mind, and draws from them the conclusion that Mark Dennett’s mind was seriously impaired by the disease under which he suffered. In this conclusion we can readily agree with Dr. Bancroft; and we notice but few particulars in his discussion of the evidence which are not satisfactory. He leaves out of the account the evidence relative to the intemperate habits of Mr. Dennett, which, if too slight to have produced or aggravated the symptoms of disease, yet might. have a very important bearing upon some of the facts, testified by the witnesses, indicating derangement of the mind. The strange statement Mr. Dennett is said to have made, that he was the most perfect man, &c., would not be so strange in the mouth of a drunken man. Dr. Bancroft perhaps regarded the evidence on this point as too slightly connected with the proof of that statement to deserve great consideration. Some weight is attached to the evidence that the character of Mr. Dennett changed after his first, attack of illness. From being enterprising and prosperous he became remiss, made bad bargains, did not look sharply after his interest, and managed his farm badly, and that he was childish and pleased with trifles. As such changes of character are seen to result from various causes, independent of insanity, as from general ill health, from want of success, and consequent discouragement, from domestic troubles, from intemperance, and from indolence, we should perhaps attribute less weight to this evidence than Dr. Bancroft seems to have done. But Dr. Bancroft’s conclusions do not reach the material point in this case. The powers of the mind may be impaired in vari- ous ways and in various degrees. It is not every degree of mental disease or derangement that destroys the legal capacity to dispose of property. Re Morgan, 7 Paige, 237. Such derangement may vary through an infinite number of degrees, from eccentricity or DENNETT v. DENNETT. 555 dulness to furious madness or utter imbecility. Shelf. Lun. 87. In the closing remark of Dr. Bancroft’s affidavit he expresses the opinion that Mark Dennett was in a state of dementia during the latter years of his life, produced by disease of the brain. The affi- davit contains little, either of fact or argument, tending to show a state of dementia, if we understand that term to express such com- plete prostration of the mental powers as to render the sufferer incapable of transa¢ting business; and we must therefore under- stand the term dementia, as here used, as indicating an impaired state of the mental powers, a feebleness of mind caused by disease, and not accompanied by delusion or uncontrollable impulse, without defining the degree of incapacity. Such feebleness or impaired condition it seems the whole drift of the previous parts of the deposition to show. We have not been able to discover that any line is drawn by medical experts between weakness of mind and dementia; and we trace no indication of such line drawn with any reference to the capacity to transact business. Indeed, it seems not an un- common opinion of medical men and others, that, if insanity is clearly proved to exist in any degree, the party can no longer be safely regarded as capable of transacting any business. Wh. & St. Med. Jur. 20; Waring v. Waring, 6 Moore, P. C. 349. We are unable to adopt this opinion, because we think there is abundant evidence that the species of insanity called monomania may be limited to certain subjects; as, for instance, to the health of the sufferer, without sensibly affecting the general capacity in other respects, Wh. & St. Med. Jur. sec. 42; and that the mind and memory may be greatly impaired, and yet the person be capable of disposing of property, where there has been no fraud or undue influence. In former times it was held — and that seems to be the received doctrine in some Courts quite recently — that “ non compos men- tis” is one ‘that by sickness, grief, or other accident, wholly loseth his understanding,’’ Beverley’s case, 4 Co. 123; Co. Litt. 247 a; that “the terms non compos mentis, of unsound mind, are legal terms, and import a total deprivation of sense,” 2 Mad. Ch. 727; and that to invalidate a deed it must be shown that the grantor was non compos mentis within the legal acceptation of the term; that it was not a partial but an entire loss of the under- standing ; for the common law seemed not to have drawn any discriminating line by which to determine how great must be the 556 IDIOCY, LUNACY, ETC. imbecility of mind to render a contract void, or how much intel- lect must remain to uphold it. Jackson v. King, 4 Cow. 216; Blanchard v. Nestle, 8 Denio, 37. This view of the law we do not understand to prevail here, but the truth is held to lie between these extremes. Every person is to be deemed of unsound mind who has lost his memory and understanding, by old age, sickness, or other accident, so as to render him incapable of transacting his business and of manag- ing his property. Re Baker, 2 Johns. Ch. 232. See 1 Paige, 173; 21 Vt. 170. When it appears that a grantor had not strength of mind and reason to understand the nature and con- sequences of his act in making a deed, it may be avoided on the ground of insanity. Davies v. Grindley, Shelf. Lun. 266. A man, by the bare execution of an instrument, does not make it his deed, if at the time he was so weak in mind as to be incapable of understanding it if explained to him. Mannin v. Ball, 1 Sm. & Batt. 185; s. c. 1 Dow, P. C. n. 8. 881; 3 Bligh, n.s.1. All that the law requires to make a deed effectual is, that a man should have possession of his reason, so as to know the effect of the act he is about to perform, and to be capable of carrying that act into effect. Creagh v. Blood, 2 Jones & Lat. 509. The question, then, in all cases where incapacity to contract, from defect of mind, is alleged, is not whether a person’s mind is im- paired, nor if he is afflicted by any form of insanity ; but whether the powers of his mind have been so far affected by his disease as to render him incapable of transacting business like that in question. An impaired condition of the mental powers, such as may be inferred by the medical expert, may constitute mere weakness of mind, or a complete prostration of the faculties. Wh. & St. Med. Jur. sec. 74. In the last case there may be no delusive impression, nor false assumption of fact, nor confused hurry of mind, nor uncontrollable impulses, such as characterize ordinary insanity; but the mind is inert, the memory is unable to recall, and the mind to retain in one view, all the facts upon which the judgment is to be formed, for so long a time as may be required for their due consideration. Converse v. Converse, 21 Vt. 168. Such weakness may be the sudden result of disease, as in cases of paralysis, but is generally more or less gradual in its approach, scarcely perceptible at first, and becoming more apparent with the lapse of time and increasing disease. No marked line can be drawn at which weakness of mind DENNETT v. DENNETT. 557 becomes so great that the party ceases to be capable of binding himself by his contract or conveyance. The judicial investiga- tions of insanity are therefore for the most part confined to the inquiry, whether such a state of insanity exists as actually dis- qualifies the person from conducting himself consistently with the personal safety of himself and others, or from managing and disposing of his own affairs and property. Weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions. If a man be legally compos»mentis, he is the disposer of his own property, and his will stands for the reason of his actions. Osmond »v. Fitzroy, 8 P. W. 129; Shelf. Lun. 87. But it is held that, though weakness of understanding is insufficient to avoid a deed, it furnishes ground of suspicion of improper influence, and there- fore, wherever fraud can be inferred from the circumstances of the transaction, equity will interpose to relieve against it. Jackson v. King, 4 Cow. 216. The doubtful and uncertain point at which the disposing mind disappears, and where incapacity begins, can be ascertained only by an examination of the particular circumstances of each case, to be duly weighed and considered by the Court or jury; and in determining the quéstion the common sense and good judgment of the tribunal must be mainly relied on. As the law presumes every man to be sane (Pettes v. Bing- ham, 10 N. H. 514), the burden of proof is on the party who asserts the want of capacity; and we think the evidence, giving all due weight to the medical testimony, falls short of showing incapacity. It appears that Mr. Dennett was the owner of a farm and the head of a family. During the whole time embraced in the evidence till the deed in question, there is nothing to show that in the intervals of the attacks of his disease, he did not trans- act all the business naturally to be done by one so situated. There is no evidence that his business was done by others, or that he had any difficulty in transacting his business because of any sus- picion of insanity or incapacity ; and, with the exception of what is said in regard to his sales of timber, there is no evidence that his bargains are those of an insane, foolish, or broken-down man. When we look at the evidence produced, in comparison with what must necessarily exist if the defendant’s positions are correct, we 558 IDIOCY, LUNACY, ETC. can hardly doubt that, though Mr. Dennett’s powers were impaired, he had still capacity for the transaction of ordinary business. The evidence tending to raise a suspicion of fraud or imposition upon a man of enfeebled intellect, which is a fact to be proved by him who asserts it, is quite too slight to justify a rehearing. That the degree of unsoundness required to incapacitate a person from contracting is correctly stated to be, “‘ such a condition of insanity or idiocy as from its character or in- tensity disables him from understand- ing the nature and effect of his acts, and therefore disqualifies him from transacting business and managing his property,” see also Young v. Stevens, 48 N. H. 135; Bond v. Bond, 7 Allen, 1; Somers v. Pumphrey, 24 Ind. 231 ; ‘Hovey v. Chase, 52 Me. 304; Hovey v. Hobson, 55 Me. 256; Darby v. Hay- ford, 56 Me. 246; Coleman v. Frazer, 3 Bush (Ky.), 300; Carpenter v. Car- penter, 8 Bush (Ky.), 283; Crowther v. Rowlandson, 27 Cal. 381; Miller v. Craig, 86 Ill. 110; Wiley v. Ewalt, 66 Ill.-26; Baldwin v. Dunton, 40 Ill. 188 ; Clearwater v. Kimler, 43 Ill. 272; Sheldon v. Harding, 44 Ill. 68; Aiman v. Stout, 42 Penn. St. 123; Noel v. Karper, 53 Penn. St. 97; Lozear v. Shields, 23 N. J. Eq. 509; Dicken v. Johnson, 7 Geo. 491; Tolson v. Gar- ner, 15 Mo. 498; Burnham ». Mitchell, 34 Wisc. 136 ; 1 Pars. on Cont. *383 ; Mete. on Cont. 79; 2 Kent’s Com. 452. See also the cases of Stewart v. Lispen- ard, 26-Wend. 255, and Blanchard v. Nestle, 3 Denio, 37, disapproved in Del- afield v. Parish, 25 N. Y. 27, 28; 1 Redf. on Wills, 124, 125, 130, notes. See, however, Maddox v, Simmons, 31 Geo. 527; In re Vanauken, 10 N. J. L, 195. And it seems well settled that, in the absence of fraud, imposition, or un- due influence, mere weakness or feeble- ness of understanding short of this, is Petition dismissed. insufficient. See Miller v. Craig, 36 Ill. 110; Simonton v. Bacon, 49 Miss. 582; Aiman v. Stout, 42 Penn. St. 123; Henderson v. McGregor, 30 Wisc. 80; Cain v. Warford; 33 Md. 23; Cadwal- lader v. West, 48 Mo. 483; Killian v. Badgett, 27 Ark. 166; Maddox v. Sim- mons, 31 Geo. 528; Farnam v. Brooks, 9 Pick. 212; Wilson v. Oldham, 12 B. Monr. 60; Osmond v. Fitzroy, 3 P. Wms. 130. See 1 Story’s Eq. Jur. § 235. One who seeks to set aside a con- tract on the ground of insanity alone, general or partial, must show that it was the offspring of mental disease. See Wray v. Wray, 32 Ind. 126; Lozear v. Shields, 23 N. J. Eq. 509; 1 Redf. on Wills, 85; Staples v. Wel- lington, 58 Me. 453. Thus monomania, in no way con- nected with the subject of a contract, will not invalidate it. Boyce v. Smith, 9 Gratt. 704; 1 Redf. on Wills, 85. See also Dew v. Clark, 1 Add. 279; 3 Add. 79 (post), where this’ subject in its relation to wills is fully discussed. Lemon v. Jenkins, 48 Geo. 313. The unsoundness of mind required to vitiate a contract must also exist at the time of making such contract. See Shelford on Lun. 50; Crouse v. Hol- man, 19 Ind. 39; Carpenter v. Car- penter, 8 Bush (Ky.), 283; Staples v. Wellington, 58 Me. 453; Stewart v. Reddit, 3 Md. 815 and the cases cited next above. See, however, as to the presumption of the continuance of insanity when once shown to exist, Hall v. Warren (post). ALLIS v. BILLINGS, 559 ALLIS v. BILLINGS. (6 Metc. 415. Supreme Judicial Court of Massactiusetts, September Term, 1848.) Deed of a person non compos mentis voidable only and not void. — A deed con- veying land, executed by a person when non compos mentis, is voidable only and not void, and may therefore be ratified by him when he is of sane mind, And this doctrine applies as well to unrecorded deeds as to feoffments and to deeds recorded. Writ of entry to recover seven acres of land in Hatfield. At the trial, the tenant gave in evidence a deed from the demandant, dated March 25th, 1835, conveying the demanded premises, and several other parcels of land, being the farm and outlands belong- ing to the demandant, whose previous title, by devise from his father, was admitted. The consideration of said deed was a note, given to the demandant by the tenant, and a surety, for $4,600, payable in six years, with yearly interest. On this note were sundry indorsements, reducing it to about $3,000. Some of these indorsements were in the handwriting of the tenant, and some in that of the demandant. The demandant did not offer to return the note or the money received. The tenant sold the said farm, and part of said outlands, for a sum somewhat exceeding $5,000; and a writ of entry was com- menced against his grantee, by the demandant, to recover the same; which writ was returnable at aterm subsequent to that at which the present action was tried. It appeared that the tenant went into possession under said deed, and was in possession of the demanded premises when this action was commenced, claiming title thereto under said deed. : The demandant, to avoid the effect of the said conveyance to the tenant, offered to prove that he was insane when it was executed by him, and also that it was obtained by undue influence. The evidence which he introduced tended to show that he had been insane and sane at different times for a num- ber of years prior to the making of said conveyance; and, also, since. 560 IDIOCY, LUNACY, ETC. The tenant requested the judge who tried the cause, to instruct the jury, “that if the demandant was subject only to temporary turns of insanity, and insane when he made the deed, yet if, after he became sane and when sane, he did acts in affirmation of the contract, as by receiving payments on the note, and the like, he could not afterwards maintain an action to avoid the deed on the ground of insanity; that, as between the present parties, this action could not be maintained for one of several parcels described in the deed, and remaining in the possession of the tenant; and that the demandant, to maintain his action, should return the note and the money received.” The judge instructed the jury, that, if they were satisfied that the demandant was not of sane mind when he made the deed, it was void absolutely, and not voidable merely, and that the receipt of money on the note would not bar an action, though the demandant was sane at the time he received it; that it was not necessary for him to return the note or money received, under the circumstances of this suit; and that the demandant was not obliged to demand in this action all the parcels in the possession of the tenant and unsold. The jury found that the deed was made when the demandant was insane, and they did not consider the allegation of fraud. New trial to be granted, if the ruling of the judge was incor- rect; otherwise, judgment to be rendered for the demandant, on the verdict. Huntington, for the tenant. Wells and Forbes, for the demandant. Dewey, J. The question raised in the present case is, whether the deed of one who is insane, at the time of the execution thereof, is void absolutely, or merely voidable. The term “ void,” as applicable to conveyances or other agree- ments, has not at all times been used with technical precision, nor restricted to its peculiar and limited sense as contradistin- guished from “ voidable,” it being frequently introduced, even by legal writers and jurists, where the purpose is nothing further than to indicate that a contract was invalid, and not binding in law. But the distinction between the terms “ void” and “ void- able,” in their application to contracts, is often one of great practical importance; and whenever entire technical accuracy is required, the term “void” can only be properly applied to ALLIS v, BILLINGS. 561 those contracts that are of no effect whatsoever; such as are a mere nullity, and incapable of confirmation or ratification. This question, then, arises: Is the deed of a person non compos mentis of such a character that it is incapable of confirmation? This point is not now for the first time raised, but has been the subject of comment both by elementary writers and in judicial opinions. Mr. Justice BLacKsTong, in his Commentaries, vol. ii. p- 291, states the doctrine thus: “Idiots, and persons of non- sane memory, infants and persons under duress, are not totally disabled to convey or purchase, but sub modo only; for their conveyances and purchases are voidable, but not actually void.” Chancellor Kent says: “‘ By the common law, a deed made by a person non compos mentis, is voidable only, and not void.” 2 Kent, Com. 4th ed. 451. “In Wait v. Maxwell, 5 Pick. 217, this Court adopted the same principle, and directly ruled that the deed of a non compos, not under guardianship, was not void, ‘but voidable. Such a deed conveys a seisin to the grantee, and the deed, to that extent, is valid, until, by entry or action, the same is avoided. Mitchell v. Kingman, 5 Pick. 481, is to the like effect. In Seaver v. Phelps, 11 Pick. 805, the contracts of insane persons are noticed as contracts not absolutely void, but voidable. It may seem somewhat absurd to hold that a deed should have any effect when wanting in one of the essential elements of a valid contract; viz., that of parties capable of giving an assent to such a contract. But this objection as strongly applies to cases of deeds executed by infants, who are alike wanting in capacity to make a binding contract. Yet this principle of giving so much effect to the contract as removes it beyond that of a mere nullity, and renders it to some present purposes effectual, and susceptible of complete future ratification, is well settled and understood as to infants who enter into contracts; and it will be found that there is a common principle on this subject, alike applicable to the ina- bility of a contracting party, arising from lunacy or infancy. The civil and the common law writers group together idiots, mad- men, and infants, as parties incapable of contracting for want of a rational and deliberative consenting mind. 1 Story on Kq. § 223, and authorities there cited. , It is true that the rule of the common law, as held at one time, seemed to sanction, in one particular, a most unwarrantable dis- 86 562 IDIOCY, LUNACY, ETC. tinction between the cases of deeds made by persons non compos, and those made by infants; holding that the former could not be avoided by the party, upon the ground that no man of full age should be admitted to stultify himself, although it allowed. privies in’ blood, or privies in representation after the death. of the non compos, to avoid the deed, on the ground of incapacity in the grantor. This distinction has not been adopted by our Courts. On the contrary, we hold that such conveyance by one non com- pos mentis may be avoided by himself, as in the case of an infant grantor. This principle was directly recognized in Mitchell ». Kingman, 5 Pick. 431. Indeed, the English rule has, in modern times, been often questioned in England; and in the Courts of our sister States, it has received little if any sanction. 1 Story on Eq. § 225, and cases there cited. * It was urged by the demandant’s counsel that the doctrine, that the deed of a non compos person was voidable only and not void, was to be limited to feoffments, or cases where there is a livery of seisin or what is equivalent, and would not embrace a conveyance by an unrecorded deed. But we do not think that such a distinction can be maintained. As between the grantor and grantee, such unrecorded deed is good and effectual, by force of our statute; and the effect of such a conveyance would be to vest the title of the grantor in the grantee immediately upon the execution of the deed, and before the same is recorded. Marshall v. Fisk, 6 Mass. 31. A deed made in proper form, and duly acknowledged and recorded, is, in this commonwealth, equivalent to a feoffment with livery of seisin. Somes v. Brewer, 2 Pick. 197. Without the registry, where the delivery of the deed is accompanied by the surrender of the possession of the conveyed premises to the grantee, the effect would be the same, as to the conveyance by a non compos, as would result from a feoffment made by him. A deed of bargain and sale, it is said, places the grantee upon the footing of a feoffment, as it passes the estate by the delivery of the hand; such grants or deeds as take effect by delivery of the hand being voidable only. Somes v. Brewer, 2 Pick. 197; Zouch v. Parsons, 3 Burr. 1804; [ante, p- 3]. We come, therefore, to the result that the deeds of in- fants and insane persons are alike voidable, but neither are ab- solutely void. Upon the trial of the present action, the plaintiff put his case ALLIS ¥, BILLINGS. 563 upon two distinct grounds: 1st. That he was insane at the time he executed the deed under which the tenant derives his title ; 2d. That the deed was obtained by undue influence and fraud on the part of the tenant. Upon both these points the plaintiff introduced evidence. What was the extent of the evidence’ upon the latter ground, and what would have been the finding of the jury upon that point, we have no means of judging. This was a distinct and independent ground, and one which, if found in favor of the demandant, might have been decisive of the case, but which, in the final disposition of the cause, was not con- sidered or passed upon by the jury. All the evidence, therefore, bearing upon this point, is now to be treated as if never offered, and the sole inquiry for our con- sideration is, whether the instructions of the Court were such, in matter of law, that the verdict may be maintained, taken as it was upon the first ground solely. The presiding judge ruled, as a matter of law, that a deed of an insane person was absolutely void. Under this ruling, all that was required of the demandant to entitle himself to a verdict in his favor, was to show a tem- porary insanity at the time of the execution of the deed. No matter what might have occurred subsequently, or how soon afterwards the demandant might have been restored to a sound mind; no matter what acts of confirmation may have been done by him, or however fully he may havé adopted and ratified the transaction, by the receipt of the money or other valuable con- sideration paid for the land; still the legal title to the land would be in him. This was the necessary result of the doctrine, that the deed of a non compos was absolutely void, while, if it had been held only voidable, these subsequent acts of the party might ma- terially affect the verdict of the jury. But adopting, as we do, the principle that the deed of an insane person is only voidable, this, while it gives the insane grantor full power and authority to avoid his deed, and thus furnishes full protection to him against all acts injurious to his interests, done while he was non compos, also en- titles the other party to set up the deed, if he can show a ratifica- tion or adoption of it by the grantor, after he is restored to a sound mind. If the grantor, when thus capable of acting, and with full knowledge of his previous acts, and of the nature and extent of them, will deliberately adopt and ratify them; if he will knowingly, and in the exercise of his proper faculties, take 564 IDIOCY, LUNACY, ETC. the benefit of a contract made while he was insane, — it is com- petent for him to do so. But the consequence will be, to give force, effect, and legal validity to his contract, which was before voidable. In the present case, therefore, upon the point first relied upon in the defence, viz., that the demandant was insane when he ex- ecuted the deed, the jury should have been instructed that this fact, if established, rendered the deed voidable, and that it was competent for the demandant to avoid it on that ground, if not estopped by his subsequent acts, done whilst in his right mind ; but that a voidable deed was capable of confirmation ; and that, | if the grantor, in his lucid intervals, or after a general restoration to sanity, being then of sound mind, and well knowing and un- derstanding the nature of the contract, ratified it, adopted it as a valid contract, and participated in the benefits of it by receiving from the purchaser the purchase-money due on the contract, this would give effect to the deed, and render the same valid in the hands of the grantee, and would thus become effectual to pass the lands, and divest the title of the grantor. Such instructions would have presented the question in issue in a different aspect to the jury, and might have led to a different result upon the only point upon which they passed. Verdict set aside, and a new trial granted. ‘See the following cases and notes. THompson v. Leccu.} (8 Salk. 300, s.c. 2 Salk. 427, 565, 576, 618, 675: 3 Mod. 301; 12 Mod. 173; Holt, 857, 628; Comb. 438, 468; Freem. 508; 1 Ld. Raym. 313; Shower’s Cases in Parl. 150; Carth. 435. Court of King’s Bench, Hil. Term, 1698.) Feoffment with Livery by non compos, voidable ; Deed of Surrender, &c., void. — Where the acts of an idiot are void, and where voidable. 1 The report of this case here given is that found in 3d Salk. 800, commencing at the bottom of the page. The defendants’ name is variously spelled “ Leech” and “Leach ” in the various reports. THOMPSON ¥v. LEECH. 565 Stwon LeecH being tenant for life; remainder in tail to his first son, remainder to Sir Simon in tail, surrendered to Sir Simon, and afterwards had issue a son; and it was found that the father was non compos when he made this surrender. It was insisted that this surrender was not void, but only voidable ; for as to himself he cannot avoid it by entry or by pleading, or by the writ dum non fuit compos, which writ, being ‘to avoid his own alienation, supposes that he demisit, and so doth the writ de idiota inquirend., and the law needs not prescribe methods to avoid his acts, if they are void in themselves. But it was answered and resolved per Hott, C. J. That the deed of a person non compos is void, that if he grants a rent, and the grantee distrains for the arrears, he may bring trespass, that his letter of attorney or his bond are void: ‘tis true, the books say generally, that his deeds or bonds are not void, but that must be understood, as that the obligor cannot plead non est factum, because it appears to be a deed fairly executed, but *tis of no force, because of this latent defect or incapacity, which the law requires should be -pleaded, and put in issue specially, and so are all his acts in pais except his feoffments, and livery and seisin, and those are only voidable; the reason is, because of the respect the law gives to a feoffment upon the account of its solemnity in the transmutation of a freehold; and the writ de non compos mentis, which says demisit, that must be under- stood of a feoffment or a fine, those being the ancient and the only conveyances at that time: an infant runs paralleled with an idiot in all cases but this; viz., that an idiot is not admitted to disable or stultify himself! And lastly, his deeds are void, because the law hath appointed no act to be done for the avoiding them ; therefore this deed of surrender being void, the particular estate for life was not determined by it, and by consequence the eontingent remainder not destroyed. The Attorney-General exhibited a bill in equity against the defendant,? to make him accompt to a lunatic, and to avoid a bargain made by him, and this was held good, tho’ the lunatic was no party, for though ’tis generally true, that he ought to be made a party, yet not in this case, because it would be to stultify himself. 1 This old rule is now exploded. See Mitchell v. Kingman (ante, p. 522), and notes. 21 Ch. 112, 153. ; 566 IDIOCY, LUNACY, ETC. But where a bill is brought in the nature of an information by the Attorney-General in behalf of a lunatic, there he ought to be made a party, if ‘tis not directly to stultify himself, as in the case of an infant, for he may recover his understanding, and then he is to have his estate at his own disposal. Vide Fearne on Contingent Remainders. See the following case and notes. In re Estate oF Saran DESILVER. (5 Rawle, 111. Supreme Court of Pennsylvania, February 9, 1835.) Feoffment and Livery of Lunatic voidable; Deed of Bargain and Sale void. — The feoffment and livery of a lunatic or madman are not void, but voidable ; and, as they work a divestiture of his seisin, they preclude the possibility of an escheat by his death, because seisin must be found at his death, as well as fail- ure of heirs, devisees, or known kindred; and though escheats take effect in Pennsylvania, not on principles of tenure, but by force of our statutes, yet these statutes require the decedent to have been seised at his death. Buta deed of bargain and sale, though, by the express words of the statute, it has the force and effect of a feoffment and livery for the purpose ‘“ of giving pos- session and seisin, and making good the title and assurance,’’ is not equivalent in all respects to a feoffment and livery, and if executed by a lunatic or mad- man, it is void. . Therefore, on the trial of a traverse of an inquisition of escheat, evidence is admissible on the part of the commonwealth to show the insanity of the decedent at the time he executed a deed of bargain and sale. Tuis case came before the Court on a writ of error to the Court of Common Pleas of Philadelphia county, in which it was a traverse of an inquisition of escheat, of the estate of Sarah Desilver, deceased, taken on the 12th of November, 1829, and filed with the proceedings of the inquest on the 13th of November, 1829. The traverse was filed by the Rev. Thomas J. Kitts, and the trustees of the Second Baptist Church and congregation in Philadelphia. The inquest found that Sarah Desilver died on or about the 22d of June, 1828, intestate, without heirs or any known kindred, and that she was at the time of her death seised and possessed of certain real estate, in the county of Philadelphia, particularly IN RE ESTATE OF SARAH DESILVER. 567 described in the inquisition, and that Thomas J. Kitts, of the said county, was the person in whose hands or possession the rea] estate then was. Various pleadings took place in the Court of Common Pleas, but by writing filed, dated the 6th of March, 1833, it was agreed that the pleadings should be withdrawn ; and that every material fact found in the inquisition should be understood to be traversed, and the case tried as if a formal issue had been joined according to the agreement. On the trial, after the counsel of the traversers had given in evidence the death of Sarah Desilver, a paper writing, purporting to be the last will and testament of the said Sarah Desilver, dated the 8th of December, 1824, and proved the 26th of July, 1828, devising part of the property mentioned in the inquisition to “ the trustees of the Second Baptist Church and congregation in the city of Philadelphia, under the ministry of the Rev. Mr. Kitts, and their successors in office for ever, for the use of said church, and the residue thereof to Thomas J. Kitts, in fee-simple ;”’ and an instrument, purporting to be a deed, dated the 24th of August, 1825, acknowledged the 30th of August, 1825, and recorded the 28th of October, 1825, from Sarah Desilver to Thomas J. Kitts, conveying the said estate to Kitts in fee-simple, provided that the rents, issues, and profits of the whole estate should, after the payment of ground rents, taxes, and the neces- sary repairs, be by him, his heirs, administrators, and assigns, well and truly applied to the use of the said Sarah Desilver during her natural life, and provided also that, immediately upon her decease, he, his heirs or assigns, should make or cause to be made and executed unto the trustees of the Second Baptist Church, &c., a lawful deed, for a certain part of the property, the same that by the will was given to the church, — the counsel for the commonwealth offered to prove that “ Sarah Desilver was non compos mentis before, at, and after the alleged signing, sealing, and delivery of the said last will and testament,” and. that she was “‘ non compos mentis before, at, and after the alleged signing and execution of the deed as aforesaid, and that the said Sarah Desilver continued to be non compos mentis as afore- said, unto and until the time of her death, as aforesaid.” The evidence thus offered, being objected to by the counsel of the 568 IDIOCY, LUNACY, ETC. traversers, was rejected by the Court. The counsel of the com- monwealth ‘further offered in evidence the fact, that the said ‘Thomas J. Kitts, for a long time before and until the death of the said Sarah Desilver, acted as, and was her sole agent, and admitted her to be in the possession of the real estate in the said inquisition mentioned and set forth.” This evidence was also objected to on the part of the traversers, and rejected by the Court, who sealed a bill of exceptions on both points. The jury returned a verdict in favor of the traversers, where- upon a writ of error was sued out, on which the record was brought into this Court, where errors were assigned in the rejection by the Court below of the evidence offered on the part of the commonwealth, as above stated. Rush, H. J. Williams, and Dallas, for the Commonwealth. ‘Grinnell and P. A. Browne, for the traversers. The opinion of the Court was delivered by Gisson, C. J. The authorities distinctly show that the feoff- ment and livery of a lunatic or madman are not void, but void- able ; and that as they work a divestiture of his seisin, they preclude the possibility of an escheat by his death, because seisin must be found by the inquest, as well as a failure of heirs, devisees, or known kindred. His feoffee holds discharged, because an avoidance of the act would not restore the seisin of the lunatic, at the time of his death, which is essential to an escheat of his estate to the immediate lord of the fee. It is true that our property is allodial, and that escheats with us take effect, not upon principles of tenure, but by force of our statutes to avoid the uncertainty and confusion inseparable from the recognition of a title founded in priority of occupancy; yet these statutes equally, and in terms, require the decedent to have been seised at his death. So far the argument made for the defendant in error seems to be unassailable. The defect in it is, that it fails to prove the deed of bargain and sale by which he holds to be equivalent in all respects to a feoffment. It is not a feoffment in form or in fact, nor has it all the qualities or consequences of one, as was deter- mined in M’Kee’s Lessee v. Pfout,} where it was not suffered to work a forfeiture like the feoffment of a tenant.for life. But 1 8 Dallas, 486. See also Rogers v. Walker, 6 Penn. St. 874. IN RE ESTATE OF SARAH DESILVER. 569 granting it, as it undoubtedly has by the express words of the statute, the force and effect of a feoffment and livery, for the purpose of “giving possession and seisin, and making good the title and assurances,”’ yet, in order to do so, it must be a deed ; for the legislature certainly never intended to impart the prescribed effect to an act im pais which should at the same time be a nullity. At common law the feoffment of a madman, as shown by the argument, is only voidable, but his deed is abso- lutely void ; so that, unless we can infer a legislative design to alter the common law in the latter particular, we must hold that his conveyance by bargain and sale is void, and unattended with the consequences attempted to be attributed to it. This.design could be inferred, but from the clause which gives a deed of bargain and sale the force and effect of a feoffment in ‘ making good the title and assurance.” But, in that respect, it must in M’Kee’s Lessee v. Pfout have created a tortious fee in the grantee, and produced a forfeiture of the grantor’s life estate; a conse- quence which was denied to it. The obvious purpose of the pro- vision was to dispense with actual investiture, without imparting to its substitute the feudal and almost inconceivable effect of displacing lawful estates and turning them to a mere right; or giving to it any quality or consequence beyond the one specified. The object was to give without the aid of feudal ceremonies the legal seisin for lawful purposes. In treating the conveyance, therefore, as an actual feoffment, which transferred the seisin without regard to the sanity of the grantor, the judge who tried the cause gave it an effect never intended to be imparted to it. The capacity of the Common- wealth to contest its validity, was settled in Crawford v. The Commonwealth, 1 Watts, 484, where she was adjudged to be the ultima heres; and, succeeding as such to the rights and remedies of the heir and next of kin, she may, on the strictest principles of the common law, be let in to show the grantor’s insanity. Judgment reversed, and a venire de novo awarded. It may probably be regarded as set- void; and hence that it passes a seisin, tled by the weight of authority in the and is capable of being ratified by the United States, that the deed of anin- grantor after becoming sane again. sane person (at least before office Besides the principal case of Allis v. found) is voidable, and not absolutely Billings (ante), see Wait v. Maxwell, 5 570 Pick. 217; Arnold v. Richmond Iron Works, 1 Gray, 434 ; Gibson v. Soper, 6 Gray, 279; Crouse ». Holman, 19 Ind. 30; Somers v. Pumphrey, 24 Ind. 234 ; Hovey v. Hobson, 53 Me. 453; Breckenridge v. Ormsby, 1 J. J. Marsh. 245; Ingraham v. Baldwin, 9 N. Y. 45; Jackson v. Gumaer, 2 Cow. 560; Key v. Davis, 1 Md. 32 ; 2 Kent’s Com. *451; 1 Pars. on Cont. *364; Mete. on Cont. 80. There is, however, some considera- ble conflict upon the question; and, were not the weight of opposing au- thority very considerable, the views so ably advocated by Cots, J., in his dis- senting opinion in Allen v. Berryhill, _ 27 Towa, 557, and in Dexter v. Hall, 15 Wall. 9 (infra, in note), would be entitled to great consideration before IDIOCY, LUNACY, ETC. arriving at a contrary conclusion. It seems, however, to be conceded by all the authorities, that a feoffment with livery of seisin, made by an insane person propriis manibus, is voidable only, and not void. See Bac. Abr. Idiots, F., and authorities cited (infra). And a distinction is made by some cases (which prevails in England and Pennsylvania) between feoffmenfs and deeds of bargain and sale, surrenders, grants, &c., the latter being déclared to be absolutely void. This distinction is made in the principal cases of Thompson v. Leach and Estate of Desilver (ante); and is approved in Dexter v. Hall, 15 Wall. 9, so much of which as relates to this question is given below in note.' See also Bac. Abr. Idiots, F.; Shelf. on Lun. 255 et 1 Mr. Justice Strone delivered the opinion of the Court. The prominent question in this case is, whether a power of attorney executed by a lunatic is void, or whether it is only voidable. The Circuit Court instructed the jury that a lunatic or insane person, being of unsound mind, was incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a power of attorney executed by an insane person, or one of unsound mind, was absolutely void. To this instruction the defendant below excepted, and he has now assigned it for error. Looking at the subject in the light of reason, it is difficult to perceive how one incapable of understanding and of acting in the ordinary affairs of life, can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions. The fundamental idea of a contract is that it requires the assent of two minds. But a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind; and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discriminating between that which is right and that which is wrong. The government does not hold. him responsible for acts injurious to itself. Why, then, should one who has obtained from him that which purports to be a contract, be permitted to hold him bound by its provisions, even until he may choose to avoid it? If this may be, effi- cacy is given to a form to which there has been no mental assent. A contract is made without any agreement of minds. And, as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have, had he been in full possession of ordinary understanding. While he continues insane he cannot avoid it; and if, therefore, it is operative until avoided, the law affords a lunatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the pro- tection of Courts of law as well as Courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an excep- tion). Unlike a lunatic, he is not destitute of reason. He has mind, but it is imma- IN RE ESTATE OF SARAH DESILVER, 571 seq. ; and dissenting opinion of Corz, and the question argued with great J., in Allen v. Berryhill, 27 Iowa, 557, ability. where the cases are very fully collected Some of the cases simply declare ture, insufficient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. This for him is a sufficient protection. But, as a lunatic cannot avoid a contract for want of mental capacity, he has no protection if his contract is only voidable. It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void. In Bev- erley’s case [4 Reports, 1234; given at length in note to Mitchell v. Kingman], ante, p. 526, which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant which any man non compos mentis makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, ‘“‘ because when he recovers his memory he cannot know what he did when he was non compos mentis.”’ Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Beverley’s case, among which were these: that the disability of a lunatic is personal, extending only to the party himself, except that it extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail; but that privies in blood, as heirs, or privies in representation, as executors or administrators, might show the disability of the ances- tor or testator or intestate. It was also resolved that acts done in a court of record were not avoidable even in equity. Lord Coxe, in commenting on the case, remarked that, ‘as to others there is a great difference between an estate made in person and by attorney ; for if an idiot or non compos mentis makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or, if he dies without heir, the land shall not escheat; . . . but if the feoffment is made by letter of attorney, although the feoffor shall never avoid it, yet after his death, as to all others, in judgment of law, the estate is void, and therefore, in such case, if his heir is within age, he shall be in ward; or, if he dies without heir, the land shall escheat.” Such also is the rule as stated in Fitzherbert’s Natura Brevium, [202 c]. This is plainly a recognition of the principle that the letter of attorney of an idiot or lunatic is void; though he may not be permitted himself to assert its nullity, his heir and all others may. The doctrine is also asserted that, as against the heirs of a lunatic, his deed is invalid; and this, we think, has been steadily maintained in England. In Thompson v. Leach, reported in Carthew [p. 485], and in Comberbach [p- 469], a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seisin, and his deed of bargain and sale, his surrender, or grant. The former was held to be voidable only, because of the solemnity of the livery, while the latter were held to be void. The case was‘ejectment brought by a lunatic’s heirs, and the con- trolling question was whether his deed was only voidable, or whether it was abso- lutely void. The grantor had a life-estale upon which were dependent contingent remainders, and he made a deed of surrender. If his deed was at any time effective before the contingency happened, it merged the tenancy for life, and destroyed the contingent remainders; and, though the deed might afterwards be avoided by any means in law, yet the contingent remainders, being once extinct, could not be revived by any matter ex post facto. It was necessary, therefore, to determine whether the deed was a nullity or whether it was good until avoided. The Court resolved that the deed was void, ab initio, because of the grantor’s lunacy. It was said that “there 572 IDIOCY, LUNACY, ETC. such deeds absolutely void, without re- (Conf. R.) 501, where the distinction ferring to the distinction above stated. between fines and recoveries and See Millison v. Nicholson, Cam. & N. deeds is made, and the deed of an is a difference between a feotfment and livery made propriis manibus of an infant, and the bare execution of a deed by sealing and delivery thereof, as in cases of grants, surrenders, releases, &c., which have their strength only by executing them, and in which the formality of livery of seisin is not'so much regarded in the law, and, there- fore, the feoffment is not void, but voidable [see Zouch v. Parsons, (ante, p. 3) ]: but surrenders, grants, &c., of an idiot are void ab initio.” The case is a leading one, and it is in some respects more fully reported in Salkeld [vol. ifi. p. 300; see also 2 Vent. 198]. There it appears not only that the distinction mentioned is recognized, but that Hott, C..J., declared the deed of a person non compos mentis to be void; that if he grants a rent and the grantee distrains for arrears, he may bring trespass; that his letter of attorney or his bond are void, because, as he stated, the law had appointed no act to be done for avoiding them. Thompson v. Leach has never been disturbed, and, so far as we know, has never been doubted. It was followed by the case of Yates v. Boen, in Strange [vol. ii. p. 1104], which was an action of debt upon articles. The defendant pleaded non est Jfactum, and offered to give lunacy in evidence. Upon the authority of Thompson v. Leach and Smith ». Carr, decided in 1728, the evidence was received. The doctrine of Thompson v. Leach was asserted also in Ball v. Mannin {1 Dow. & Clark, 380], decided in the House of Lords in 1829. In that case the sole question presented was, by agreement of counsel, whether the deed of a person non compos mentis was invalid at law. In the inferior Court the judge had charged the jury that “to con- stitute such unsoundness of mind as should avoid a deed at law, the person exe- cuting such deed must be incapable of understanding and acting in the ordinary affairs of life,” and refused to charge that the unsoundness of mind must amount to idiocy. The ruling was sustained by the Court of King’s Bench in Ireland, and, on writ of error, by the Exchequer Chamber. The case was then removed to the House of Lords, and the judgment was affirmed. It is, therefore, the settled law of England, and it has been since the decision in Thompson v. Leach, that while the feoffment of an idiot or lunatic is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7 and 8 Vict. c. 76, § 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant. Sir WitL1Am BiacxsTonz, it is true, appears to have overlooked the distinction made in Thompson v. Leach; and in his Commentaries [book 2, p. 291], while admit- ting that the law was otherwise prior to the reign of Henry VI., asserted the doctrine that the conveyances of idiots and persons of non-sane memory, as well as of infants and persons under duress, are voidable but not actually void. But Sir Epwarp Suc- DEN [1 Sugden on Powers, 179; see also Shelford on Lunatics, 257-259] notices this statement with disapproval. His remarks are as follows: ‘‘ When Beverley’s case was decided, it was holden that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice BLack- 8TONE, following the old rule, has laid down that deeds of lunatics are avoidable only, and not actually void. But in Thompson v. Leach the distinction was solemnly estab- lished that a feoffinent with livery of seisin of a lunatic, because of the solemnity of the livery, was voidable only ; but that a bargain and sale or surrender, &c., was actually. void. This, therefore, was the ground of decision in Yates v. Boen. When IN RE ESTATE OF SARAH DESILVER. idiot held absolutely void. Brown v. Freed, 43 Ind. 258; Van Deusen v. Sweet, 51 N. Y. 378, where the cases on the subject are quite fully collected in the briefs of counsel. See also Leg- gate v. Clark, 111 Mass. 308; dissent- ing opinion of Coin, J., in Allen v. Berryhill, 27 Iowa, 504. As to what will amount to a ratifica- tion of such voidable deed, the rule, it is apprehended, is, or should be, the same as in the analogous case of in- 578 fancy. See Gibson v. Soper, 6 Gray, 283; Arnold v. Richmond Iron Works, 1 Gray, 434. See (ante), p. 157 et seq. Such ratification must be the intelli- gent act of the grantor. Bond v. Bond, 7 Allen, 1. And though, at the time of such ratification, he must be in possession of and comprehend all the material facts involved in the case ; still it is not necessary, in order to amount to a ratification, that he should also know that he has the power of the Chief Justice remembered that an innocent conveyance, or a deed, by a lunatic, was merely void, he instantly said, that non est factum might be pleaded to it, and the special matter be given in evidence.” In this country there has been inconsistency of decision. Some Courts have fol- lowed Mr. Justice Buackstone, and Beverley’s case, without noticing the distinction made in Leach v. Thompson, Yates v. Boen, and other English cases. Such are the decisions cited from New York, beginning with Jackson v. Gumaer, [2 Cowen, 552], and those relied upon made in other States. Nowhere, however, is it held that the power of attorney of a lunatic, or any deed of his which delegates authority but con- veys no interest, is not wholly void. And in Pennsylvania, in the Estate of Sarah Desilver [5 Rawle, 111], it was directly ruled that a lunatic’s deed of bargain and sale is absolutely null and void, and the distinction between his feoffment and his deed was recognized. So also in Rogers v. Walker [6 Penn. St. 371], which was an eject- ment by a lunatic, it was held that a purchaser from her had no equity to be reim- bursed his purchase-money, or the cost of improvements, and Chief Justice Grnson said: ‘Since the time of Thompson v. Leach [Carthew, 435], it has been held that a lunatic’s conveyance, executed by sealing and delivery only, is absolutely void as to third parties, and why not void as to the grantor? It was said to be so for the very unphilosophical reason that the law does not allow him to stultify himself, — an early absurdity of the common law, which was exploded with us by Bensell v. Chancellor, 5 Whart. 371. The doctrine that a lunatic’s power of attorney is void finds confirmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a lunatic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. Yet it is universally held, as laid down by Lord Mansrixxp in Zouch v. Parsons [8 Burrow, 18085, ante, p. 3], that the deeds of an infant which do not take effect by delivery of his hand (in which class he places a letter of attorney) are void. We are not aware that any different rule exists in England or in this country. It has repeatedly been determined that a power of attorney made by an infant is void. Saunderson v. Marr [1 H. Black. 75, ante, p. 35; 2 Lilly, Ab. 69; 1 Am. Lead. Cas. 248, 249]. So it has been decided in Ohio [Lawrence v. McArter, 10 Ohio, 37] ; in Kentucky [Pyle v. Cravens, 4 Litt. 17]; in Massachusetts [Whitney v. Dutch, 14 Mass. 462] ; and in New York [Fonda v. Van Horne, 15 Wend. 636]. In fact we know no case of authority in which the letter of attorney of either an infant or lunatic has been held merely voidable. It must, therefore, be concluded that the Circuit Court was not in error, in instructing the jury that a power of attorney executed by an insane person, or one of unsound mind, is absolutely void. Judgment affirmed. 574 avoiding the deed, and that by his acts, such as receiving payment of the notes given him for the purchase-money, he will relinquish such power. Arnold v. Richmond Iron Works, 1 Gray, 434. The ratification of a deed executed IDIOCY, LUNACY, ETC. ual as against the grantor’s prior deed executed while he was sane, and re- corded after the formal execution and recording, but before the ratification of the second deed. Bond v. Bond, 7 Allen, 1 during insanity will not make it effect- CARRIER v. SEARS. Supreme Judicial Court of Massachusetts, September Term, 1862.) (4 Allen, 336. Contracts of Insane Persons voidable, and not void. —In an action by the in- dorsee against the maker of a promissory note, it is no defence to prove that the plaintiff procured the indorsement .by undue influence from the payee when he was of unsound mind and incapable of making a valid indorsement, if the payee, or his legal representatives, have never disaffirmed it. Hoar, J. This action is by the indorsee of a promissory note against the maker; and the defendant offered to prove that the plaintiff procured the indorsement by undue influence from the payee, when he was of unsound mind and incapable of making a valid indorsement. This evidence was rejected, and we think it ought not to to have been admitted. An indorsement is a con- tract; and the contract of an insane person, or one obtained by fraud or duress, is voidable and not void. 2 Bl. Com. 291; 2 Kent, Com. 6th ed. 451 ; Seaver v. Phelps, 11 Pick. 304; Allis v. Billings, 6 Met. 415 ; Arnold v. Richmond Iron Works, 1 Gray, 484 ; Gibson v. Soper, 6 Gray, 279. The right to avoid it is a personal right, which can only be exercised by the insane person, or his guar- dian, or representatives. The contract is binding upon the party who is of sound mind, and his rights under it are not affected until it is avoided by the party entitled to disaffirm it. The property passes as to third persons. The only case cited by the defendant upon this point is Peaslee v. Robbins, 8 Met. 164. That was an action upon a note by an CARRIER ¥v. SEARS. 575 indorsee against the promisor, and evidence was offered tending to prove that the payee, when he indorsed the note, had hot sufficient mental capacity to make a valid transfer of it. To es- tablish this, evidence was admitted as to his incapacity at the time the note was made to him, as well as after; and the admis- sibility of this evidence was the question raised upon the bill of exceptions. This Court held that it was admissible, as tending to show his state of mind at the time he indorsed it. Whether his want of mental capacity was a defence of which the defend- ant could avail himself does not appear to have been questioned by either party or by the Court. Judge Wixpz, in delivering the opinion, says: ‘The plaintiff is bound to show a legal transfer of the note, by proof of the handwriting of the indorser; and it follows, as a necessary consequence, that the defendant must be allowed to impeach the plaintiff’s title to the note by showing that the indorsement was void. Evidence therefore of the in- dorser’s mental incapacity to make a valid contract, at the time he indorsed the note, was material evidence; and not the less material because the same incapacity existed when the note was signed.” These remarks of the learnéd judge, unexplained, would certainly countenance the position taken by the defendant in the - case at bar; and the report, as it stands, does not afford the nec- essary explanation. The point decided was only that evidence of insanity at one time was competent as tending to prove insanity at a time shortly after. But the fact in the case was, as I well i remember, that the defendant had been notified by the guardian of the insane payee not to pay the note to the plaintiff; and the defence was conducted by the guardian for the benefit of his: ward. We have examined the record, and find in the original specification of defence the statement “that said Fletcher, as guardian to said Parker (the payee of the note), claims said note as the property or estate of said Parker.”” There was no con- troversy upon this point; and the guardian, having claimed and exercised the right to disaffirm and avoid the indorsement, the only question was upon the mental incapacity of the payee at the time the indorsement was made. The language of the Court was therefore perfectly warranted in its application to the cir- cumstances of the case, as it was presented and understood by the parties, but would require limitation if taken as the enuncia- tion of a general principle. 576 IDIOCY, LUNACY, ETC. The other exception stated in the report is equally unten- Able: 66s we Judgment on the verdict. J. D. Colt and 7. P. Pingree, Jr., for the plaintiff. H. W. Bishop and J. Tucker, for the defendant. See next case and notes. Burke v. ALLEN. (29 N. H. 106. Superior Court of Judicature of New Hampshire, December Term, 1854.) Insane Person incompetent to indorse a Promissory Note. — An indorsement of a promissory note by the payee is a contract which an insane person cannot make, because he has not the power to give that consent which the contract requires. In an action upon a promissory note by an indorsee against the maker, insanity in the payee and indorser at the time of the indorsement and transfer, is a valid defence. Evidence having been introduced tending to show that the note in question had gone into the hands of the plaintiff, as agent and not as owner, evidence in behalf of the plaintiff showing the money transactions between the parties is admissible in rebuttal. ASSUMPSIT on a promissory note dated January 18th, 1844, for the sum of $302.75, signed by the defendant, and payable to one Hannah Allen or order on demand with interest annually, and by her indorsed to David Allen, the plaintiff’s testate. Plea, the general issue. On the trial the note declared on was produced by the plain- tiff, and upon the back of the note was the name of Hannah Allen, in her own handwriting. On the part of the defendant it appeared that David Allen, the deceased, and Samuel Allen, the defendant, were children of Hannah Allen; that David, for several years prior, and subse- quent to the date of the note, acted as an agent of Hannah Allen, receiving and disbursing large sums of money for her and managing the most of her affairs. In the summer of 1848, she was taken to the asylum for the insane by David Allen, and remained there until her decease, about two years afterwards. An administrator has been appointed upon her estate, but he’ has never called upon the defendant to pay the note in question or authorized him to defend this suit. BURKE v. ALLEN. 517 There was evidence that Hannah Allen was more or less in- sane at intervals, as early as the summer of 1847; but she was not at any time under guardianship. The Court ruled that the defendant could not be permitted to show the insanity of Hannah Allen, at the time of her indorse- ment of the note, as a defence to the action. The defendant introduced a witness who testified that in the fall of 1846, he heard David Allen ask Hannah Allen to indorse the note now in suit, and she objected, saying that she did not want Samuel, the defendant, to pay the note; but David said, all he wanted with the note was to raise the money to pay her debts, and that he would give the note back again; that he wanted to pledge it as collateral security. The Court then permitted the plaintiff to prove the state of the accounts and money transactions between Hannah Allen and David Allen, and down to the summer of 1848, when she was carried to the asylum, in order that the jury might better deter- mine whether the note probably went into the possession of David Allen as agent or owner. . The jury returned a verdict for the plaintiff, which the defend- ant moved to set aside, because of the ruling of the Court as to the insanity of Hannah Allen, and the admission of the evidence as to the state of the accounts. A. and 8. H. Edes and Cushing, for the defendant. The evi- dence to show the insanity of the indorser, at the time of the . indorsement, should have been admitted. The negotiation of a note by indorsement is a contract, and requires competent contractors ; and an insane person is not com- petent to make a contract. It is a familiar principle that a con- tract must be the act of a consenting mind. If the party be not of sound mind, so as to be capable of giving a rational consent, there can be no contract. Chit. on Con. 129, note a; 1 Black. Com. 433; 3 Bac. Ab. 540; 1 Bouvier’s Inst. 229; Davis v. Lane, 10 N. H. 150; True v. Ranney, 1 Foster, 52; Browning v. Bean, 2 Phil. 69; Seaver v. Phelps, 11 Pick. 304; Lang v. Whidden, ‘2 H. N. 488. If the contract of Hannah Allen was null and void, then the plaintiff’s testate could take nothing by the indorsement. He was not an innocent indorsee ; he had been agent for the in- dorser long before the time of indorsement, and transacted her 387 578 IDIOCY, LUNACY, ETC. business, and knew her state of mind; and it is fair to presume that he intended to defraud the other heirs. The state and condition of the mind of a party is proved like other facts to the jury; and evidence of the state of mind, both before and after the act done, is admissible. 2 Greenl. on Ev. 867. It would seem, then, that the indorsement of a note by an in- sane person is a mere nullity and void, and may be taken advan- tage of by any one whose interest it is to do it. But if it should be held otherwise, and that such a contract is not void, but void- able only, and that the maker of this note could not set up this defence ; then we contend that the defendant, being heir at law of the indorser, was interested in having the contract avoided ; that the amount of the note should go to increase the estate of the deceased indorser, his mother, out of which he is to have his distributive share. In the character of heir at law of the deceased insane indorser, he would surely be entitled to make this defence. He is fairly before the Court in that capacity. # Besides, should the administrator of the deceased indorser bring a suit on the note against the maker and avoid the indorsement by reason of insanity, would a judgment in the present suit against the maker be a bar to such suit ; the contract of indorsement being void between those parties and the judgment being between other parties ? There seems to be some conflict in the decisions in the Eng- lish Courts upon the point whether the contracts of insane per- sons shall be held void, or voidable only ; but we think they are explainable when the technical use of the word lunatic is con- sidered. The cases where they are held voidable are those in which the person has been decreed by a Court of Chancery to be a lunatic from imbecility of mind and incapacity to manage his business, and not where real insanity existed. If actual insanity existed, they have been held void. Baxter v. Earl of Portsmouth, 7D. & R. 614; Dane v. Viscountess Kirkwall, 8 Carr. & P. 679; Matter of James Barker, 2 Johns. 233; Gibson v. J oyes, 6 Ves. 266; 8 Carr. & P. 30; Ridgman v. Dawson, 8 Ves. 64; 12 Ves. 445; In re Holmes, 4 Russell, 182; Ex parte Atkinson; In the matter of Parkinson, 1 Jacob, 333. The evidence as to the state of the money matters and accounts between Hannah Allen and the plaintiff’s testate should not have BURKE v. ALLEN. 579 been admitted. It was immaterial, and if the balance was found in his favor it could give David Allen no title to the note. And any inference which might be drawn by the jury as to “ the pos- session of the note by David, either as agent or owner,” from a statement of the accounts between them subsequent to the in- dorsement, was only calculated to mislead the jury by presenting an issue foreign to the case. Burke, for the plaintiff. Upon the case as stated, two questions arise. First, ought testimony tending to show the insanity of Hannah Allen, the payee and indorser of the note, at the time of the indorsement, to have been admitted on the trial? Second, ought the plaintiff to have been permitted to prove the state of the accounts and money transactions between Hannah and David Allen, in order to enable the jury to determine the question whether or not the note on which this action is brought went into the hands of David as agent or owner? I. With regard to the first question, it is believed that it was not proper to allow the defendant to show the insanity of Han- nah Allen under the circumstances, and that the ruling of the Court was correct on this point; and for the following reasons : — 1. Insanity, like infancy, isa personal defence. Itcan be made only by the non compos himself, or his personal representative. Lunacy or insanity may be insisted on by the non compos himself, or his personal representatives, to avoid contracts which have been entered into while laboring under insanity, and by which he has been defrauded and imposed upon. But the authorities give no instance in which insanity has been permitted as a defence by other persons, not representing the estate of the non compos. It would be against the true theory and spirit of the law relating to infants and lunatics, if their disabilities or infirmities could be made available by others, against their own liabilities. Chitty on Bills, 18, and cases cited (Am. ed.) 1842; Stock. on Non Com- pos Mentis, 20-30. The incapacity of one party to a contract does not affect the responsibility of other parties to each other. Knox v. Reisell, 1 Miles, 294. . 2. The coniracts of lunatics, like those of infants, are not void, but voidable. Such seems to be the general doctrine. The con- tracts of insane persons are not generally absolutely void, but voidable. WiILpz, J., in Seaver v. Phelps, 11 Pick. 304, 306. The grants of infants and persons non compos are parallel both in 580 IDIOCY, LUNACY, ETC. law and reason. Thompson v. Leach, 8 Mod. 310. Except in the instance of indorsement by a feme covert, it seems that al- though a bill, &c., be drawn, indorsed, and accepted by a person incapable of binding himself, it will, nevertheless, be valid against all other competent parties. Chitty on Bills, 24. If an infant draw and indorse a bill, it is good in the hands of the indorsee. Haly v. Lane, 2 Atkins, 182. The acceptor of a bill cannot avail himself of the infancy of the drawer as a defence in an action brought by the indorsee. Taylor v. Croker, 4 Esp. N. P.187. A lunatic can take by fine. He can suffer a common recovery. The grant of copyhold estates, through his steward, are not void or directly voidable. Feoffments by a non compos mentis are not void, but voidable, Stock. on Non Compos, 23, 25. Thus the contracts of persons non compos mentis seem to be put upon the same ground, substantially, as those of infants. There- fore, the contract between the indorser of a promissory note, if insane, and the indorsee, would be good until avoided by the non compos himself. The payer certainly could not avail himself of the lunacy of the indorser as a defence. Such seems to be the whole tenor of the doctrine laid down by the author last cited. The doctrine that the maker may show the insanity of the payee in a suit brought against himself by the indorsee, rests upon the principle that the payee is incapable of contracting. But if the action were brought by the payee, could the maker set up the insanity of the payee as a defence against the note? Could he thus take advantage of a defence which is intended only asa protection to the payee? And would he not be estopped by his contract from availing himself of such a defence? But in respect to bills and notes, unless it were known and taken ad- vantage of by the plaintiff, so that there is no-fraud in him, a de- fendant cannot in general set up his own insanity in defence. 1 Stephens, Mist Prius, 809. 3. The defendant is estopped from denying the pywer of Han- nah Allen to indorse the note in controversy. It isa principle applicable to all negotiable securities, that a person shall not dis- pute the power of another to indorse such instruments when he asserts by the instrument which he issues to the world that the other has such power. Bamey, J.,in Drayton v. Dole, 2 Barn. & Cress. 299, 4. The principle contended for by the defendant is against the BURKE v. ALLEN. 581 general policy of the law with regard to commercial or negotia- ble instruments. If the defence of lunacy of the indorser, at the time of the indorsement of a bill or promissory note, may be set up by the maker in a suit to recover its contents, it would violate the great principle which protects commercial paper in the hands of an innocent indorsee. Suppose David Allen had passed the note out of his hands to an innocent third person, could the maker, a party to the note, doing his share towards giv- ing a currency in the commercial world, when sued for its recov- ery, shelter himself behind the plea that the indorser was insane ? Between him and the subsequent holder of the note, there is no ground for favor or equity in his behalf. He owes the note and must pay it to somebody. The question, who shall suffer by the insanity of the payee, does not arise, so far as he is concerned. It can arise only between the insane indorser and a subsequent holder. And if the misfortune should fall anywhere, it should be on the lunatic himself. Certainly it should, as between him and an innocent holder of the note. It is against the spirit and policy of the law 1o throw any obstacles in the way of the free circulation of commercial paper. 5. If the defendant can show the lunacy of the indorser in de- fence, before he does it, the parties to the indorsement, Hannah and David Allen, must be placed in statu quo, as before the in- dorsement. It has recently been held that a bond fide contract made with a lunatic who was apparently sane cannot be re- scinded by him or his representatives, unless the parties can be placed in statu quo. 1 Pars. on Cont. 812. The defendant in an action on a promissory note is not allowed to contest the plain- tiff’s title to sue, except for the purpose of protecting himself against a subsequent suit, in the name of a person having a better title, and who has not acquiesced in the suit commenced. But when it appeared that the person who was claimed by the defend- ant to be the real owner of the note had full knowledge of all the proceedings, and had not, in any manner, asserted any right to interfere, it was held that a payment of the judgment to the. plaintiff, if permitted to the real owner of the note, would be a sufficient protection to the defendant. Hackett v. Kendall, 23 Vt. 275. 6. Lunacy cannot be shown as a defence under the general issue. The general rule is that sanity is to be presumed until 582 IDIOCY, LUNACY, ETC. the contrary be proved. 2 Kent’s Com. 562. Lunacy must be pleaded. Alcock v. Alcock, 8 Manning & Granger, 268. Evi- dence of imbecility of mind cannot be given under a plea that the defendant did not make a promissory note. 1Stephens, Mist Prius, 810. Upon the question of lunacy, the defendant has cited two cases from the New Hampshire Reports: True v. Ranney, 1 Foster, 52; and Lang v. Whidden, 2 N. H. 435. With regard to these cases it is sufficient to say, that they assert, as a general principle, that lunacy may be set up as a protection against imprudent or improper contracts by the lunatic himself or his personal representatives. They do not interfere with any principle contended for by the plaintiff. The case of Seaver v. Phelps, 11 Pick. 304, cited by the de- fendant, is also relied on by the plaintiff. It asserts the sound, judicious, and beneficent doctrine that the contracts of lunatics, like those of infants, are voidable and not void; thus enabling Courts of justice to hold the other party to a strict performance of them when beneficial to the lunatic, and to avoid them when injurious. II. With regard to the second question raised in the case, it is believed that proof of the state of the accounts between Han- nah and David Allen was, under the circumstances, clearly ad- missible. The defendant had first been permitted to prove facts tending to show that David Allen had been the agent of Hannah, and in that capacity had received and disbursed large sums of money, in order to afford ground for inference by the jury, that the note in controversy went into his hands as the property of Hannah Allen, and not by purchase. To rebut this presumption, the Court very properly permitted the plaintiff to prove the state of accounts between Hannah and David. In this point of view, the testimony was clearly admissible. Eastman, J. Whatever may have been the doctrine formerly, in regard to insanity as a valid defence against an action upon the contract of a party, it seems to be now well settled that the contracts of idiots and insane persons are, as a general rule, not binding either in law or equity. The rule that a man shall not be permitted to stultify himself is now entirely exploded. Being bereft of reason and understanding, he is considered incapable of consenting to a contract, or doing any other valid act. Yates v. BURKE v. ALLEN. 583 Boen, 2 Strange, 1104; Webster v. Woodford, 8 Day, 90; Thompson v. Leach, 3 Mod. 310; Buller’s Misi Prius, 172; Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Lang v. Whidden, 2 N.H. 485; True v. Ranney, 1 Foster, 52. See also Davis v. Lane, 10 N. H. 156. In Seaver v. Phelps, 11 Pick. 304, which was trover to recover the value of a promissory note pledged to the defendant by the plaintiff when the latter was insane, it was held that it was not a legal defence that the defendant, at the time when he took the pledge, was not apprised of the plaintiff’s being insane, and had no reason to suspect it, and did not overreach him, nor practise any fraud or unfairness. The Court said, the fairness of the de- fendant’s conduct cannot supply the plaintiff’s want of capacity. But it appears to be agreed that when goods have been sup- plied to insane persons, which were necessaries, or which were suitable to their station and employment, and which were fur- nished under circumstances evincing that no advantage of their mental infirmity was attempted to be taken, and which have been actually enjoyed by them, they are liable in law, as well as equity, for the value of the goods. 2 Greenl. on Ev. § 369, and cases cited. This exception, however, does not impair the general principle that the contracts of insane persons are invalid; and had the present action been brought against Hannah Allen, the payee of the note, to charge her as indorser, she could have set up insanity at the time of the indorsement, and, if proved, it would have been a good defence. The contract would be one that an insane per- son would be incapable of making. So far the authorities are all agreed. But can the maker of the note interpose such a defence? Can he be permitted to show, in bar of the suit, that the payee and indorser, was, at the time of the indorsement, insane? If an insane person can do no act whatever that shall bind him or his representatives, as some of the books show, and if all his acts are absolutely void, then it would appear plain that the defence can be set up; for the indorsement could affect nothing in any way. It would be simply a void act. Srory, in speaking of persons non compos mentis, says, that it is a rule not merely of municipal law, but of universal law, that the contracts of all such persons are utterly void. Story on Prom. Notes, § 101. But the authorities generally do not go to that extent, and 584 IDIOCY, LUNACY, ETC. they treat the contracts of insane persons as voidable, not abso- lutely void. Seaver v. Phelps, 11 Pick. 305; 2 Greenl. on Ev. §§ 369, 370; Dane v. Kirkwall, 8 Car. & Payne, 679; Richard- son v. Strong, 13 Iredell, 106. In Price v. Barrington, 7 Law & Eq. 254, a quere is suggested, whether a conveyance executed by a lunatic is absolutely void, in the absence of notice and fraud; and the Lord (Chancellor, in speaking of the question, says that it is not necessary to pro- nounce a decision upon the abstract general question, whether, in the present state of the law, a conveyance executed by a lunatic is absolutely void. There is a distinction to be found, in some of the cases, be- tween the contracts of lunatics and those of insane persons; the term lunatic embracing, in such cases, persons of imbecile mind, as well as those of disordered intellect. But that distinction we need not trace, as in the present case the proposition was to show insanity in the payee. If we are to treat the contracts of an insane person as standing upon the same ground as those of infants, as is contended in argu- ment, and voidable no further than theirs, the weight of authority appears to be, that the maker of a note cannot, in a suit by an in- dorsee, avail himself of the defence of infancy in the payee; and that such a defence is only personal to the infant interposing it. Story says, that it seems now to be well settled that the indorsee of a note, by such transfer and indorsement, acquires a good and valid title to the note, against every other party thereto, except the infant, since it is not-a void but a voidable title only. Story on Prom. Notes, § 80. Currry regards the question as to infant indorsers as not fully settled, though his opinion appears to in- cline to that of Story. Chitty on Bills, 19, 20. The following cases, among others, hold the same doctrine. Taylor v. Crocker, 4 Esp. 187; Haly v. Lane, 2 Atkins, 182; Nightingale v. With- ington, 15 Mass. 272.. In the last case, Parker, C. J., says: “ An infant may indorse a negotiable promissory note, or a bill of ex- change, made payable to him, so as to transfer the property to the indorsee for a valuable consideration. If an action should be brought against the infant as indorser, for default of payment by the promisor, without doubt he may avoid such action by the plea of infancy. But that is a personal privilege, which none but him- self can set up in avoidance of any contract made in his favor.” BURKE v. ALLEN. 585 But while we think that, to hold all contracts whatsoever of an insane person to be absolutely void, is carrying the doctrine too far, we also think that there should be a distinction made between the contracts of a minor and those of an insane person. The contracts of minors are held voidable for the reason that they are supposed to lack that discretion, prudence, and experi- ence, which age gives; and for the further reason that their parents being legally bound to support them are also entitled to their time and service. But with a person who is really insane, there is not the capacity to compare, reflect, decide, judge ; there is wanting the power to understand the consequences of the acts done, and in many instances to know what is done. A minor who indorses a note payable to himself, and receives the money therefor from the indorsee, understands fully what he is doing ; and although the act may be indiscreet and one which his natural guardian will disapprove, and although by such indorsement he may not unavoidably bind himself, yet if the payer finds the note in the hands of the indorsee, properly indorsed, he may well sup- pose that it has been done by the assent of the father, and pay- ment made without notice from the payee will protect him. Having contracted with the minor to pay the amount of the note to him or his order, he cannot deny the contract which he has made, and must be held to pay according to its terms, either to the minor or his order. The minor alone can take advantage of his minority. Moreover the indorsee may be entirely ignorant of the minority, and an innocent holder of the note. The maker, also, may not know of the minority. But with an insane person the matter is very different. He understands not the effect of indorsing the note, nor whether he is} receiving a valuable consideration for the same or not. He may not even know that he is parting with his property, and an indorsee who should take a note under such circumstances would be guilty of fraud. If, at the time the note is given, the payee should be insane, and the maker should be aware of the fact, he would be bound in equity and good conscience not to pay it to an indorsee, till he had ascertained that he was the rightful and legal holder. Or if when it is given he should not be aware of the existence of the insanity, or if after it should be given the payee should become insane, the reason ‘is equally strong why he should not pay it 586 IDIOCY, LUNACY, ETC. without due inquiry, if he had notice of the insanity. And if, under such circumstances, he ought not to be protected in paying the note to the indorsee, then it would seem to follow, as a legiti- mate consequence, that he should be permitted to show the ex- istence of insanity at the time of the indorsement, in defence of an action brought by the indorsee. : There might, perhaps, be an answer to such a defence; as by showing that the transfer was made by the authority of a guardian, if there should be one. But the fact that there can be a good replication made to a plea involving such a defence, does not show the plea, in itself considered, to be bad. And it appears to us that the due protection of the rights of an insane person re- quires that this defence should be permitted; for, unless it is, then payment to an indorsee must be good, and a judgment in his favor upon the note must be a valid bar to any suit upon the same by the insane person or his representatives. If the maker of a note pays it to one who is not the rightful holder, it will be no defence to an action by him who is. Davis v. Lane, 8 N. H. 224. But, if he is precluded by law from setting up a special defence against the holder, the existence of that defence cannot be shown in a suit against him by another party, as a reason why he should: be chargeable. So if the maker can- not show insanity in the indorser at the time of the transfer, in defence of a suit by the indorsee, then insanity cannot be shown by the indorser or his representatives as a reason why the note should be paid to him instead of the indorsee, and the act of in- dorsement would be made legal, and the non compos would be un- protected from the effects of his indorsement. There is another view that may be taken of this question. An indorsee of a promissory note, to sustain his action against the maker, must show the making of the note, and a due indorsement and transfer ; but, if the indorser is insane and incapable of mak- ing a legal transfer, then the plaintiff must fail to make his proof. He must fail to sustain the allegations of his declaration. He cannot show an indorsement, which is a requisite essential to his recovery. This precise point has been so settled in Massachusetts. Peaslee v. Robbins, 3 Met. 164. In delivering the opinion in that case, Witpn, J., says: “The plaintiff is bound to show a legal transfer of the note, by proof of the handwriting of the BURKE v. ALLEN. 587 indorser ; and it follows, as a necessary consequence, that the defendant must be allowed to impeach the plaintiff’s title to the note, by showing thatthe indorsement was void. Evidence, therefore, of the indorser’s mental incapacity to make a valid con- tract, at the time he indorsed the note, was material evidence. All the evidence of the indorser’s incapacity, before and after the indorsement, was properly submitted to the jury, to enable them to decide correctly on the question of his incapacity at the time of the indorsement.”’ We are aware that, in holding evidence of the payee’s insanity at the time of the indorsement and transfer to be competent as showing a defence for the maker, we interfere to some extent with the principles governing the free circulation of negotiable paper. But we think that greater wrong would be done to the unfortunate insane by excluding the defence, and thereby holding payment to any one who might be possessed of the note to be good, than mischief to community from any infringement upon the general doctrine governing the transfer of negotiable paper by receiving it. The counsel for the plaintiff has taken the position that this defence cannot be shown under the general issue. But that ex- ception was not taken in the Court below, and cannot therefore be insisted upon here. It would seem, also, that the position itself is unsound, and that insanity may be pleaded specially, or given in evidence under the general issue. Mitchell v. Kingman, 5’ Pick. 481; Gould’s Pleading, c. 6, § 38. We discover no error in the ruling of the Court admitting the evidence of the state of accounts and money transactions between the plaintiff ’s testate and the indorser. The objection was not to the kind of evidence introduced to show the state of their ‘deal- ings, but to the admissibility of the dealings themselves. And as it was in its nature rebutting, and in answer to a new position of the defendant, it was competent. But the ruling excluding the evidence of insanity was wrong, and for its rejection the verdict must be set aside, and a New trial granted. It may, perhaps, be stated that, in void; at least such is the manifest ten- general (at least in the United States), dency of modern American authority, the contracts of insane persons, before though the authorities are not entirely office found, are voidable only and not harmonious on the question. See Car- 588 rier v. Sears (ante, p. 574); Allen v. Berryhill, 27 Iowa, 584; Person v. War- ren, 14 Barb. 488; Chew v. Bank of Baltimore, 14 Md. 318; Key v. Davis, 1 Md. 382; Allis v. Billings (ante, p. 559) and notes. ; Asto the marriage of persons non compos mentis, see Middleborough v. Rochester and Wightman v. Wight- man (post, p. 600-602), and notes. After office found, however, the deeds and contracts of persons non compos mentis are held to be void; in some of the cases, however, this seems to be the result uf statutory provisions. See Pearl ». McDowell, 3 J. J. Marsh. 658; Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. Sherman, 14 Barb. 169; Wadsworth v. Sharpsteen, 8 N. Y. 388; L’Amoureux v. Crosby, 2 Paige, Ch. 427; Wait v. Maxwell, 5 Pick. 217; Somers v. Pumphrey, 24 Ind. 234; Hovey v. Hobson, 53 Me. 453; Tozer v. Saturlee, 3 Grant, 162 ; Imhoff v. Witmer, 31 Penn. St. 243; 2 Kent’s Com. 450. See also McNees v. Thomp- son, 5 Bush (Ky.), 686. It is said, however, by Mr. Parsons (1 Pars. Notes & Bills, 151), and it would seem with good reason, that he ‘* should have some doubt whether this distinction would be enforced, so far as to say that the contract of a lunatic could not be ratified and confirmed by him after his sanity was restored.” The power of attorney, or other act of an insane person appointing an agent, is held to be void. Dexter v. Hall, 15 Wall.’ 9 (ante, p. 570); Pearl v. Me- Dowell, 3 J. J. Marsh. 660; Marvin v. Inglis, 39 How. Pr. 829. See further, on the subject of agency, Motley v. Head, 43 Vt. 633; Person v. Warren, 14 Barb. 488; Shelf. on Lun. 256. Such voidable contracts may be avoided by the insane parties them- selves, or by their legal representatives, the same rule applying to this case as IDIOCY, LUNACY, ETC. in the case of infants. See, besides, Carrier v. Sears (supra); Jackson v. Gumaer, 2 Cow. 560; Somers v. Pum- phrey, 24 Ind. 238; Key »v. Davis, 1 Md. 32; Allen v. Berryhill, 27 Iowa, 534; Beverley’s case, 4 Co. 1236 (in note to Mitchell v. Kingman, ante, p. 526); also Whittingham’s Case (ante, p. 83), and notes. . But not at the suit of the wife of the insane person. Kilbee v. Myrick, 12 Fla. 419. In Allen v. Berryhill (supra), the sane party to the contract alleged as a defence, that the other party to the contract was totally insane at the time it was entered into; but the contract was nevertheless held binding upon the sane party. As to the point litigated in the prin- cipal cases, Alcock v. Alcock, 3M. & G. 268, is an authority in favor of the doctrine laid down in Burke v. Allen (supra); see also 1 Pars. on Notes & Bills, 151. Notwithstanding these au- thorities, however, the rule laid down in Carrier v. Sears (dante, p. 574), is be- lieved to be more in accordance with the manifest tendency of modern Ameri- can authority towards holding the con- tracts of insane persons voidable only and not void. But it is to be remarked here, also, as with reference to the deeds of insane persons, that, did not the weight of American authority seem to tend to the contrary conclusion, the views set forth by Cox, J., in his dissenting opinion in the late case of Allen v. Berryhill, 27 Towa, 540, decided in 1869, would deserve great consideration before ar- riving at such contrary conclusion. The question is so well discussed in this case, both pro and contra, and the authorities so fully collected, that, not- withstanding it is somewhat volumi- nous, it is deemed well worthy of the space, and is herewith given in this note: —2 1 Action in equity. ‘he petition alleges that the plaintiff, Isaac L. Allen, is a person of unsound mind, and has been for more than a year past; that on the fourth day of February, 1867, R. D. Stephens was duly appointed guardian of the person BURKE ¥. ALLEN. 589 and estate of said lunatic. That on the first day of July, 1866, the said Allen, by R. D. Stephens, his attorney in fact, thereto duly authorized by a written power of at- torney, made and acknowledged by the said Allen, on the 26th day of June, 1866, entered into a contract in writing with the defendant, Charles H. Berryhill, and one H. D. Downey, by which Allen agreed to convey to said Berryhill and Downey, who purchased the same, certain lands and property in Montana Territory, on payment of two certain promissory notes, amounting to forty-five hundred dollars, executed by said Berryhill and Downey to said Allen, payable in one year with two per cent. in- terest. A copy of said contract and notes is annexed to the petition. It is also averred that the guardian, since his appointment, has approved of said contract; that said Allen is now an inmate of the State Lunatic Asylum, and hopelessly insane; that Downey is now deceased; no part of said notes has been paid; that said Berryhill and Downey’s representatives are entitled to a conveyance of said land, &c., upon the payment of said notes; and that, before such conveyance can be made, the same must be authorized by this Court. The wife of Allen, and the representatives of Downey, are made defendants. The prayer of the petition is, for authority to make the conveyance, and for judgment against Berryhill for the amount of the notes, &c. The defendant Berryhill filed his answer in general denial, and by special defences ; and for eighth count of answer averred that the contract was still wholly executory, and that Allen was totally insane, in fact, when the same was made, and wholly in- capacitated to enter into such contract, or authorize the same to be done, and the same was without binding force or validity as to said Allen, or Stephens, the at- torney in fact, or this‘defendant. And for ninth count averred that Downey’s estate was wholly insolvent, the contract executory and joint, &c., and should not be en- forced. To these two counts of the answer the plaintiff demurred, as not stating facts sufficient to constitute a defence. This demurrer was sustained. The defendant Berryhill appeals. Clark and Haddock, for the appellant. Edmonds and Ranson, for the appellee. Ditton, C.J. In substance, this action is one to recover judgment upon the notes made by the defendant to Allen. Incidentally, authority is asked to enable a deed of the property to be made when the purchase-money shall be paid. It is nota case where a specific performance is sought, which rests in the discretion of the Court to grant or refuse, according to circumstances. The case should be regarded, and will be treated, in settling the law applicable to it, as if it were in form, as it is in substance, an ordinary action upon the notes. The subject of the contracts of insane persons was recently before the Court, in the case of Behrens v. McKenzie, 23 Iowa, 333. The general subject was quite fully examined at that time by the counsel who argued it, and by the Court. It was remarked, in the opinion delivered therein, that ‘the decided cases are far from being uniform on the subject of the liability or extent of liability of persons of unsound mind for acts and contracts done and made while in this condition. .... The state of the law is such as to allow us to decide this case upon principle.” The conflicting and very unsatisfactory state of the authorities thus referred to is so fully exhibited in the separate opinion of our brother Coxe (in whose conclusion, however, the other members of the Court cannot concur), that it is not deemed nec- essary more particularly to refer to them in the present opinion. The peculiarity of the case now under consideration consists in the fact that the representative of the party alleged to be insane, and with whom the contract was made, is the party seek- ing to have it enforced. It is the sane party to the contract that makes defence ; and the defence is that the other party to the contract was totally insane at the time it was entered into. No such case, that is, no case where it was the sane party who set up as a defence that his adversary was insane, was referred to by counsel ; nor is any such 590 IDIOCY, LUNACY, ETC. referred to among all those which have been so industriously and carefully collected by Mr. Justice Coz. This circumstance is regarded as important, and as distin- guishing the case from those in which it is the insane party who pleads his incapacity and seeks to prevent the sane party to the contract from enforcing it against him. It is the opinion of the Court that justice and sound policy concur in requiring it to hold, as it does, that where a contract has been entered into (under circumstances which would ordinarily make it binding) by a sane person with one who is insane, and that contract has been adopted and is sought to be enforced by the representa- tives of the latter, it is no defence to the sane party merely to show that the other party was non compos mentis at the time the contract was made. There are obvious reasons, founded on the justice and propriety of protecting those whom the visita- tions of Providence have incapacitated from protecting themselves, against contracts which are discovered to be prejudicial to their interests. Their incapacity to contract is a shield which the law places in their own hands to protect them, not a sword in the hands of others, with which to cut down their rights. If a person who is of unsound mind, or who is afterward shown to have been of unsound mind, shall chance to make a contract which is really advantageous to him, can a satisfdctory reason be given why he should not have the right to enforce it? No such reason occurs to us. The reason advanced by the appellant is, that in law two minds must concur to make a contract; that where one of the parties is insane there are not two minds capable of contracting; hence there is and can be no con- tract, and, therefore, no liability by either party to the other thereon. It cannot be denied that there is to the legal mind, prone to draw and often delighting to indulge in refined and acute distinctions, much that is plausible in the ground here assumed. But, after all, is that ground really tenable ? As applied to this case, the defendant says to the plaintiff: “ You cannot recover, because you have no contract.” The plaintiff replies, “‘ But I have a contract: here it is ; it consists in your own notes.” Now what does the defendant rejoin? “J ad- mit you have my notes, but, though signed by me, they are not, in legal contempla- tion, my act, because you had no power to agree to take them.” Is this rejoinder not subtle rather than substantial? In fact, the plaintiff has the promise or contract of defendant ; and, if fairly obtained, it ought to be no defence to a sane defendant, that the plaintiff’s mind was not sound at the time the contract was made. The objection relied on by the defendant is one of the many difficulties which have arisen out of the use of the words “ void” and “ voidable,” and the uncertain extent of meaning attached to them. : The conclusion which we reach derives a very strong support in the analogies of the law. Thus, if an infant make a contract with one of full age, it may, as is well known, be enforced by the infant against the adult, but not by the adult against the infant, if the latter pleads (and the plea is purely personal) his disability. So also the same doctrine applies to the disability of coverture. And this Court has de- cided, that, while, as a general rule, it is true that the discharge of a principal releases a surety, yet it holds that “where a person sui juris becomes surety for a married woman, a minor, or other person incapable of contracting,” the surety is bound, notwithstanding a successful plea of disability on the part of the principal. Jones v. Crosthwaite, 17 Iowa, 398, 396, and cases cited. (a) Another illustration : Delivery is essential to x deed, and acceptance essential to delivery, and there can be no acceptance without mental assent. This is a general rule of law, and yet a deed made to an infant or toa lunatic, although there be no mental capacity capable of understanding the nature of the instrument, is valid. The law supplies or presumes the requisite assent to an act beneficial to the party, (a) See 12 Albany Law Jour. p. 65. BURKE ¥, ALLEN. 591 or it dispenses with it. So here. Where a person of unsound mind makes a con tract which is beneficial to him, the law supplies or presumes the existence of the requisite capacity ; or, for his protection, estops the other party to set up and sustain this objection. The subject might be further elaborated, but it is scarcely needful to do so. It is the opinion of the majority of the Court, that the eighth count of the answer pleaded no sufficient defence, and this conclusion is strengthened by the con- sideration that it is not alleged therein that the incapacity of Allen was unknown to the defendant at the time the contract was made. If the contract was made by the defendant with knowledge of Allen’s situation, his claim to make this defence is thereby weakened. The allegation of Downey’s insolvency is no defence to the present action. This is so obvious as not to require any special notice. : » Affirmed. Cots, J. (dissenting). The decision of this case rests, in a large measure, upon the question whether the contracts of a lunatic are absolutely void, or only voidable. The language of judges and text-writers upon this question has often been loose and indefinite ; and there is an irreconcilable conflict in the authorities upon it. Indeed, the status of lunatics, and their rights in Court, have undergone material changes. Under the ancient common law, lunatics were permitted to show their lunacy in defence of their alleged contracts. 2 Black. Com. 291. But later, and in the times of Edward III. and Henry VI., this right was denied, for the alleged reason that a man cannot know, in his sanity, what he did when he was insane. Beverley’s case, 4 Rep. 123; Stroud v. Marshall, Cro. Eliz. 398; Cross v. Andrews, id. 622. And in anonymous case (13 Vesey, 590), it was held that lunacy was no defence. And as late as 1827, Lord Tenrerpen said, in Brown v. Jodrell, 8 Car. & P. 30, that no person can be suffered to set up his own lunacy as a defence. But for the last cen- tury and more, it has generally been conceded that the lunatic may show his lunacy in defence ; and this doctrine obtains and is well settled in this country. Rice v. Peet, 15 Johns. 508; Webster v. Woodford, 3 Day, 90; Lang v. Whidden, 2 N. H. 485; Mitchell v. Kingman, 5 Pick. 481; Bensell v. Chancellor, 5 Whar. 371. I have said that the authorities are in conflict upon the question whether the contracts of a lunatic are void or only voidable. I now proceed to refer'to some of the cases showing the conflict. Thompson v. Leach, 8 Mod. 301 ; s. c. Carth, 485, and also in 2 Salk. 427, it was held that the deed of a man non compos mentis was not merely void- able, but was void ab initio for want of capacity to bind himself or his property. Lord ELLensorovuen said, in Pitt v. Smith, 8 Camp. Cas. 33: “You have alleged that there was an agreement between the parties ; but there was no agreement, if the defendant was intoxicated in the manner supposed. He had not an agreeing mind. Intoxication is good evidence upon a plea of non est factum to.a deed, of non concessit to a grant, and of non assumpsit to a promise.” Judge Swirt, in his Digest, 178, says, an agreement signed by a man in a complete state of intoxication is void. In Fenton v. Holloway, 1 Starkie, 126 (2 E. C. L. R. 324), it was held that a contract in writing, signed by the plaintiff when in a state of intoxication, was a nullity, and need not be produced. And in 2 Starkie Ev. (5th Am. ed.) 287: “A defendant may avoid even a deed on non est factum pleaded, by evidence that he was made to sign it when he was so drunk that he did not know what he did, in which case it is entirely void. It has, indeed, been said that a Court of equity will not relieve in such « case, unless the inability were occasioned by the management and contriv- ance of him who gained the deed. But, at common law, no such distinction seems to obtain ; the law regards the contracts of one who for the time is bereaved of reason, though by his own folly, as void, and does not punish his moral delinquency by sub- jecting him to obligations to which his assent is essential, when he is incapable of assent.” And it was held in Carter v. Beard, 10 Simons, 7 (16 Eng. Ch.), that a lunatic 592 IDIOCY, LUNACY, ETC. “was in a situation which incapacitated him from contracting a debt.” In Gore t. Gibson, 13 Mees. and Welsby, 623, which was an action by an indorsee against an indorser of a bill of exchange, defence complete intoxication, ALDERSON, B., said : “Here the action is necessarily brought upon the contract itself; and when it is shown that the contract by indorsement was made when the defendant was in such a state of drunkenness that he did not know what he was doing, and especially when it appears that the plaintiff knew it, I cannot doubt that the contract is void alto- gether.” In Barrett v. Buxton, 2 Aiken, 467, which is a well-considered case, Prentiss, J., in delivering the opinion of the Court, evincing much learning and research, after referring to Rice v. Peet, and Webster v. Woodford, supra, says: “ These decisions are founded in the law of nature and of justice, and go upon the plain and true ground, that the contract of a party non compos mentis, is absolutely void and not binding upon him. . . . It is an elementary principle of law, that it is of the essence of every contract that the party to be bound should consent to whatever is stipulated, otherwise no obligation is imposed upon him. If he has not the command of his reason, he has not the power to give his assent, and is incapable of entering into a contract to bind himself. Accordingly, Poruier holds (Vol. I. c. 1, a. 4, s. 1), that ebriety, when it is such as to take away the use of reason, renders the person who is in that condition, while it continues, unable to contract, since it renders him incapable of assent.” And Chief Justice Gigson, in delivering the opinion of the Supreme Court of Pennsylvania, In the matter of Desilver, 5 Rawle, 111, says: “ At common law, the feoffment of a madman, as shown by the argument, is only voidable, but his deed is absolutely void; so that, unless we can infer a legislative design to alter the common law in the latter particular, we must hold that his conveyance by bargain and sale is void, and unattended by the consequences attempted to be attributed to it.” And in Rogers v. Walker, 6 Penn. St. 371, the same eminent judge said: ‘Since the time of Thompson v. Leach, Carth. 485; s. c. 2 Salk. 427, it has been held that a lunatic’s conveyance, executed by sealing and delivery of it only, is absolutely void as to third parties ; and why not as to the grantor?” And the Court of Appeals of Kentucky, in Pearl v. McDowell, 3 J. J. Marsh. 658, after quoting 3d vol. Bac. Abr. 539, that the contracts of lunatics and idiots, after office found and the party legally committed, are void, say: “A lunatic has no capacity to contract so long as his lunacy continues.” It is said by Dart, in his work on Vendor and Purchaser, marg. p. 4: “It has, however, been held that a bargain and sale, lease and release, or other innocent conveyance by a lunatic, is absolutely void. 2 Sug. on Pow. (7th ed.) 179.” See also note 1 at bottom of p. 4 et seg.; and also pp. 45, 491-495. Mr. Parsons says: “They who have no mind cannot agree in mind with another; and, as this is the essence of a contract, they cannot enter into a contract. But there is more difficulty when we consider the case of those who are of unsound mind partially and temporarily, and inquire how the question may be affected by the cause of this unsoundness.” 1 Pars. on Contr. 310. See also Story on Contr. §§ 86 and 42. And in a recent work on Infancy and Coverture, this language is used: “It is re- garded equally to the security of an infant, and more to his advantage, that, by considering his acts voidable, we should give him the privilege of avoiding, which also implies that of affirming them, than that, by considering them void, we should lay him under the disability of acting at all, and place him on a level with idiots and lunatics.” Tyler on Inf. and Cov. 49. See also pages 59 and 60. It was also held in Jenners v. Howard, 6 Black. 24, that “if the mind be incapable of assenting, the law pronounces the contract void. Drunkenness of itself merely, unless fraud be practised, will not avoid a contract; but, if the party be in such a state of intoxication that he was for the time deprived of reason, the contract is BURKE v. ALLEN. 593 void.” See also Corbit v. Smith, 7 Iowa, 60; Prentice v. Achorn, 2 Paige’s Ch. 30; Willard’s Eq. 267, and cases cited; Chitty on Cont. 150-153; Comyn on Cont. 2; Edwards on Bills, 68. On the other hand, Mr. BuacksToneg says: ‘‘ Idiots and persons of non-sane mem- ory, infants and persons under duress, are not totally disabled either to convey or pur- chase, but sub modo only. For their conveyances and purchases are voidable, but not actually void.” Black. Com. book 2, p. 291. And Mr. Mercatr, in his recently pub- lished work on Contracts, says (p. 80): ‘‘ By the common law a deed of land made by @ person non compos, is voidable only, but not void; and therefore the deed of such a person conveys a seisin.” Mr. Parsons says: “Before office found, the acts of a lunatic are said to be voidable only, afterwards void. But we should have some doubt whether this distinction would be enforced so far as to say that the contract could not be ratified and confirmed by him after his sanity was restored.” Pars. on Notes and Bills, 151. Mr. Hrzi1arp says: “ The deed of a non compos is voidable by himself, his heirs, or devisees. If he is under guardianship, it is absolutely void.” Hill on Real Prop. (2d ed.) p. 408, § 16. But the same author says in the. same work (p. 271, § 46): ‘‘It was the ancient doctrine, that an idiot or lunatic could not avoid his deed. But it is now settled that the deed of an-idiot is void, and also that of a lunatic, unless he assent to it on recovering his reason. And such deeds may be avoided by the heirs of the parties. But the feoffment of an idiot or lunatic is voidable, not void.” See also Edwards on Bills, .63, 64, 67, 68, and cases cited. Wait v. Maxwell, 5 Pick. 217, holds that a deed by a person non compos mentis who is under guardianship is absolutely void; but if not under guardianship, then it con- veys a seisin and is voidable only. So in Harbison v. Lemon, 3 Blackf. 51, it is said: ‘« The true principle probably is, that a deed may be avoided either at law or in equity, if, at the time of its execution, the obligor was so destitute of understanding as not to know what he was doing, whether the incapacity be occasioned by idiocy, lunacy, or drunkenness.” And in Allis v. Billings, 6 Metc., 415, s. c. 2 Cush. 19, it is expressly and directly held that the deed of a lunatic is only voidable and not void. To the same effect also is Jackson v. Gumaer, 2 Cow. 568, that the contracts of a lunatic be- fore office found are voidable, not void. So in Crouse v. Holman, 19 Ind. 30, it is said: “A conveyance executed by a person non compos mentis, and not under guardianship, is not absolutely void, but voidable only.” And it is held in Ingraham v. Baldwin, 5 Seld. (9 N. Y.) 45, that a mortgage executed by a lunatic is voidable only, not void; it is at most voidable at the election of the lunatic or those claiming some interest under him. See also Arnold v. Richmond Iron Works, 1 Gray, 484; Beeson v. Carle- ton, 13 Inst. 354. Lord MawnsF1£ELp, iv delivering the opinion of the Court in Zouch v. Parsons, 8 Burrows, 1794 [7. e. 1805], says: “Littleton, who writes with great accuracy and pre- cision, puts them both [feoffinent and deed] upon the same foot. He says: ‘If betore the age of twenty-one, any deed or feoffment, grant, release, confirmation, obligation, or other writing be. made by any of them, &c., all serve for nothing and may be avoided.’” But Lord MansFiexp further says, in the same opinion, that the compari- son between an infant and a man non compos mentis is not just; while in Thompson v. Leach, 3 Mod. 810, it is said that deeds of infants and lunatics are parallel both in law and reason. Again, it is said in Fitzhugh v. Wilcox, 12 Barb. S. C. 235, that “the inquisition found and the decree thereoh are notice to all the world, and operate as a judicial sentence upon the question ;” while In re Gangwere, 14 Penn. St. 417, it is held that the inquisition is only prima facie evidence of lunacy, and even the petitioner for it may dispute the fact. So also in Hutchinson v. Sandt, 4 Rawle, 284, Very many other cases which have been examined by us might be quoted, showing further the same conflict. But it is doubtless true that in very.many of the cases 38 594 IDIOCY, LUNACY, ETC. cited, and others which have passed under our observation, the word “ void ” is used in the sense of “ voidable ” and ¢ converso, Although such is not the sense applied to it in many cases, as will be seen by reference to Thompson v. Leach, Gore v. Gibson, Barrett v. Buxton, In re Desilver, Rogers v. Walker, Allis v. Billings, Ingraham v. Baldwin, and other cases supra. There are many cases in the books which are made to rest upon their special cir- cumstances, rather than upon the question whether the contracts of lunatics are void, or only voidable. These may serve somewhat to illustrate the true principle underlying the contracts of persons non compos mentis. In the case of Baxter v. Earl of Portsmouth, 12 E. C. L. 515 [2 C. & P. 178], the defendant, after he had been found a lunatic under a commission of lunacy, employed coachmakers, who were ignorant of such commission, to manufacture and keep for his use certain carriages. ‘The con- tract was performed by the plaintiffs, and the defendant had the use of the carriages pursuant to it; and it was shown that the carriages and the use the defendant had of them were proper and suitable to his rank and position in life. Ansort, C.J.: “1am of opinion that on this evidence the plaintiffs are entitled to recover a reasonable sum for the hire of their carriages, not on the ground of a contract, but for the actual use of the carriages; for that is very different from being bound by contracts in the ordinary meaning of the term. It has been doubted whether it is competent to a person to set up his own incompetency to a contract; but going upon an executed contract is very different from attempting to bind a lunatic on a mere contract on which nothing has been done.” Ona motion for a rule nisi for a new trial, argued by Lord Broucuam, the case was again elaborately considered and the same conclu- sion reached. s.c. 16 E. C. L. 304. [7 D. & R. 614; 8.c.5 B. & C.170.] See also Hallett v. Oaks, 1 Cush. 296; La Rue v. Gilkyson, 4 Barr, 8375. The same ruling in substance was made in Wentworth v. Tubb, 1 Younge & Collyer, C. C. 171, by hold- ing that, in case of necessaries supplied to a lunatic, the law raises a contract by im- plication on the part of the lunatic, and a Court of equity will order a debt paid out of his assets when he is deceased. So, a husband is liable for necessaries supplied to his wife during the period of his lunacy. Read v. Legard, 6 Exch. 657. See also Alexander v. Miller, 4 Harris (Pa.), 213. But in the case of Dane v. Lady Kirkwall, 8 Car. & P. 687, s. c. 84 E. C. L. 958, the Court seems to have gone a step further, and to have rested its judgment upon a.more doubtful basis. The action was for the rent of a house under a written lease ; the defence was insanity, and that the house was not a necessary, the defend- ant having another house in Albany Street. Parrerson, J., in summing up the case to the jury, said, inter alia: “It is not sufficient that it be shown that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it and took advantage of it. . . . I think that here it appears, from the plaintiff’s own witnesses, that Lady Kirkwall was of unsound mind, and that the house in Albany Street was clearly sufficient for her; we therefore come to the main point, whether the plaintiff knew her to be of unsound mind and took advantage of it.” There was a verdict and judgment for defendant; and a rule for a new trial was refused. The case of Moulton v. Camroux, 2 Exch. 487, was an action by the heirs of a lunatic to recover money paid by him for the purchase of certain annuities. The lunatic was of apparently sound mind‘ at the time of the purchase, and was not known by the society of which he made the purchase to be otherwise. Pottock, C. B. “ We are not disposed to lay down so general a proposition as that all executed contracts bona fide entered into must be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude that when a person apparently of sound mind, and not known to be otherwise, enters into a 4 BURKE ¥. ALLEN. 595 contract for the purchase of property which is fair and bona fide, and which is ex- ecuted and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic or those who represent him.” The same case, on error, is reported in 4 Exch. 16, and affirms the same doctrine. To the same effect is Neil v. Morley, 9 Vesey, 478. The same doctrine, substantially underlies the case of Beals v. See, 10 Barr, 56, where the Court held that an executed contract by a merchant for the purchase of goods cannot be avoided by proof of insanity at the time of the purchase, unless there has been a fraud committed on him by the vendor, or he has knowledge of his condition ; and, in de- livering the opinion of the Court in this case, Gipson, C. J., says: ‘‘ The prayers for direction seem to have been founded on a notion, that, independent of every other consideration, a non compos mentis has not capacity either to make or to execute a contract under any circumstances, — a position altogether untenable.” But somewhat at variance with the doctrine of these last cases, is the canis in the case of Seaver v. Phelps, 11 Pick. 804, which was an action in trover for a promissory note pledged by the plaintiff, while insane, to the defendant. In delivering the opinion, Wipe, J., holds that the contracts of lunatics are not generally absolutely void, but only voidable; that a lunatic may avoid his contract, although the other party was not apprised of his lunacy, or had no reason to suspect it from plaintiff’s conduct or any other source, and did not overreach him or practise fraud or unfairness; that the distinction between contracts executed and executory was not material; that the case of Brown v. Jodrell, supra, was founded on the old rule, that no one could plead his own disability, now modified and denied by Mitchell v. Kingman, 5 Pick. 481. This case recognizes and reaffirms two points which seem to be the settled doc- trine of Massachusetts; to wit, that the contracts of lunatics are voidable only, and not void, and that a lunatic may plead his own disability. But when he treats as immaterial the questions of fraud or unfairness, or advantage of the known lunaey ; or the distinction between executed and executory contracts, it goes beyond any pre- viously settled rule of the Courts of that State, or perhaps of any other. The Supreme Court of Connecticut seems, quite indirectly however, to recognize the doctrine that the contract of a lunatic is void. In Grant v. Thompson, 4 Conn. 203, which was an action on a promissory note, the defence was insanity. The only question in the case arose upon admitting and excluding evidence, and the Court says: ‘This evidence, it is true, would not ratify or confirm a contract originally void, but it had a tendency to prove the recognition of it, and that the defendant was of sound mind when he made it.” In direct conflict with the case of Seaver v. Phelps, supra, upon the question of the material distinction between contracts executed and executory, and also as to fairness, knowledge of lunacy, &c., are the cases of Beavan v. McDonall, 9 Exch. 309, and Moulton v. Camroux, 4 id. 16. In the latter case, Patterson, J., says: “This special verdict hardly shows that the ancestor was so lunatic as not to know what he was about when he purchased the annuities; but, even if it did, the modern cases show that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defence cannot prevail, especially when the contract is not merely executory, but executed in the whole or in part, and the parties cannot be restored altogether to their original position.” In full accord with this doctrine is the case of Carr v. Holliday, 5 Ired. Eq. 167. But the case of Sentance v. Poole, 8 Car. & P.1, s.c. 14 E.C. L. R. 179, holds that a negotiable note in an unusual form made by a lunatic is bad, even in the hands of an indorsee. And Gibson ov. Soper, 6 Gray, 279, holds that a lunatic may avoid his deed and recover the land without restoring the consideration received. 596 IDIOCY, LUNACY, ETC. While Carr v. Holliday, 5 Ired. Eq. 167 (supra), holds that a fair trade will not be rescinded even at the instance of the lunatic, when the defendant cannot be put in statu quo. I have examined with much care and interest a large number of cases besides the foregoing, but it is hardly necessary to quote further, or to state the substance of the cases. They only illustrate more in detail the want of harmony in the deci- sions, and the absence of any well-settled principle upon which they are rested. I merely add a few citations which may serve as aids to those who may wish to exam- ine the various phases in which the question has been presented, and the different shades of opinion they have developed. Turner v. Myers, 1 Hagg. C. R. 414; Sam- uel v. Marshall, 3 Leigh, 567; Prentice v. Achorn, 2 Paige’s Ch. 30; Fitzgerald vo. Reed, 9 Sm. & Marsh. 102; Somes v. Skinner, 16 Mass. 348; Hallett v. Oaks, 1 Cush. 296; Sims v. McClure, 8 Rich. Ch. 288, and cases cited; Hutchinson v. Sandt, 4 Rawle, 284; Leonard v. Leonard, 14 Pick. 280; Doe ex dem. v. Abernethy, 7 Blackf. 442; Oliver v. Houdlett, 18 Mass. 239; Lilly ». Waggoner, 27 Ill. 395. See also Smith on Contr. (4th Am. ed.) 328 and 385; Chitty on Cont. 150-158; Story on Cont. §§ 52 and 58; Story’s Eq. Jur. §§ 227 to 237; Price v. Bennington, 7 Eng. L. & Eq. 254. I now turn my attention to what seems to me to be the true principle upon which the rights of lunatics, and of parties contracting with them, must rest. And since several of the cases cited, as did much of the arguments at bar, claim or assume the analogy between contracts of lunatics and infants, I will first examine the basis of the claimed analogy. Infants have not a mature capacity; and while it is true that the degree or meas- ure of their capacity in fact is widely different, extending from the faintest traces of reason manifested by an infant of very tender years up to the almost or quite mature judgment of manhood, yet the common law, by its universal rule, holds all to be alike infants who are under the age of twenty-one years, and throws the same mantle of protection over them, regardless of the measure of their capacity. ‘The law recognizes them all as having some capacity. The precise basis upon which the law rests its guardianship or protection of infants or minors may not be very well settled or defined inthe books. But that they are not bound in law by any contract they may make, if they choose to avoid it, is now well settled. It is true the opinions of Courts and the text-books of elementary writers are full of expressions, to the effect that infants are bound by their contracts for necessaries and the like. But, strictly speaking, these ex- pressions are not true, —they are not the law. To illustrate: if an infant or minor shall make a contract for the purchase of a coat necessary and suitable for him, and agree to pay fifteen dollars for it, while in fact it is only worth ten dollars, he is not bound by his contract. He is, when he chooses to repudiate, only bound by the con- tract which the law raises or implies; to wit, to pay the fair value of the necessary furnished ; and in an action by the merchant upon the contract thus repudiated by the infant for the agreed price of the coat, he could not recover the contract price, nor upon the contract, but only upon the implied promise or contract which the law made. And in every case of suit against an infant resisting payment for necessaries furnished, it devolves upon the plaintiff to prove the fact that the articles were nec- essaries and their fair value; the proof of a contract with the infant to pay a certain price is not sufficient; he must prove the fair value, although it is possible the con- tract might be some evidence of that value. So that, strictly speaking, infants are never bound by their contracts, not even for necessaries. But since all infants do in fact (or are in law presumed to) have some capacity, the law holds them capable of contracting. ‘They are held to have sufficient capacity to give the mental assent requisite to a valid contract. But since they are of imma- BURKE ¥. ALLEN. 597 ’ ture judgment and limited capacity, whereby they may be easily imposed upon and defrauded, the law, for their protection, allows them to plead their infancy in avoid- ance of their contracts, if they choose so to do. Doubtless the true ground upon which they are allowed thus to avoid their contracts is, that they have been defrauded ; and since their limited capacity might render it often impossible for them to show the fraud or unfair advantage, the law only requires them to show their infancy and unwillingness to be bound by the contract, and from these two facts presumes or in- fers the fraud, and absolves the infant trom the obligations of his contract. And, of course, the other party to the contract: must remain bound by it unless the infant choose to avoid it. Nothing can be clearer than this; and hence it is uniformly held that the incapacity of an infant is available only to the infant, and not to the other party. Now it seems to me that the analogy between the contracts of infants, having some capacity, and of lunatics having no capacity, cannot be very strong. Infants are regarded by the law as having capacity sufficient to contract, — that is, to conceive and manifest the assent essential to constitute an agreement. But a lunatic having no capacity whatever, that is, no mind capable of conceiving or manifesting an assent, it is evident that he cannot make a contract; for the very elemental idea of a contract is the mutual assent of two or more persons. As it takes at least two per- sons to make a contract, and their assent must be mutual, or reciprocal, it must follow that if either one does not possess the capacity to yield his or reciprocate the assent of the other, there can be no contract. If no contract, then neither party is bound, and of course the want of obligation is ag available to the one party as to the other. The clear distinction and want of analogy, then, between the contracts of an infant and of a lunatic having no capacity, is manifest at the outset ; an infant binds himself, subject to his right, under the charity and guardianship of the law, to avoid it, and the contract binds the other party absolutely ; while a lunatic, having no capacity, does not bind himself at all, and, per consequence, fails to bind the other party. Nor is the analogy by any means very striking between the contracts of infants, and lunatics having some capacity, — partial lunatics. As regards infants, we have seen that they may avoid their contracts at their mere pleasure, and without showing any other fact than their infancy. But a lunatic, having some capacity or lucid intervals, must show, in addition to the fact of lunacy, the farther fact that the other party took advantage of it to his prejudice. In the case of infants, the law presumes this advantage and prejudice, and does not require proof to show it, nor permit proof to rebut it. But in some particulars the analogy is very apparent. An infant is bound to pay the fair value of necessaries furnished him, so is a lunatic. An infant may refuse to perform (or avoid) his contract ; so may alunatic; &c. The analogy between infants and lunatics is not sufficiently striking to justify the application of the law respecting infants to controversies involving the rights of lunatics. Let us then turn to the facts of this case. The count of the answer de- murred to avers “that, at the time the contract was attempted to be made, Allen was totally insane, in fact, and incapacitated to enter into such contract, or authorize the same to be made.” If he was totally insane, of course he could not give that assent which is essential to a valid and binding agreement. He could not bind himself, nor could he bind the other party to him. Neither party, therefore, was bound; and although there was in form a contract, it was wanting in the vital element of mutual or reciprocal assent. And, the contract being wholly executory, neither party can be required to perform. It must be noticed that we rest this decision upon the two facts, that Allen was “ totally insane in fact,” and that the contract is wholly execu- tory on both sides. If there had been some capacity, however limited, the contract 598 IDIOCY, LUNACY, ETC. would not have been, of itself, entirely void or no contract. So, if the contract had been executed, in whole or in part, other questions would be involved in its deter- mination which might materially affect the result, Where a contract is wholly executory, and neither party has parted with any thing of value, but simply a promise has been given for a supposed promise, there is no equity or rule of law which can demand its enforcement. The lunatic cannot demand it, because he has given nothing whatever for the promise he seeks to en- force, not even his own promise; for by reason of his insanity his promise was no promise. The other party cannot demand it, because the lunatic, in the eyes of law, has made no promise to be enforced. : But if the contract had been fair, made in good faith, and fully executed, other considerations than that of mere capacity, intervene and affect the rights of the parties. The contract being fair and free from fraud, there is no basis for an action ; for the element of damage, which is necessary to sustain any action, is wanting. The question of the knowledge of the party dealing with the lunatic of his condition, it seems to me, can only be material as a circumstance bearing upon the question of fairness or good faith of the transaction; although it is doubtless true that a Court would much more readily set aside a transaction with a lunatic made by a party knowing him to be such, than if he was honestly supposed to be sane and capable; and this, because of the ground it would afford for basing the conclusion of fraud or unfairness in the transaction itself. And in every case of contract with a lunatic, which has been executed in whole or in part, the fact that the parties can or cannot be placed in statu quo will have an important bearing in determining whether such contract shall stand. If the parties can be placed in statu quo a Court may very properly hold the contract void, and restore the parties to their original rights and property ; because thereby no injus- tice is or can be done to either, and the possibility of prejudice under the contract is avoided. And where the party dealing with the lunatic had knowledge of his con- dition at the time of the contract, and the parties can be placed in statu guo, no Court should hesitate to do so at the suit of the lunatic. ‘When the parties cannot be placed in statu quo, and the contract is fair, was made in good faith and without knowledge of the lunacy, it will not be set aside, even at the suit of the lunatic. And this, not because the contract was valid or binding, but because an innocent party, one entirely without fault or negligence, might, and in the eyes of the law would, be prejudiced by setting it aside. Both parties are faultless, and therefore stand equal before the law and in the forum of conscience. The law will not lend its active interposition to effectuate a wrong or prejudice to either; it will suffer the misfortune to remain where nature has cast it. But if there was any unfairness in the contract, or if the party dealing with the lunatic had knowledge of his lunacy, and obtained even a slight advantage by it, this would destroy the basis of equality, and justify a Court in setting aside the contract, notwithstanding the parties could not be placed in statu quo. Nor, in my view, based, as I think, upon principle, can it be material whether the lunatic has been found to be such under a judicial commission or not, except so far as such finding may tend to establish the fact of lunacy, or the knowledge of it by the party contracting with him. And hence I do not approve or follow those cases which hold that the contracts of lunatics are void or voidable, as they have or have not been found lunatics under a commission. See Pearl v. McDowell, 3 J.J. Marsh. 658; Wait v. Maxwell, 5 Pick. 217; Jackson v. Gumaer, 2 Cow. 578, and other cases supra. The question upon which the rights of the parties turn is one of fact; to wit, Was the party a lunatic? If he was in fact a lunatic, totally insane, then he was inca- pable of making a contract, being without a mind with which to conceive or mani- BURKE ¥. ALLEN, 599 fest the requisite assent; and this, too, without regard to the fact whether he had been found a lunatic under a commission or not. The finding under a commission of lunacy, is only evidence prima facie of the fact of lunacy during the time specified in the finding. It has been uniformly so held, unless the case of Fitzhugh v. Wilcox, 12 Barb. 235, supra, be an exception; and this point does not seem to have been directly adjudicated in that case. See Lilly v. Waggoner, 27 Ill. 395. And it also appears to me that the doctrine of the Supreme Court of Pennsylvania upon the question, whether the deed of a lunatic is void or only voidable, is better founded upon both principle and logic than the doctrine of the Supreme Court of Massachusetts. Both Courts agree that a feoffment by a lunatic is voidable only, and not void. And from this basis the Massachusetts Courts conclude and hold that the deed of a lunatic is only voidable, and not void; while the Pennsylvania Courts hold that the lunatic’s deed is absolutely void, and not voidable merely. This latter view finds its support in the fact that a feoffment was always accompanied by livery of seisin. The livery of seisin was performed by the feoffor and feoffee going upon the land, and the latter receiving it from the former. This ceremony or act trans- ferred the actual seisin or possession to the transferee or feoffee, and whether the feoffor had the mental capacity to make a valid contract or not was immaterial, since the actual seisin was given by the manual act or livery. The actual seisin being transferred, it could not, of course, be void; but, in order to regain the posses- sion, the act must be avoided. Under our law there is no such formal and actual livery of seisin, but the seisin passes, if at all, by the deed itself; and hence, if there is no deed by reason of the want of capacity to make it, no seisin or title passes, and therefore there is nothing to avoid: it is void of itself. If the contract of a lunatic is void, as I hold it is, then it is clear that it could not be ratified by his committee, since a void act is no act, and hence incapable of being ratified. But, aside from this, it has been held by the Supreme Court of Massachu- setts, where the contracts of lunatics are held to be voidable only, that it was not competent for the guardian of a lunatic to avoid the lunatic’s contracts. Oliver v. Houdlett, 138 Mass. 239. And it has also been held thata guardian or committee could not, by any act of his, make the contract of a lunatic good., Fitzhugh v. Wilcox, 12 Barb. 235, supra. The averment of the plaintiff in his petition that he, as guardian, has approved of said contract since his appointment, cannot therefore help the plain- tiff’s case. There is still another view of this case, as presented by the record, which leads to the same result, and perhaps by a more direct and satisfactory line of reasoning. It appears, from the petition and exhibits, that the contract of sale upon which the suit is brought was made by R. D. Stephens, as attorney in fact for Allen, the luna- tic, under a power of attorney executed at or about the time the contract was made, and while he is averred to have been totally insane. Now, it is very well settled that the power of attorney of an infant or lunatic is wholly void. Lanz, C. J., in deliver- ing the opinion of the Supreme Court of Ohio in the case of Lawrence v. McArter, 10 Ohio, 37, says: ‘It has been held in many cases, and, as far as I can learn, with- out a dissenting opinion or a contradictory authority, that letters of attorney (of infants) conveying no present interest, are absolutely null.’ And Parkes, B., in Sarbuck v. Bispham, 2 Mees. & Wels. 6, says, “a lunatic is not competent to appoint an agent.” And it is also said in Pyle v. Cravens, 4 Litt. (Ky.) 17, that a warrant or power of attorney given by an infant is wholly and absolutely void. It must fol- low, therefore, that the attorney in fact who made the contract sued upon had no authority to make it; and it appears from the pleadings that Allen continued a luna- tic up to the bringing this suit, and of course could not ratify the act of his agent or attorney in fact; and, as we have seen, it is not competent for a guardian or com- 600 IDIOCY, LUNACY, ETC. INHABITANTS OF MIDDLEBOROUGH v. INHABITANTS OF ROCHESTER. (12 Mass. 363. Supreme Judicial Court of Massachusetts, July Term, 1815.) Marriage of one non compos mentis, void. — One not having sufficient under- standing to be able to make a valid contract respecting property, or to deal with discretion in the common affairs of life, cannot contract matrimony; and a supposed marriage with such an one by a female does not change the place of her lawful settlement. Assumpsit for the expenses incurred by the plaintiffs in sup- porting one Susannah Winslow and her child, the lawful settle- ment of the said paupers being, as the plaintiffs alleged, in the town of Rochester. . A verdict was taken, at the sittings here after the last October term, for the defendants, subject to the opinion of the Court upon a case stated by the parties, in which it was agreed that the charges by the plaintiffs were reasonable, and that due notice had been given by the overseers of Middleborough to the overseers of Rochester, to which a seasonable answer was returned ; and that the said Susannah was born in Middleborough, and still had her legal settlement therein, unless her marriage with Ebenezer Win- slow was valid in law, so as to change her settlement to Rochester, the place of the lawful settlement of the said Ebenezer, at the time of the said marriage and afterwards. On the 2d of November, 1806, the said Susannah, then Susannah Thomas, was married to the said Ebenezer Winslow, by a settled minister in Middleborough, at the house of her father, the inten- tion of marriage having been previously published according to mittee of a lunatic to either ratify or avoid his contracts. The supposed contract, therefore, was not the contract of Allen, for the want of authority on the part of his agent or attorney in fact to make it; and this regardless of the question whether the contracts of lunatics are merely voidable or are wholly void. It is averred by an amended petition that the contract of sale sued upon was made pursuant to a previous agreement entered into at the time of, and in part considera- tion of, the purchase of the identical property in controversy by Allen of the defend- ant Berryhill. It is perhaps unnecessary for me to remark that my opinion of this case leaves the rights of the parties upon that hypothesis of facts wholly untouched. What I hold is that contracts which are wholly executory, made by persons totally insane, are so far void as that they will not be specially enforced, even at the suit of the lunatic against the sane party. I think the judgment should be reversed, but the majority think otherwise, and order the judgment A firmed. MIDDLEBOROUGH v. ROCHESTER. 601 law. But long before that time, namely, in July, 1798, the said Ebenezer had been declared to be non compos mentis by a decree of the judge of probate for the county of Plymouth, an inquisition having been first returned by the selectmen of Rochester, to the said judge, upon which he made his said decree, and issued letters of guardianship over the said Ebenezer and his estate, pursuant to law; and the said letters of guardianship had con- tinued unrevoked until the time of the trial. The said decree and proceedings were considered at the trial as prima facie evidence only, and both parties were permitted to give evidence touching the state of mind of the said Ebenezer at and about the time of said marriage; he not being a lunatic, but considered non compos for defect of understanding. The jury were instructed that, if upon all the evidence, includ- ing the decree and papers accompanying it, they were satisfied that he had sufficient understanding to be able to make a valid contract respecting property, or to deal with discretion in the common affairs of life, they should consider the marriage valid, and in that case return a verdict for the plaintiffs. But, if they were satisfied that he was not capable of so contracting, for want of intellect, they should find for the defendants. It was agreed by the parties, that, if, under these circumstances, the said Susannah gained a settlement in Rochester by the said marriage, the verdict should be set aside, and judgment be ren- dered for the plaintiffs for the sum by them demanded, with in- terest from the commencement of the suit and costs; otherwise, judgment should be rendered on the verdict that the defendants recover their costs. Wood, for the plaintiffs. Holmes, for the defendants. Parker, C. J., delivered the opinion of the Court. The verdict having established the fact, that Ebenezer Winslow, to whom the pauper was formerly married, was at the time of the solemni- zation void of understanding, so as to be incapable of making a valid contract, judgment must be entered for the defendants, unless a marriage, solemnized under such circumstances, will change the settlement of a female pauper from the place of her nativity to the place of her supposed husband’s settlement. No authority has been cited to show that such a marriage is valid to any intent or purpose whatever. On the contrary, it is laid 602 IDIOCY, LUNACY, ETC. down by Blackstone, that, like all other contracts, if made with a fool, or person non compos at the time of it, it is absolutely void.? And it is but reasonable that these unhappy persons, who are prohibited by law from making any binding contract for the merest pecuniary trifle, should be protected from the effects of a covenant of so high a nature, which never could be entered into by the other party without some base or sinister design. If it would be hard that the issue of such marriages should be deemed bastards, it would be as much so, that human beings, without reason, or their families, should be the victims of -the artifice of desperate persons who might be willing to speculate on their misfortunes.® Judgment according to the verdict. See next case and notes. WIGHTMAN v. WIGHTMAN. (4 Johns. Ch. 848. Court of Chancery of New York, February 29, 1820.) Marriage of Idiot or Lunatic, void. Decree of Nullity.— Though a marriage with 4 lunatic is absolutely void, yet, as well for the sake of the good order of society, as the quiet and relief of the party, its nullity should be declared by the decision of some Court of competent jurisdiction. And this Court, pos- sessing an exclusive jurisdiction over cases of lunacy and matrimonial causes, is the proper, and indeed, since there are no Ecclesiastical Courts having cog- nizance of such causes, the only tribunal to afford relief in such a case, and sustain a suit instituted to pronounce the nullity of the marriage. Therefore, where a person, insane at the time of her marriage, after her return to a lucid interval, refused to ratify or consummate it, and filed her bill to annul it, this Court decreed the marriage null and void, and the parties absolved from its obligation. So, where a marriage is unlawful and void ab initio, being con- ' trary to the law of nature, as between persons, ascendants or descendants, in the lineal line of consanguinity, or between brothers and sisters, in the col- lateral line, this Court will declare such a marriage, in a suit instituted for that purpose, null and void. Whether this Court, there being no statute regulat- ing marriages, or defining the prohibited degrees which render them unlawful, will go farther and declare marriages void between persons in the other degrees of collateral consanguinity or affinity, quere. 1 1 Black. Comm. 488. 2 See Rev. Stat. c. 75, § 5. 3 Poynter, 147; Browning v. Reame, 2 Phil. 69; Turner v. Meyers, 1 Haggard, 414, WIGHTMAN ¥. WIGHTMAN. 603 Tue bill, which was sworn to, stated that the plaintiff was mar- ried to the defendant on the 5th of July, 1814. That, at the time she was married, she was, as she is now informed and believes, in a state of insanity and mental derangement; and that she should never have consented to the marriage, if she had been in possession of her reason. That she continued insane, as she has been in- formed and believes, and so she charged the fact to be, for six months. That.she has never lived, or in any manner cohabited, with the defendant, as his wife, and can never consent to ratify the marriage. That she has since remained sole on account of the said supposed marriage; and she cannot, in conscience, con- tract marriage with any man, until that marriage is legally de- clared void. The plaintiff prayed that the marriage between her and the defendant might be declared null and void. The answer of the defendant, which was sworn to, admitted the marriage, and that the plaintiff was at the time in an actual state of insanity and mental derangement, as the defendant discovered immediately after the marriage. That the plaintiff refused to live or cohabit with the defendant, and has ever since refused to do so; and he consented that the marriage should be declared null and void, on account of such insanity of the plaintiff. S. Ford, for the plaintiff, and the defendant in proper person, after signing his acknowledgment before a Master, for that pur- pose, submitted the case to the Court, on the bill and answer. The case was ordered to be referred to a Master to examine into the truth of the allegations in the bill, and to report the testimony taken by him, with his opinion thereon. In pursuance of the order of reference, one of the Masters of this Court reported the proof taken before him; and that the defendant had notice of the time and place of the examination, and was present during part of the time. That from the testimony of several witnesses, among whom were the mother and step-father of the plain- tiff, the Master was of opinion that all the material allegations in the bill were fully proved and established. The cause was submitted for a final hearing, on the report of the Master, without argument. THE CHANCELLOR. The fact of insanity of the plaintiff at the time of the marriage, as charged in the bill, and the fact that the parties have never since lived together, or in any manner cohabited with each other, are proved to my satisfaction. It follows, as a 604 IDIOCY, LUNACY, ETC. necessary consequence from these facts, that the marriage was null and yoid from the beginning, by reason of the want of capac- ity in the plaintiff to contract, and has never since obtained any validity, because the plaintiff has never since the return of her lucid interval ratified or consummated it. It is too plain a proposition to be questioned, that idiots and lunatics are incapable of entering into the matrimonial contract. In Morrison’s case before the Delegates (cited in 1 Bl. Com. 439, and 1 Collinson on Lun. 554), it was held that the marriage of a lunatic, not being in a lucid interval, was absolutely void. I cite this case, not so much for the rule which it declares, as to show that, though such marriages be ipso facto void, yet that it is proper that there should be a judicial decision to that effect, by some Court of competent jurisdiction ; and that, in England, the Spiritual Court is the appropriate tribunal. I should presume that this was all that could have been intended by the common-law judges in Stiles v. West (cited in Sid. 112), where it was said, that, if an idiot contract marriage, it was good. In Ash’s case (Prec. in Ch. 203; 1 Eq. Cas. Abr. 278, pl. 6), the marriage of a lunatic was controverted in the Spiritual Court, and the Lord Keeper declared, in that case, that if a party contracted marriage when a lunatic, and agreed to it and consummated it in a lucid interval, it would be good. In Smart v. Taylor (9 Mod. 98), be- fore Lord Ch. MaccumsFieLp, it was taken for granted, and as- sumed as a settled proposition, that marriage by an idiot (and of course by a lunatic) was to be impeached in Doctor’s Commons. And in the late case, Hx parte Turing (1 Ves. & Beam. 140), it seemed to have been thought necessary, notwithstanding the Act of 15 Geo. II. c. 80, declaring every marriage of a lunatic void, that there should be a sentence of the Ecclesiastical Court to that effect. This statute could not have been introductory of a new rule, for every marriage of a lunatic must have been void at com- mon law, and by the law of reason ; “ Furor contrahi matrimonium non sinit, quia consensu opus est.” Dig. 23, 2, 16, 2. And Blackstone (1 Com. 439) considers it rather in the light of a declaratory law, and made on account of the difficulty of proving the exact state of the party’s mind at the marriage, and also on account of some private family reasons. The fitness and propriety of a judicial decision, pronouncing the nullity of such a marriage, is very apparent, and is equally WIGHTMAN ¥. WIGHTMAN. 605 conducive to good order and decorum, and to the peace and conscience of the party. The only question, then, is, To what Court does the jurisdiction of such a case belong? There must be a tribunal existing with us, competent to investigate such a charge and to afford the requisite relief; and the power, I apprehend, must reside in this Court, which has not only an exclusive jurisdiction over cases of lunacy, but over matrimonial causes. The chancery powers, in case of lunacy, have never been applied to this case, because there existed in England another and peculiar jurisdiction for the case; but, as such a jurisdiction does not exist here, the case seems to belong incidentally to the more general jurisdiction of this Court over those subjects. Whatever civil authority existed in the Ecclesi- astical Courts, touching this point, exists in this Court, or it exists nowhere, and all direct judicial power over the case is extinguished ; but that is hardly to be presumed. For the more full examination of this very interesting point of jurisdiction, let us suppose the abominable case of a marriage between parent and child, or other persons in the lineal or ascending and de- cending line, —is there no Court that can listen to the voice of nature and reason, and sustain a suit instituted purposely to declare such a marriage void? If a man marry his mother, or his sister, they are husband and wife, say the old cases, until a divorce, and the marriage be judicially dissolved. 389 Edw. III. 314; 9 Hen. VI. 84; 18Hen. VI. 32; Bro. tit. Bastardy, pl. 23 ; 1 Roll. Abr. 840, A. 1, 4; 357, A. 8. Are the principles of natural law and of Christian duty to be left unheeded and inoperative, because we have no Ecclesiastical Courts recognized by law, as specially charged with the cognizance of such matters ? All matrimonial and other causes of ecclesiastical cognizance belonged originally to the temporal Courts (vide the case of Legitimation and Bastardy, Sir J. Davies’s Rep. 140, and his argu- ment in the case of Premunire, id. 273) ; and when the spiritual Courts cease, the cognizance of such causes would seem, as of course, to revert back to the lay tribunals. I apprehend, then, that the power is necessarily cast upon this Court, which has, by statute, the sole jurisdiction over the marriage contract in certain specified cases. The legislature has, in that respect, pointed to this Court as the proper organ of such a jurisdiction. We are placed in a singular situation in this State, and prob- 606 IDIOCY, LUNACY, ETC. ably one unexampled in the Christian world; since we have no statute regulating marriage, or prescribing the solemnities of it, or defining the forbidden degrees. It remains to be settled, not only where the jurisdiction in some of these cases resides, but what are the sound and binding principles of common law under which that jurisdiction is to be exercised. It was said by Vaucnan, C. J., in Harrison v. Buswell (Vaug. 206, 2 Vent. 9,s. c.), in delivering the opinion, which he declared to be given upon consultation with all the judges of England, that, by the ancient common law, some marriages were within forbidden degrees and unlawful, and that the cognizance of such questions belonged to the spiritual Courts. But he observed that, if it were not for the Statutes of Hen. VIII. (and which we have not re-enacted), it would be difficult to prove that they were civilly bound by the Levitical degrees, in respect to the lawfulness of marriage connections, unless the prohibition was also clearly dictated by the natural law. He held that marriage in the ascending and descending line, as between parents and children, were monstrous connections, and repugnant to the law of nature; and that so far the Levitical was a moral, as contra- distinguished from a positive, prohibition to the Jews, and binding upon all mankind. Divorces a vinculo, says Lord Coke (1 Inst. 235 a), are causa metus, causa impotentic, causa afinitatis, causa consanguinitatis, &c. (Vide also the case of the Earl of Essex, divorced in the Court of Delegates, and Bury’s case, 1 St. Tr. 315, 10 St. Tr. App. 23, Harg. edit.) These cases, and that of lunacy, are not within the statute giving to this Court jurisdiction concerning divorces ; for the stat- ute, in respect to divorces a vinculo matrimonii, gnly applies to adultery. All the causes for divorce specified in our statute are those which arise subsequent to the marriage, and suppose it to have been lawful in the beginning. But I presume every one will readily admit, that there are other causes which render the marriage unlawful ab initio ; such as lunacy, idiocy, duress, consanguinity, &c.; and the question is, whether we have not a Court which is competent, not merely collaterally, but by a suit instituted directly, and for the sole purpose, to pronounce a divorce in such cases. The principles of canonical jurisprudence, and the rules of the common law, are the same in respect to some of those strong in- stances which I have mentioned, and there must be a tribunal to WIGHTMAN v. WIGHTMAN. 607 apply them. If it were otherwise, there would be a most deplora- ble and distressing imperfection in the administration of justice. Besides the case of lunacy now before me, I have, hypotheti- cally, mentioned the case of a marriage between persons in the direct lineal line of consanguinity, as clearly unlawful by the law of the land, independent of any church canon, or of any statute prohibition. That such a marriage is criminal and void by the law of nature, is a point universally conceded. And, by the law of nature, I understand those fit and just rules of conduct which the Creator has prescribed to man, as a dependent and social being ; and which are to be ascertained from the deductions of right reason, though they may be more precisely known, and more explicitly declared, by divine revelation. There is one other case in which the marriage would be equally void causa consanguinitatis, and that is the case of brother and sister; and, since it naturally arises in the consideration of this subject, I will venture to add a few incidental observations. I am aware, that, when we leave the lineal line, and come to the relation by blood or affinity in the collateral line, it is not so easy to ascertain the exact point at which the natural law has ceased to discountenance the union. Though there may be some difference in the theories of different writers on the law of nature, in regard to this subject, yet the general current of authority, and the practice of civilized nations, and, certainly, of the whole Christian world, have con- demned the connection in the second case which has been sup- posed, as grossly indecent, immoral, and incestuous, and inimical to the purity and happiness of families, and as forbidden by the law of nature. Grotius de Jure, &c. lib. 2, c. 5, § 18; Puffend. de Jure Gent. lib. 6, c. 1, §§ 84; Id. de Off. Hom. lib. 2, c. 2, § 8; Heinec. Op. tom. 8, pars 2, p. 203; Taylor’s Elem. Civ. Law, 326; Montesq. Hsp. des Loiz, liv. 26,¢.14; Paley’s Moral Philosophy, b. 3, part 3,c.5. We accordingly find such connections expressly prohibited in different codes. Dig. lib. 28, tit. 2, 18; lib. 28, tit. 2,1, 14,§ 2; lib. 45, tit. 1,1. 35, § 1; Just. Inst. lib. 1, tit. 10; De Nuptiis, Vinnius, h. t.; Heinec. ubi supra ; Code Civile de France, n. 161-164; Inst. of Menu, by Sir William Jones, c. 3, § 5; Staunton’s Ta-Tsing-Leu-Lee, §§ 107, 108; Sale’s Koran, c. 4; Marsden’s Sumatra, p. 194, 221. And whatever may have been the practice of some ancient nations, originating, as Montesquieu observes, in the madness of superstition, the objection to such mar- 608 IDIOCY, LUNACY, ETC. riages is undoubtedly founded in reason and nature. It grows out of the institution of families, and the rights and duties, habits and affections, flowing from that relation, and which may justly be con- sidered as part of the law of our nature as rational and social be- ings. Marriages among such near relations would not only lead to domestic licentiousness, but, by blending in one object duties and feelings incompatible with each other, would perplex and con- found the duties, habits, and affections proceeding from the family state, impair the perception and corrupt the purity of moral taste, and do violence to the moral sentiments of mankind. Indeed, we might infer the sense of mankind, and the dictates of reason and nature, from the language of horror and detestation in which such incestuous connections have been reprobated and condemned in allages. Plato de Leg. lib. 8; Cie. Orat. pro. Mil. 27; Hermion. in Eurip. Androm. v. 115; Byblis. Ovid. Met. lib. 9; Tacit. Ann. lib. 12, ¢.4; Vell. Paterc. Hist. lib. 2,¢. 45; Corn. Nep. Excel. Imp. Prefat. The general usage of mankind is sufficient to settle the ques- tion, if it were possible to have any doubt on the subject; and it must have proceeded from some strong, uniform, and natural prin- ciple. Prohibitions of the natural law are of absolute, uniform, and universal obligation. They become rules of the common law, which is founded in the common reason and acknowledged duty of mankind, sanctioned by immemorial usage, and, as such, are clearly binding. To this extent, then, I apprehend it to be within the power and within the duty of this Court, to enforce the prohibition. Such marriages should be declared void, as contra bonos mores. But, as to the other collateral degrees beyond brother and sister, I should incline to the intimation of the judges in Harrison v. Buswell, already cited, that, as we have no statute on the subject, and no train of common-law decisions, indepen- dent of any statute authority, the Levitical degrees are not bind- ing as a rule of municipal obedience. Marriages out of the lineal line, and in the collateral line beyond the degree of brothers and sisters, could not well be declared void, as against the first prin- ciples of society. The laws or usages of all the nations to whom I have referred do, indeed, extend the prohibition to remoter degrees ; but this is stepping out of the family circle, and I can- not put the prohibition on any other ground than positive institu- tion, There is a great diversity of usage on this subject. “ Neque WIGHTMAN ¥v. WIGHTMAN. 609 teneo, neque dicta refello.” The limitation must be left, until the legislature thinks proper to make some provision in the case, to the injunctions of religion, and to the control of manners and opinion. I have been led further than I at first intended, by these re- marks, which have been made merely by way of argument and in illustration of the question touching the power and duty of the Court to declare void the marriage of the lunatic in the case before me. I trust I have shown that there must exist such a power for this and other cases ; and JI, also, trust that this Court will never be under the painful necessity of making a more solemn and direct application of the doctrine. I shall, accordingly, declare the marriage null and void, and that the parties are free from the obligations of marriage with each other. That the marriage of parties, one of whom was insane or an idiot at the time of its celebration, is void, in dis- tinction from voidable, at least so far as to be subject to impeachment, either in a suit directly between the parties or collaterally, and that during the life of the parties or afterwards, seems to be established by the weight of authority. Ex parte Turing, 1 Ves. & Bea. 140; Middleborough v. Rochester, 12 Mass. 363 (ante, p. 600) ; Browning v. Reane, 2 Phillim. 69; Turner v. Meyers, 1 Hag. Con. 414; Foster v. Means, 1 Speers’s Eq. 569; Johnson v. Kincade, 2 Ired. Eq. 470; Crump v. Morgan, 3 Tred. Eq. 91; Clement v. Mattison, 3 Rich, 93; Jenkins v. Jenkins, 2 Dana, 102; Goshen v. Richmond, 4 Allen, 458; Jacques v. Public Administrator, 1 Bradf. 499; Rawdon v. Rawdon, 28 Ala. 565; Ward v. Dulaney, 23 Miss. 410; Mountholly v. Andover, 11 Vt. 226; 1 Bl. Com. 438. A decree of nullity, however, though exceedingly proper, does not seem to be necessary ; and the principal case of Wightman v. Wightman does not seem to insist upon the necessity, but only upon the expediency and propriety, of such a 39 Decree accordingly. decree. See Mountholly v, Andover (supra) ; Rawdon v. Rawdon, 28 Ala. 565; 1 Bish. Mar. & Div. (Sth ed.) § 136. There is, however, some conflict and inconsistency among the authorities on the question whether such a marriage is or is not absolutely and wholly void. If it is absolutely void, it would seem to follow, as a logical consequence, that subsequent acts after restoration to san- ity, not amounting in themselves to a marriage, would not make that good which was bad in the beginning; and this view finds some support in the opin- ion of text-writers and judges. See Poynter, Mar. & Div. 157; Crump v. Morgan, 3 Ired. Eq. 91; Ward »v. Dulaney, 23 Miss. 410. But, perhaps, the weight of opinion may be considered to tend towards es- tablishing the doctrine that such a mar- riage, properly celebrated in point of form, is not so absolutely void as to be incapable of being rendered valid by acts of the insane party recognizing its validity after restoration to reason, without any new solemnization; and this both at common law and where certain formalities are requisite to con- 610 stitute a valid marriage, such formali- ties and consent not being deemed necessary to concur in point of time. This subject is very thoroughly dis- cussed by Mr. Bishop in 1 Bish. Mar. & Div. (Sth ed.) § 139 et seq., who favors the latter proposition. See also Cole v. Cole, 5 Sneed, 57; Koonce ». Wallace, 7 Jones, Law, 194; Shelford, Mar. & Div. 197, referring to Ashe’s case, Pr. Ch. 708; Freem. C. C. 259. As to the degree of mind requisite to enable a person to enter into a valid contract of matrimony, it is believed that the rule is the same as with refer- ence to contracts in general. In Browning v. Reane, 2 Phillim. 69, Sir Joun NicHoit, after quoting 1 Bl. Com. 438, says: ‘‘ Here, then, the law, and the good sense of the law, are clear- ly laid down; want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent. It is not material whether the want of con- sent arises from idiocy or lunacy, or from both combined; nor does it seem necessary, in this case, to enter into any disquisition of what is idiocy, and what is lunacy; complete idiocy, total fatuity from birth, rarely occurs; a IDIOCY, LUNACY, ETC. much more common case is mental weakness and imbecility, increased as a person grows up and advances in age, from supervening causes, so as to pro- duce unsoundness of mind. Objects of this sort have occurred to the obser- vation of most people. If the inca- pacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such person cannot dispose of her person and property by the matrimonial con- tract. The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be dif- ficult, in most cases, to decide upon the result of the circumstances.” See At- kinson v. Medford, 46 Me. 510; Anonymous, 4 Pick. 32; Ward v. Du- laney, 23 Miss. 410; Cole v. Cole, 5 Sneed, 57; Turner v. Meyers, 1 Hag. Con. 414; Hancock v. Peaty, L. R. 1 P. & D. 335. See also Hamaker v. Hamaker, 18 Ill. 1387; Parker v. Parker, 2 Lee, 382; 1 Bish. Mar. & Div. (5th ed.) § 127 et seq., where the subject is fully considered. SEAVER v. PHELPS. (11 Pick. 304. Supreme Judicial Court of Massachusetts, September 23, 1831.) Executed Contracts of Insane Persons ; when Rescindable.—In trover for a prom- issory note, pledged to the defendant by the plaintiff when he was insane, it is not a legal defence that the defendant at the time when he took the pledge, was not apprised of the plaintiff's being insane, and had no reason to suspect it, and did not overreach him, nor practise any fraud or unfairness. Trover, to recover the value of a promissory note, pledged by the plaintiff to the defendant. The suit was brought on the ground that the plaintiff was in a state of insanity at the time when he made the pledge. At the trial in the Common Pleas, SEAVER v. PHELPS. 611 before Witttams, J., the counsel for the defendant requested the judge to instruct the jury, that although they should believe the plaintiff was insane and incapable of understanding at the time of making the contract, yet that if the defendant was not ap- prised of that fact, or had no reason, from the conduct of the plaintiff or from any other source, to suspect it, and did not overreach or impose upon the plaintiff, or practise any fraud or unfairness, then the contract was not to be annulled. But the judge held this not to be law, and instructed the jury otherwise ; and the jury returned a verdict for the plaintiff. To this opinion the defendant excepted. Willard, in support of the exceptions, cited Beverley’s case, 4 Co. 124; Niell v. Morley, 9 Ves. 478; Chitty on Contr. 255, cites Bagster v. Earl of Portsmouth, 7 Dowl. & Ryl. 614. G. Bliss and G. Ashmun, for the plaintiff, cited Chitty on Contr. 29, 80; Mitchell v. Kingman, 5 Pick. 481; Webster v. Woodford, 8 Day, 90; Lang v. Whidden, 2 N. H. 485; Grant v. Thompson, 4 Conn. 203; Rice v. Peet, 15 Johns. 503. WILpE, J., delivered the opinion of the Court. The general doctrine that the contracts, and other acts in pais, of idiots and insane persons, are not binding in law or equity, is not denied. Being bereft of reason and understanding, they are considered incapable of consenting to a contract, or of doing any other valid act. And although their contracts are not generally absolutely void, but only voidable, the law takes care effectually and fully to protect their interests; and will allow them to plead their disa- bility in avoidance of their conveyances, purchases, and contracts, as was settled in Mitchell e¢ al. v. Kingman, 5 Pick. 481. And such is probably the law in England at the present day, although the doctrine for a long time prevailed there, that no one should be allowed to plead his own incapacity and to stultify himself. These principles are not controverted by the defendant's coun- sel; but they maintain, that if the plaintiff was of unsound mind and incapable of understanding, at the time he pledged the note to the defendant, yet if the defendant was not apprised of that fact, or had no reason to suspect it from the plaintiff’s conduct, or from any other source, and did not overreach him, or practise any fraud or unfairness, then that the contract of bailment was valid and.,binding, and could not be avoided in the present action. And they requested the Court of Common Pleas so to 612 IDIOCY, LUNACY, ETC. instruct the jury. That Court, however, were of opinion that the law was otherwise, and we all concur in the same opinion. If it had been only proved that the plaintiff was a person of weak understanding, thg instructions requested would have been appropriate and proper. For every man, after arriving at full age, whether wise or unwise, if he be compos mentis, has the capacity and power of contracting and disposing of his property, and his contracts and conveyances will be valid and binding, pro- vided no undue advantage be taken of his imbecility. It is sometimes difficult to determine what constitutes insanity, and to distinguish between that and great weakness of under- . standing. The boundary between them may be very narrow, and in fact often is, although the legal consequences and pro- visions attached to the one and the other respectively are widely different. In the present case, however, this point is settled by the ver- dict, and no question is made respecting it. We are to consider the plaintiff as in a state of insanity at the time he pledged his note to the defendant; and, this being admitted, we think it cannot avail him, as a legal defence, to show that he was ignorant of the fact, and practised no imposition. The fairness of the defendant’s conduct cannot supply the plaintiff’s want of capacity. The defendant’s counsel rely principally on a distinc- tion between contracts executed, and those which are executory. But if this distinction were material, we do not perceive how it is made to appear that the contract of bailment is an executed contract; for if the note was pledged to secure the performance of an executory contract, and was part of the same transaction, it would rather be considered an executory contract. But we do not consider the distinction at all material. It is well settled that the conveyances of a non compos are voidable, and may be avoided by the writ dum fuit non compos mentis, or by entry. The case of Bagster et al. v. The Earl of Portsmouth, 5 Barn. & Cress. 172, but more fully reported in 7 Dowl. & Ryl. 614, has been relied on as countenancing the distinction contended for, and to show its bearing on the point in question; and it is true that some of the remarks which fell from the Court in giving their opinion may be thought to have some bearing in this respect. But the point decided, and the grounds of the de- cision, not only fail to support the defence in this action, but SEAVER v. PHELPS. 613 may be considered as an authority in favor of the plaintiff. This was an action of assumpsit for the use of certain carriages hired by the defendant, he being at the time of unsound mind, and judgment was rendered for the plaintiff, on the ground that no imposition had been practised on his part; and particularly because the carriages furnished appeared to be suitable to the condition and degree of the defendant, considering the contracts of a non compos on the same footing as those of an infant; and the Court say in Thompson v. Leach, 8 Mod. 310, “that the grants of infants, and of persons non compos, are parallel both in law and reason.” Now no one would, we apprehend, undertake to maintain that the plaintiff would have been bound, if he had been a minor when he pledged the note. It does not appear to have been pledged for necessaries; and all contracts of infants are either void or voidable, unless made for education or neces- saries suitable to their degree and condition. And even if the note had been pledged as security for the payment of necessaries, it would not have been binding if the plaintiff had been an in- fant. For a pledge is in the nature of a penalty, and may be forfeited; and can be of no advantage to the infant, and therefore shall not bind him. If, then, idiots and insane persons are liable on their con- tracts for necessaries, they are certainly entitled to as much protection as infants. It matters not, however, how this may be, since the contract in question is not one for necessaries. In the case of Browne v. Joddrell, 1 Moody & Malkin, 105, Lord TENDERDEN expressed an opinion, that in assumpsit for goods sold and delivered, and for work and labor, it would be no defence that the defendant was of unsound mind, unless the plaintiff knew of, or in any way took advantage of, his in- capacity, to impose on him. This, however, was an opinion expressed at nist prius, and whether the opinion was followed up to the final decision of the cause or not, does not appear. But, however this may be, the opinion is founded on the old rule, somewhat qualified, that no one can be allowed to plead his own disability or incapacity, in avoidance of his contracts. This rule having been wholly exploded in this commonwealth, Lord TENTERDEN’S opinion can have no weight here, unless some good reason could be shown for overruling the case of Mitchell et al. v. Kingman, which we think cannot be done. 614 IDIOCY, LUNACY, ETC. We are aware that insanity is sometimes hard to detect, and that persons dealing with the insane may be subjected to loss and difficulty, but so they may be by dealing with minors. The danger, however, cannot be great, and seems to furnish no suffi- cient cause for modifying the rules of law in relation to insane people, if we had any power and authority so to do; which we have not. Judgment of C. C. P. affirmed. See next case and notes. Mouton v. Camroux. (2 Exch. 487; s.c. affirmed in 4 Exch. 17. Court of Exchequer, June 13, 1848.) Executed Contracts of Insane Persons: when Rescindable. — Where a person apparently of sound mind, and not known to be otherwise, enters into a con- tract which is fair and bond fide, and which is executed and completed, and the property, the subject-matter of the contract, cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic, or those who represent him. Therefore, where a lunatic purchased certain annuities for his life of a society which, at the time, had no knowledge of his unsoundness of mind, the transaction being in the or- dinary course of the affairs of human life, and fair and bond fide on the part of the society, — held, that, after the death of the lunatic, his personal repre- sentatives could not recover back the premiums paid for the annuities. ‘The grantee of an annuity cannot take advantage of the want of enrollment of a memorial, as required by the 53 Geo. III. c. 141. Assumpsit by the plaintiff, as administratrix of Thomas Lee, against the defendant, as secretary of the National Loan Fund Life Assurance Company, for money had and received to the use of Thomas Lee, and of the plaintiff as his administratrix, and on, an account stated. Plea, — non assumpsit. At the trial of the cause, before Pottock, C. B., at the London sittings after Michaelmas Term, 1846, the jury found certain facts, and the plaintiffs had a verdict, leave being reserved to enter a nonsuit. ‘ -MOLTON v. CAMROUX. 615 Gurney, in Hilary Term, 1847, obtained a rule nist, in pur- suance of leave reserved, with leave to turn the facts into a special verdict. A special verdict was agreed upon, which em- bodied the following facts : — The present action was brought to recover from the defendant, the secretary of the National Loan Fund Life Assurance Society, two sums of 3501, and 51. 6s. 2d., which had been paid by Thomas Lee, the deceased, to the society, under the following circumstances. Thomas Lee, on the 29th of August, 1848, made a proposal to the said society for the purchase of an annuity of 217. 12s. 10d. for his life, payable yearly on the 29th of August, the first pay- ment to be made on the 29th of August in the following year, and that he should pay the sum of 850/., as the consideration of that annuity ; and on the same day he made a proposal to the said society for the purchase of a deferred annuity of 301. for his life, to commence on his attaining the age of sixty years, which would be on the 30th of June, 1864, the first payment to be on the 30th of June, 1865, reserving to him ‘the option of receiving, in lieu of such annuity, the sum of 2931. 5s. payable immediately, or the deferred sum of 3771. 5s., to be paid to his representatives after his death. The proposals were assented to and accepted by the society, and the terms of the agreements were embodied in two policies of insurance, bearing date respectively the 29th of August, 1843. The sums agreed upon of 350/. and 51. 6s. 2d., were then paid by the deceased, who subsequently died intestate in 1844. No memorial of these annuities had ever been enrolled in the High Court of Chancery. At the time of the making of these proposals, and of the assénting thereto and acceptance thereof, and of the granting of the said annuities, and of the pay- ment of the said sums by Thomas Lee, the intestate, he was a lunatic, and of unsound mind, so as to be incompetent to manage his affairs ; but of this the society had not at that time any knowl- edge. The purchases of the annuities by Thomas Lee were trans- actions in the ordinary course of the affairs of human life, and the granting of the annuities to him in the manner and upon the terms before mentioned, were fair transactions, and transactions of good faith on the part of the society, and in the ordinary course of their business; and at the time of making the proposals, and at the time they were assented to and accepted by the society, 616 IDIOCY, LUNACY, ETC. and of the granting of the annuities and of the payment of the two sums by him, he appeared to the society to be of sound, though he was then in fact of such unsound mind, as aforesaid. The society first had notice of the unsoundness of mind of the grantee by letter dated the 23d of September, 1843, from his solicitors. No commission of lunacy had ever been issued against the grantee. The society had never made any payments in respect of the annuities in question, but had always been ready and will- ing to pay any sum which might have become due under them, and had never attempted to avoid the agreements. The plaintiff’s points were, that the.said Thomas Lee, being of unsound mind, could not make a valid contract of the nature set forth in the verdict; and, secondly, that the supposed con- tracts were void by statute, for want of enrollment. And there- fore that the plaintiffs were entitled to recover back the sums of money so paid. The case was argued in Hilary Term, on the 17th and 21st of January, by Needham, for the plaintiffs. The present case raises two questions for the opinion of this Court. First, whether the personal repre- sentatives of a lunatic can recover money which he has paid under a contract with a person who has entered into it bond fide, and without knowledge of the lunacy. Secondly, whether the annuity granted is void for want of enrollment. Upon the first point there is no direct authority ; but there are many authorities in support of the principle that a lunatic cannot make a contract to bind his property. Thus the old writ of dum fuit non compos mentis lay to recover back land which had been aliened by a person not in his right mind, Fitz. Nat. Brev. 202 (C); and it has been held, that a person non compos mentis cannot either make or revoke a will, 6 Rep. 23, and the Courts have always held their wills to be void. Nor can a lunatic suffer a recovery, Hume v. Burton, 1 Ridg. Parl. Cas. 16; Keene v. Keene, ibid. 91; nor execute a deed, Yates v. Boen, 2 Stra. 1104; nor a bond, Faulder v. Silk, 3 Camp. 126; so he cannot indorse a bill of exchange, Alcock v. Alcock, 3 M. & Gr. 268;1 nor state an account, Tarbuck »v. Bispham, 2M. & W. 2. The rule is the same as respects parol contracts. In Palmer v. Parkhurst, 1 Ch. Cas. 112, a bargain by a lunatic, eight years before the lunacy found, was avoided by 2 E.C. L. R vol. 42. MOLTON v. CAMROUX. 617 the party being found a lunatic. [Parxe, B. Was it suggested in that case, that it was known by the defendant, at the time of the bargain, that the party was a lunatic ?] It does not appear by the report whether or not he was acquainted with the lunacy. [Parke, B. We are not able to tell what the form of the plea was in Alcock v. Alcock; it does not appear whether there was any allegation of notice or knowledge of the lunacy.] The principle for which the plaintiff now contends is, that a lunatic cannot enter into a binding contract, as he cannot have a con- senting mind. [Puatr, B. In Dane v. Viscountess Kirkwall, 8 C. & P. 685,! it was held by Parreson, J., at nist prius, that it was not sufficient to show that Lady Kirkwall was of unsound mind, but that the jury must be satisfied that the plaintiff knew it and took advantage of it. That ruling was subsequently up- held by the Court of Queen’s Bench, in the same case.) In Clerk v. Clerk, 2 Vern. 212, it was held, that a family settlement made by a lunatic ought to be set aside, although it was reason- able and for the convenience of the family. So the marriage of a lunatic is void. Turner v. Myers, 1 Hagg. C. 414. There Sir W. Scort says: “It is, I conceive, perfectly clear in law, that a party may come forward to maintain his own past incapacity ; and also that a defect of incapacity invalidates the contract of marriage as well as any other contract.” In Howard v. Lord Digby, 2 Cl. & Fin. 661, Brovenam, L. C., says: “ The law on this point is as clear, both in equity and in lunacy, and at com- mon law, as that a man’s eldest legitimate son is his heir to free- hold land. A lunatic cannot bind himself by bond or by bill; a lunatic cannot release a debt by specialty ; cannot be a cognizor in a statute merchant, staple, a judgment, warrant of attorney, or any other security.” [Po.iocx, C. B. Surely a payment by a lunatic would be a good answer to the debt for which the lunatic was liable before his lunacy.] The defence of intoxication stands upon the same principle as that of lunacy; and in the recent case of Gore v. Gibson, 13 M. & W. 623, this Court held, that acts - done by a man who had lost his senses at the time are totally void. [Parxse,B. The ancient doctrine, that no man of full age shall be permitted to stultify himself, has been much qualified and restricted in modern times. There is a learned note on this subject, at the end of the report of Gore v. Gibson, in the Jurist, 15. C. L. R., vol. 34. 618 » IDIOCY, LUNACY, ETC. vol. 9, p. 142. A.person, B. There is this distinction between the case of lunacy and that of intoxication, —in the latter the in- capacity of the party is patent; in the former, it may not be in the least degree visible.] In one respect, the two cases are analogous, in neither of them has the sufferer a consenting mind. A lunatic is not criminally liable. Reg. v. Oxford, 9 C. & P. 525.1 [ParKE, B. It has been held that a lunatic innkeeper is liable for the loss of his guest’s goods. Cross v. Andrews, Cro. Eliz. 622.] There ure three exceptions to be found to the rule contended for in the case of lunacy; but these exceptions will, perhaps, be found to strengthen the rule. A fine levied by a person non compos mentis has been held good, Thompson v. Leach, 3 Mod. 305 ; Needles v. The Bishop of Winchester, Hob. 220; and the reason, as it appears from Beverley’s case, 4 Rep. 124, is, that the act is of a public and notorious character, done in a Court of record, and that the Court had the power of judging of the sanity of the party. This is confirmed by Stat. 18 Ed. I. § 4, the Modus levandi fines, and 10 Ed. II. De finibus, and by Mansfield’s case, 12 Rep. 124, where a fine had been made by one Bushley, an idiot, “but notwithstanding this, and although the monstrous deformity and idiocy of Bushley was apparent and visible, yet the fine stood good.” The second exception to the general rule is that of a feoffment by a lunatic. Thompson v. Leach, Carth. 435. The Court there said: ‘¢ There is a difference between a feoffment and a livery made propriis manibus of an idiot, and the bare ex- ecution of a deed by sealing and delivery thereof, as in cases of surrenders, grants, releases, &c., which have their strength only by executing them, and in which the formality of livery and seisin is not so much regarded in law, and therefore the feoffment is not merely void, but voidable ; but surrenders, grants, &c., by an idiot, are void ab initio.” The third exception is that of neces- saries ; but these are clearly excepted from the general rule, on the ground that they do not require a consenting mind. Thus, an infant or an idiot may be liable for necessaries, as was said in Manby »v. Scott, 1 Sid. 112. The contracts, however, of an infant are only voidable, and not void. Baxter v. Lord Portsmouth, 5 B. & C. 170,? is a leading case upon this branch of the subject. Assort, C. J., there says: “ At the time the orders were given and executed, Lord Portsmouth was living with his family, and 1E.C.L. B., vol. 38 2 Tb. 11. MOLTON v. CAMROUX. 619 there was no reason to suppose that the plaintiffs knew of his in- sanity. I thought the case very distinguishable from an attempt to enforce a contract not executed, or one made under circum- stances which might have induced a reasonable person to suppose the defendant of unsound mind. The latter would be cases of imposition ; and I desired that my judgment might not be taken to be, that such contracts would bind, although I was not pre- pared to say that they would not.” In Gore v. Gibson, 13 M. & W. 623, the distinction is clearly pointed out; namely, that, to make a party liable for necessaries, it is not necessary that there should be the assent of both parties. Poxiocg, C. B., there says: * With regard, however, to contracts which it is sought to avoid on the ground of intoxication, there is a distinction between express and implied contracts. Where the right of action is grounded upon a specific distinct contract, requiring the assent of both parties, and one of them is incapable of assenting, in such a case there can be no binding contract; but in many cases the law does not require an actual agreement between the parties, but implies a contract from the circumstances; in fact the law itself makes the contract for the parties. Thus, in actions for money had and received to the plaintiff’s use, or money paid by him to the defendant’s use, the action may lie against the defendant, even though he may have protested against such a contract. So, a tradesman who supplies a drunken man with necessaries may recover the price of them, if the party keeps them when he be- comes sober, although a count for goods bargained and sold would fail. In this case, the defendant is still liable for the con- sideration for his indorsement, although the indorsement itself can give the plaintiff no title.’ [Parxe, B. A fourth exception is mentioned in Beverley’s case; viz., a recognizance. ALDERSON, B. Suppose the lunatic is benefited, do you argue that in such a case the contract is void?] It is submitted that it would be. [He also referred to Neill ». Morley, 9 Ves. Jur. 478, and Kent’s Commentary, 451.] In Turner v. Myers, 1 Hage. C. 414, Sir W. Scort says: “It is, I conceive, perfectly clear in law, that a party may come forward to maintain his own past incapacity, and also, that a defect of incapacity invalidates the contract of mariage, as well as any other contract. It is true, that there are some obscure dicta in the earlier commentators on the law 620 IDIOCY, LUNACY, ETC. (Sanchez, lib. 1, disp. 8, num. 15), that a marriage of an insane person could not be invalidated on that account; founded, I presume, on some notion that prevailed, in the dark ages, of the mysterious nature of the contract of marriage, in which its spirit- ual nature almost entirely obliterated its civil character. In modern times, it has been considered in its proper light, as a civil contract as well as a religious vow, and, like all civil contracts, will be invalidated by want of consent of capable persons.” [Pottock, C. B. I recollect a case where a marriage was set aside, although there was no appearance of lunacy at the time of the offer of marriage.] Pothier, in his Treatise on Obligations, P.1,c. 1, § 1, art. 1, says: “A contract is a particular kind of agreement; to understand the nature of a contract, we should, therefore, previously understand the nature of an agreement. An agreement is the consent of two or more persons to form some engagement, or to rescind or modify an engagement already made, ‘Duorum vel plurium in idem placitum consensus.’” Again, in speaking of persons capable or incapable of contracting, he says (id. art. 4): “ The essence of a contract consisting in consent, it follows that a person must be capable of giving his consent, and, consequently, must have the use of his reason, in order to be able to contract.” In the appendix to that article, the distinction is pointed out between persons incapable by law of contracting, and those incapable by nature. Secondly, the annuity is void, for want of the enrollment of a memorial, in pursuance of the Stat. 53 Geo. III. c. 141. ... Gurney, for the defendant. It is conceded that an unexecuted contract by a lunatic cannot be enforced ; but there is no case in which an executed contract, made for valuable consideration, and without notice of fraud, has been held void. In Palmer ». Parkhurst, Ch. Cas. 112, the bill charged that the pretended satisfaction was not valuable, and was done in prejudice of the lunatic ; the answer did not state it to be valuable. In Clerk v. Clerk, 2 Vern. 413, the conveyance was voluntary and without consideration. In Addison v. Dawson, id. 678, fraud was alleged and proved. Howard v. Digby, 2 Cl. & Fin. 634, shows that the law will sometimes imply a contract, notwithstanding lunacy. The earlier cases do not proceed on the ground, now exploded, that a lunatic cannot stultify himself, but that such contracts MOLTON v. CAMROUX. 621 are not fair and equal between the parties. On that principle, an exchange, if equal, was held good. Perkins, in his Profitable Book, tit. Exchange, pl. 298, says: “‘ And if a man of unsound memory, being seised of land in fee, exchanges the same with a stranger for other land in fee, and the exchange is executed, and he of unsound memory dies, and his heir enters into the land taken in exchange by his father, now he shall not avoid this exchange.” So with respect to partition, in Co. Litt. 166 a, it is said: ‘* If coparceners make partition at full age, and unmarried and of sane memorie, of lands in fee simple, it is good and firm forever, albeit the values be unequal; but if it be of lands entailed, or if any of the parceners be of non sane memorie, it shall bind the parties themselves, but not their issue, unless it be equal.” Also in Bac. Abr. tit. Idiots and Lunatics (F.), it is said: “ The feoffment of an idiot or non compos is not void, but voidable ; but it cannot be avoided by himself, by entry, &c. ; and the reason hereof, given in some books, is, as before observed, because no man by law is permitted to disable himself. The better reason in this case seems to be, that, anciently, these feoffments were not only made for the benefit of the parties, but of the realm, being annually paid for by the attendance of the tenants, in military service or in tillage, and so were presumed to be equally for the benefit of the lord and tenant; and, there- fore, they were not holden to be void in themselves.”” A lunatic may grant by fine; for, that proceeding having formerly taken place before a judge, he was presumed to guard against any unfair advantage being taken of the lunatic. Murley v. Sherran, 8A. & E. 7541 [Parxe, B. Was it not rather that the judge was supposed to take care that the party was in a fit state of mind?] The form of pleas in avoidance of contracts, on the ground of lunacy or drunkenness, shows that the inquiry in those cases is as to the transaction being fair ; for such pleas invariably contain an averment of notice. Dane v. Viscountess Kirkwall, 8 C. & P. 679,2 Gore v. Gibson, 18 M. & W. 623. In Sentance v. Pool, 3 C. & P. 1,3 where the defence of imbecility of mind was set up in an action by indorsee against maker of a promissory note, Lord TrenTERDEN told the jury, that, ‘‘ should they be satis- fied that the defendant was not conscious of what he was doing, 1E.C. L. B., vol. 35. 2. Id. 84. 3 Id. 14, 622 IDIOCY, LUNACY, ETC. and that he was imposed upon by reason of his imbecility of mind, they ought to find for him.” That learned judge evidently considered, that the mere fact of being imbecile was not sufficient to avoid the contract, without showing that an unfair advantage had been taken. ‘There is no distinction in principle between a contract by a lunatic for necessaries or for any other purpose, except that necessaries are evidence to show the fairness of the contract. It is true that Baxter v. The Earl of Portsmouth, 5 B. & C. 170,! was a case of necessaries; but the judgment of Lord TENTERDEN proceeds on the ground, that the only contracts open to dispute are those not executed, or made under circumstances which might have induced a reasonable person to suppose the party was of unsound mind. Williams v. Wentworth, 5 Beav. 325, shows that, in the case of necessaries supplied to a lunatic, the law will imply a promise to pay. In Browne v. Joddrell, 3 C. & P. 30,2 the defendant was charged on a contract, as a member of an institution ; and Lord TrnterpeN ruled that un- soundness of mind was no defence, unless it were shown that the plaintiff imposed on thedefendant. Reference is there made toa case of Levy v. Baker, in which the ruling of Bssr, J., is to the same effect. Dane v. Viscountess Kirkwall, and Clarke v. Metcalf,? are also cases in which lunatics were held liable on contracts, though not for necessaries. No case has yet decided, that an executed contract, if fair and bona fide, can be questioned on the ground of the lunacy of one of the parties. It is said that a lunatic is not criminally responsible; but the more correct statement would be, that a person being a lunatic cannot be guilty of that which amounts to murder or high treason. [PaARKE, B. In Beverley’s case, 4 Rep. 123 a, Lord Coxe says, that a lunatic may commit high treason if he kills or offers to kill the king.] A lunatic is liable civilly for a trespass; he is also liable, as an innkeeper, for the loss of his guest’s goods. Cross v. An- drews, Cro. Eliz. 622. Whether or no he can state an account, seems undecided. Tarbuck v. Bispham, 2 M. & W.2. In Selby v. Jackson, 6 Beav. 192, the Court refused to set aside deeds executed by a lunatic while under restraint in an asylum. The Master of the Rolls, in delivering judgment, says: “In this case it is very remarkable, that there is no allegation of fraud against 1H.C. L. R., vol. 11. 2 Id. 14, 3 Cited in Smith on Contracts. MOLTON Vv. CAMROUX. 623 the defendants, no pretence that coercion was used, or any stratagem, or any contrivance, employed to compel or induce the plaintiff to do an act in any way tending to the personal benefit of the defendants.’ This case falls within the rule laid down in Niell v. Morley, 9 Ves. Jun. 478; viz., that a Court of equity will not interfere to set aside the contract of a lunatic if fair and without notice, especially where the parties cannot be reinstated. The question is not, whether the payment of the premiums could have been enforced against the lunatic in his lifetime, but whether the purchase-money can now be recovered back. In many respects the case of a lunatic is assimilated to that of an infant; and the observations of Lord MANSFIELD, in Zouch v. Parsons, 1 W. Bl. 575, are applicable to both ; viz., that “the privilege is a shield, and not a sword.” This is like the attempt to recover premiums paid on an insurance without interest ; in which case it has been held that the premiums cannot be recovered after the risk has been run. Lowry v Bourdieu, 2 Dougl. 468. So also with respect to premiums paid on a policy void under the 19 Geo. III. c. 87; Andree v. Fletcher, 8 T. R. 266; or any illegal assurance, Lubbock v. Potts, 7 East, 449; Morck v. Abel, 3 B. & P. 35. Needham, in reply. The case of Baxter v. The Earl of Ports- mouth did not establish the rule, but the exception. The maxim of the Roman law, ‘“ Furiosus nullum negotium gerere potest, quia non intelligit quod agit ” (Inst. lib. 8, tit. 20, § 8), has been adopted by all text writers in every civilized community. Upon what prin- ciple is it that a lunatic cannot suffer a recovery, and that his bond is void, unless it be that he cannot make a contract? In Thompson v. Leach, 8 Mod. 810, the Court say: ‘ The grants of infants and persons non compos are parallel, both in law and rea- sen.” A lunatic, not having the power of consenting, is incapable of making a contract. Cur. adv. vult. The judgment of the Court was now delivered by Potiocg, C. B. This was an action for money had and received, brought to recover from the defendant (as secretary to an assur- ance and annuity society) two sums paid by the intestate Thomas Lee, in his lifetime, as the price or consideration for two annuities granted by the society, determinable with his life. At the trial, the money was claimed on two grounds: first, that the 624 IDIOCY, LUNACY, ETC. grantee was not of sound mind at the time the contract was made, and was therefore incapable of contracting, and, there be- ing no contract, or a void contract, the money was recoverable ; secondly, that there was no memorial of the annuities enrolled, and therefore they were void, and the money could be recovered back. Both the points were reserved at the trial; and subse- quently, on a motion for a new trial, a special verdict was entered by agreement, setting forth the facts of the case, and raising the two points above stated. The special verdict was argued before us on the 17th and 21st of January last, when the Court expressed a very clear opinion, that the second ground, of want of enrollment of a memorial, could not be supported, on the authority of the case of Davis v. Bryan, 6 B. & C. 6511 (and of other cases), where the point was expressly decided: but, as to the other ground, the Court took time to consider; and upon deliberation we are all of opinion that, upon the finding of the jury that the ‘‘ purchasing the said annuities were transactions in the ordinary course of the affairs of human life, and that the granting of the said annuities were fair transactions, and of good faith, on the part of the company, without any knowledge or notice on the part of the company of the unsoundness of mind,” the action is not sustainable; and our judgment must be for the defendant. As to the rule of common law, the older authorities differ. According to the opinion of Littleton, § 405, and Lord Coke, 1 Inst. 247 6, and Beverley’s case, 4 Rep. 123 a (disagreeing with Fitzherbert’s Natura Brevium, 202), no man could be allowed to stultify himself, and avoid his acts, on the ground of his being non compos mentis ; but certainly the law did not allow the party himself to set aside, by any plea of insanity, acts of a public and notorious character, such as acts done in a Court of record, and feoffments with livery of seisin, the doing or executing of which would not presumably be allowed, unless a party appeared to be of sound mind. The purchase also by a lunatic was valid, and vested the estate, and, though his heirs might disagree to it, he could not. Co. Litt. 2. But the rule, as above laid down by LitrLeton and Coxe, has no doubt in modern times been relaxed, and unsoundness of mind 1E.C. LR, vol. 18. MOLTON v. CAMROUX. 625 (as also intoxication) would now be a good defence to an action upon a contract, if it could be shown that the defendant was not of capacity to contract, and the plaintiff knew it. The cases of Dane v. Viscountess Kirkwall, 8 C. & P. 679,! and Gore v. Gibson, 13 M. & W. 623, were cited to prove this, and their authority fully supports the doctrine contended for. The plaintiff’s counsel distinguished the cases of Browne v. Joddrell, 1 Moo. & M. 105,? and Baxter v. The Earl of Portsmouth, 2 C. & P. 178,35 B. & C. 170,* and other cases of that sort, on the ground that neces- saries furnished to a lunatic were an exception to the general doctrine that he could not make a contract; and he cited the judgment of the Lord Chief Baron, in the case of Gore v. Gib- son, as showing a distinction between express and implied con- tracts, and deciding that all express contracts were void, if the parties to them were incapable of making a contract. On the other hand, it was argued by the defendant’s counsel, that there was a distinction between contracts executed and executory; that executory contracts could not be enforced, but that executed con- tracts could not be disturbed, if made in good faith and without notice of the incapacity; and he called our attention to this, that all the cases cited were cases where damages for the breach of an executory contract were in question, but that no case had yet decided that an executed contract, if perfectly fair and bond fide, could be questioned on the ground of the unsoundness of mind of one of the parties; and he cited the cases of Howard v. The Earl of Digby, 2 Cl. & Fin. 634; Williams v. Wentworth, 5 Beav. 325, and Selby v. Jackson, 6 Beav. 192, to show that the House of Lords in the first case, and Lord LanepaLz in the two last, had recognized the liability of lunatics or their estate, in respect of contracts bond fide acted upon. The case of Niell v. Morley, 9 Ves. 478, before Sir WILLIAM Grant, to the same effect, had been cited before by the counsel for the plaintiff. As far as we are aware, this is the first case in which it has been broadly contended that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and although perfectly fair, bond fide, reasonable, and without notice on the part of those who have dealt with the lunatic. On looking into the cases at law, we find that, in Browne v. Joddrell, Lord TenteRDEN says: “I think the defence [of unsound- 15. C. L. R., vol. 34, 2 Td. 22. 3 Id. 12. 4 Id. 11. 40 626 IDIOCY, LUNACY, ETC. \ ness of mind] will not avail, unless it be shown that the plaintiff imposed on the defendant.” In Baxter v. The Earl of Ports- mouth, 5 B. & C. 170! (the nist prius authority of which is in 2 C. & P. 178), Anzorr, C. J., with the concurrence of the rest of the Court, laid down the same doctrine. In Dane v. Viscountess Kirkwall, Mr. Justice ParrEson, in directing the jury, said: “ It is not sufficient that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it, and took advantage of it.” We are not disposed to lay down so general a proposition, as that all executed contracts bond fide entered into must be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude, that when a person appar- ently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bond fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic, or those who represent him. And this is the present .case, for it is the purchase of an annuity which has ceased. On these grounds we think our judgment ought to be for the defendant. Judgment for the defendant The principle of the case of Molton v. Camroux (ante), is adopted or ap- proved in the following cases: Beavan v. McDonnell, 9 Exch. 309, s. c. 10 Exch. 184; 24 E. L. & Eq. 484; 26 id. 540; Campbell v. Hooper, 3 Sm. & G. 153; Elliott v. Ince, 7 De G., M. & G. 487; Hassard v. Smith, 6 Ir. Eq. 429; Young ». Stevens, 48 N. H. 133, 8. c. 2 Amer. R. 202; Behrens v. McKenzie, 23 Iowa, 343 (where de- fendant was held liable on an injunc- tion bond executed by him while insane, the enjoyment of the benefit of the writ being the consideration en- joyed by him); Fitzhugh v. Wilcox, 12 Barb. 237; Person v. Warren, 14 Barb. 15. C. L. R., vol. 11. 488; Beals v. See, 10 Penn. St. 56; Lancaster Co. Bank v. Moore, Sup. Court of Pennsylvania, May 24, 1875; 2 Cent. Law Jour. 522, s. c. 12 Alb. Law Jour. 185; Yauger v. Skinner, 14 N. J. Eq. 389; Ballard v. McKenna, 4 Rich. Eq. 358; Sims v. McLure, 8 Rich. Eq. 286; Wilder v, Weakley, 34 Ind. 181. See also Lincoln v. Buck- master, 32 Vt. 658; Long v. Long, 9 Md. 348; 1 Story’s Eq. Jur. § 228 et seqg.; 2 Kent’s Com. *450, 451; Benj. on Sales (1st Am. ed.), § 29. In Campbell ». Hooper (supra), the principle of Molton v. Camroux was applied to a bill for the foreclosure of a mortgage as against the real and per- ® Affirmed on error by the Court of Exchequer Chamber, May 29, 1849, 4 Exch. 17. MOLTON 4%. sonal representatives of a mortgagor who was a lunatic at the time of the execution of the mortgage, it appearing that the money to secure repayment of which the mortgage was executed, was honestly paid, and no advantage taken by the mortgagee, nor any knowledge by him of the lunacy when he paid the money. See also Lancaster Co. Bank v. Moore (supra). In Lincoln v. Buckmaster (supra), the cases are quite fully considered, and it was held that where one furnishes a Junatic money and renders him services, which, however, prove of no benefit to him, he cannot recover there- for, even though he in good faith sup- posed him to be sane, provided the cir- cumstances known to him in regard to the other’s mental condition were such as to convince a reasonable and pru- dent man of his insanity, or even to put him on inquiry by which he might, if reasonably prudent, have learned that fact. Indeed, the cases all seem to con- cede that, except in the case of necessa- ries, this protection is not to be extended to one knowing the insanity of the party with whom he is contract- ing, Henry v. Fine, 23 Ark. 420; and evidence of the conduct of the party, alleged to be insane, upon various oc- casions both before and after the date of the transaction in question, is admis- sible to show that his malady was of such a character as would make itself apparent to the other party at the time he was dealing with him. Beavan v. McDonnell, 10 Exch. 184, s. c. 26 E. L. & Eq. 540. On the other hand, see Gibson »v. Soper, 6 Gray, 279, where an insane person, by his guardian, was allowed - CAMROUX. 627 by writ of entry to recover Iand con- veyed by him while insane, which con- veyance had not since been ratified or affirmed, without first restoring the consideration to the grantee. See also Bond v. Bond, 7 Allen, 1; Henry »v. Fine, 23 Ark. 417; Somers v. Pum- phrey, 24 Ind. 231, 238, where the deed of a person of unsound mind was avoided notwithstanding the estate had passed into the hands of a bond fide purchaser for a valuable consideration ; Chew v. Bank of Baltimore, 14 Md. 318; Hovey v. Hobson, 53 Me. 453. See also Metc. on Cont. 80; Fitz- gerald v. Reed, 17 Miss. 94. The principle of the case of Molton v. Camroux seems very like the analo- gous rule in the case of infants, as laid down in the English case of Holmes ». Blogg, 8 Taunt. 508, as explained in Corpe v. Overton, 10 Bing. 252 (see, ante, pp. 111, 114, et seq.) ; and although the rule seems well settled in England, and seems established by the weight of authority in the United States also, yet itis submitted that the rule in Seaver v. Phelps, though perhaps not supported by the weight of authority, is more in accordance with legal principle, and the analogous case of infancy. It seems difficult to answer the position that ‘the fairness of the defendant's con- duct cannot supply the plaintiff’s want of capacity,” except, perhaps, in the case of contracts for necessaries, which are supported upon a different ground. The same remarks will apply to this case, as were made (ante, p. 126, et seq.) in reference to the analogous case of the rescission of the voidable contracts of infants. For the rule in equity, see Niell v. Morley, and notes (post). 628 a _ IDIOCY, LUNACY, ETC. NIELL v. MORLEY. (9 Vesey, Jr. 478. High Court of Chancery, May 11, 1804.) Contracts of Insane Persons; when Rescindable in Equity. — A Court of Equity will not interfere to set aside a contract, overreached by an inquisition of lunacy, if fair and without notice; especially where the parties cannot be placed in statu quo. In May, 1800, the materials of Gunnersbury House, belonging to the defendant, were sold by auction. The sale continued three days; and Niell, a plumber at Brentford, attended every day, and purchased several lots, to the amount, in the whole, of 8,9282. 118. 6d. Immediately after the conclusion of the sale, he sold stock, paid considerable sums to the defendant on account, and gave him promissory notes, and a warrant of attorney to confess judg- ment, for other sums. He afterwards resold, at a loss, part of the materials so purchased. He had been afflicted with an in- flammatory fever in 1796; and, upon the 25th of August, 1800, a commission of lunacy issued against him, under which he was found a lunatic, from the 1st of May, 1797, without lucid in- tervals. The defendant. traversed the commission, upon which traverse a verdict was found for the crown. The bill was filed by the lunatic and his committee, praying that the defendant may be decreed to repay to the committee _ the money paid by the lunatic ;. that the purchases of the several lots by the lunatic may be set aside, the notes delivered up, &c., and for an injunction. A great deal of contradictory evidence was produced as to the state of mind of the lunatic, and his conduct at the sale; which on one side was represented to be most extravagant, in bidding far beyond the value, &c., and, on the other, directly the reverse; and, that on the last day of the sale a person named Andrews, having intimated that he was out of his mind, the defendant spoke to the auctioneer, who mentioned what he had heard to Niell; and that he was much enraged at Andrews, and threat- ened to bring an action; upon which the sale proceeded. NIELL v. MORLEY. : 629 Mr. Richards and Mr. Cooke, for the plaintiff. Mr. Romilly and Mr. Leach, for the defendant. The Master of the Rolls (Sir W1Lu1amM Grant). It is impos- sible to give the plaintiff the relief he prays, or any relief, except upon the ground that he was a lunatic at the time the contract took place. The establishment of that fact is indispensably nec- essary. That fact is controverted by the defendant. But it is also contended that, even admitting it, there isno equity. As to that fact, upon the evidence I'should feel great doubt, and would have it tried.‘ But it is said, it has been tried by the trial upon the traverse. It struck me at first that there was nothing definite in that, but that he was a lunatic at the time of the in- quisition. An issue was tendered by the defendant as to the day of the contract; but no notice was taken of that day either by the replication or the finding of the jury, which is general; though probably it was meant to refer both to the time and manner, according to the issue tendered by the defendant; but it would have been more satisfactory to have found, in the terms of the issue tendered, that he was a lunatic at the day of the contract. In Ex parte Ferne,! the finding was precise with ref- erence to the particular day ; namely, the marriage. The weight of evidence in this case, as applied to the particular time of the purchase, is in favor of the defendant; and, even if the evidence of insanity was clear, I must Have held him to have enjoyed a lucid interval at that time upon the balance of the evidence. But, suppose him to be considered in strictness a lunatic at that time, without lucid intervals, the question is, how far the plaintiff, upon that supposition even, is entitled to the equitable interposition of this Court to restore to him the possession of all the money he has paid in consequence of the contract. The ground taken is, first, that whether the defendant did or did not know his situation, if the fact turns out that he was a lunatic, all his purchases are absolutely void; and all that fol- lowed upon them must be set aside: but also, that the defendant was informed by Andrews of the situation of this person, and therefore the conscience of the defendant is affected; that situ- ation being upon the last day of the sale communicated to the defendant and the auctioneer. As to the latter, it is admitted, 1 5 Vesey, 882. 630 IDIOCY, LUNACY, ETC. no notice was given of the lunacy till the last day. With the knowledge of his family, and the neighborhood, the plaintiff had been attending that sale three days. It is strange that Andrews, or some other person, did not think fit to make that communi- cation till the last day. The fact is that it was not communicated till then. All these people swear, not only that nothing in his conduct excited a suspicion of his situation, but that they looked upon him as remarkably intelligent, understanding the business, and conducting himself with singular propriety. I really do not impute great blame to the defendant and the auctioneer, for hav- ing done no more than they did; stopping the sale for a moment, to consider whether they should go on, and let him be a bidder. I do not believe the defendant gave credit to the information he received, and proceeded mala fide. Then it comes to the mere fact, that he was a lunatic. The question with reference to that is, how far, under all the circum- stances, this Court will interfere to set aside the whole of the lunatic’s transactions, supposing them void at law. That will depend very much upon the circumstances, and no general rule can be laid‘down upon it. With regard to purchases that have not been completed, and cases in which it is possible to replace the parties, there is no reason why this Court should not inter- fere to administer its ordinary equity ; as it can do that in general in a much better way than a Court of law; even supposing that Court would consider the mere law of the case in the same way as this Court would. But there may be other cases, in which the inconvenience would be so great, that this Court will leave the party to law. The inconvenience of carrying back the find- ing is extremely great, if that is to be followed through all the legal consequences. Assuming it to be the legal consequence, that every act of the lunatic subsequent to that time is abso- lutely void, nothing can be more inconvenient than for this Court to give effect to that legal consequence ; setting aside every dealing in the course of his trade, giving an account of all he lost, the parties who have dealt with him to take the chance of the transaction being a losing one, and make it good; and the transaction being strictly void, this Court acting upon that; and though the parties cannot be replaced, obliging them to re- fund; though producing great injustice, that they cannot have NIELL ¥. MORLEY. 6381 that for which the money was paid, or cannot have it in the same manner. In this case the defendant could not have it in the same manner. The money was paid, the transaction completed, the party suffered to deal with the property as his own; to sell it. If it sold to advantage, he or his family would have kept the profit, and the objection would not have been made; but now that it has turned out otherwise, not by circumstances to be im- puted to the defendant (for there is nothing upon the evidence to show the loss was occasioned by an exorbitant price paid to him), a Court of equity is called upon to make the defendant refund, and to give the one party all the money he has paid, and to the other not what the property was worth, but what that property, under all the circumstances, produced to the lunatic. That would be most inequitable and unjust; and, if this is the principle, I must act upon it in all cases; where the lunacy is carried back ten or twelve years. If the plaintiff is right, therefore, in saying, all this is void at law, let him resort to law, and recover, if he can. But there is no ground for a Court of equity to advance his remedy, when it is impossible to exercise the jurisdiction, so as to afford any chance of doing justice to the other party. Where this Court does interfere, it endeavors to put the parties in the same situa- tion ; that is, where the contract is void. Here, if the defendant could be placed in mala fide, as having notice, that would be a distinct and different ground for the interference of a Court of equity. But upon the simple ground that the contract may have been void (and whether it was or not I will not deter- mine), the consequences are so extensive and so inconvenient, that I cannot think this Court ought to give the plaintiff the relief he prays. The bill was dismissed without costs. Whatever may be considered to be the true rule in cases at law, there seems to be no doubt but that ‘‘ the Court of Chancery will not, as a mat- ter of course, interfere to set aside contracts entered into and completed by a lunatic, without any fraud in the parties dealing with him, even where they are overreached by an inquisition taken in lunacy, and may be void at law; but the interference of the Court will depend very much upon the cir- cumstances of each particular case; and where it is impossible to exercise the jurisdiction in favor of the lunatic, so as to do justice to the other party, the Court will refuse relief and leave the lunatic to his remedy (if any) at law. ‘*He who seeks equity must do equity.” See also Sergeson v. Sealy, 632 IDIOCY, LUNACY, ETC. 2 Atk. 412; Price »v. Berrington, 3 153; Sprague v. Duel, 11 Paige, 480; Mac. & Gord. 486, s.c. 7 Eng. L. & Canfield v. Fairbanks, 63 Barb. aL; Eq. 254; Elliott v. Ince, 7 De G. M. Shelford on Lunatics, 418; 1 Story’s &G. 475; Hassard v. Smith, 6 Ir. Eq. Eq. Jur. § 228, and cases cited. See 429; Carr v. Holliday, 5 Ired. Eq. notes to Molton »v. Camroux (ante, 167; Loomis v. Spencer, 2 Paige, p. 627). Bagster (oR Baxter) v. EarL or PoRTSMOUTH. (7 Dowl. & Ry. 614, 8. c. 5 Barn. & Cress. 170; 2 C. & P. 178. Court of King’s Bench, 1826.) Lunatic liable for Necessaries. — A lunatic is capable of contracting for neces- saries. Therefore, where a person of rank ordered carriages suitable to his condition, and the coach-maker supplied them bond fide and without fraud, and they were actually used by the party, Held, that an action would lie upon the contract, notwithstanding an inquisition of lunacy finding the party to be of unsound mind at the time the carriages were ordered. ASSUMPSIT on a contract for the hire and use of certain car- riages and harness, with counts for goods sold and delivered, work and labor, &c. Plea, non assumpsit and issue thereon. At the trial before Apzort, C. J., at the Middlesex sittings, after last Michaelmas term, the plaintiffs, who are coach-makers, gave in evidence two written contracts, signed by the defendant in 1817 and 1818, for the hire of a phaeton and a landau, respectively, with the use of suitable harness. The carriages had been made to the defendant’s order ; and he was to have them at so much per annum, for a certain number of years, the plaintiffs painting and keeping them in repair. Proof was given of the delivery of the carriages, and of the frequent use of them by the defendant after delivery. The answer to the action was, that the defendant was of insane mind at the time of making the contracts, and that by law the contracts of a lunatic are absolutely null and void, to all intents and purposes. It was admitted on the part of the plain- tiffs that, in consequence of a commission of lunacy issuing out of chancery in 1823, the defendant had been found and declared of insane mind, and unfit to have the government of himself, his lands, tenements, goods, and chattels, from the Ist of June, 1809, until the time of taking the inquisition; but it was argued that a BAGSTER (OR BAXTER) ¥. EARL OF PORTSMOUTH. 638 lunatic was liable for necessaries suitable to his degree, on the same principle as an infant’s liability is founded, notwithstanding his general incapacity to contract. The Lord Chief Justice was clearly of opinion, that the carriages, &c., in question, being suit- able to the degree of the defendant, and as they had actually been ordered and enjoyed by him, the plaintiffs had a right to recover ; and the plaintiffs had a verdict accordingly. Brougham now moved fora rule nisi to enter a nonsuit, and referred to Stroud v. Marshall, Cro. Eliz. 898; Cross v. Andrews, id. 622 ; Fitzherbert, N. B. 202 d; Co. Litt. 247 a, 5; Beverley’s case, 4 Hen: 123 6; Yates v. Boen, Stra. 1104; Sergeson v. Beaty 2 Atk. 412; and Faulder v. Silk, 8 Camp. 126. Axspott, C. J. I was of opinion at the trial that the evidence produced in this case was not such as ought to defeat the plain- tiff’s right of recovering in the present action; considering that it was brought for the hire and use of carriages suited to the state and degree of the defendant, and by him actually ordered and enjoyed. That was.on the ground on which I expressed my opinion. I, however, took care to distinguish this from the case of an unexecuted contract, entered into under such circumstances as might lead any reasonable person to conclude that, at the time it was made, the party was of unsound mind. A case of the lat- ter description would come under that class where imposition is practised upon, or advantage taken of the mental infirmity of the contracting party. To such cases I by no means wish to extend. the opinion which I have formed in the present instance. My judgment is governed by a reference to the particular circum- stances of this case; and it is not to be understood as embracing cases of the description to which I have alluded. Imbecility of mind may or may not be a defence in the case of an unexecuted contract. I am not saying that it would, nor does my present opinion decide that it would not. Bayiey, J. Imposition and fraud, generally speaking, are grounds for vacating all contracts ; and with respect to the case of a. person of unsound mind, if it can be proved that he has been de- frauded, or an undue advantage taken of his imbecility, a Court of law will not enforce his contract. But where there is no im- position practised, and the goods supplied appear to be suitable for the condition and degree of the party receiving them, and which, in the ordinary habits of life, he would be likely to require,— 6384 IDIOCY, LUNACY, ETC. I think the mere fact of his being of unsound mind, and incapa- citated from making his own contracts, will not deprive a trades- man of his right of suing in a Court of law for the value of the goods for which he has given credit. There may be great diffi- culty in predicating, on the first view, that a person is of unsound mind. It is well known that there are many individuals capable of speaking and acting most rationally, and who are of perfectly sound mind as to all the ordinary transactions of life, but on some particular subjects suffer under an aberration from sound reason. If persons of this description make an application for credit to a tradesman, who is not aware of their infirmity on some particular points, and he bond fide supplies them with goods which are suit- able to their state and degree, it would be most unjust that his claim in a Court of law should be defeated by the fact, that a commission of lunacy had been awarded, and his debtors found on inquest to be insane. There is here no suggestion that the plain- tiffs have not bond fide given the defendant credit. Exhibiting about him no appearance of mental incapacity, he goes to the plaintiff’s house, and orders carriages, which are afterwards used by him. They are suitable to his condition and degree in life, and such as would have been supplied by other persons, if not by the plaintiffs. Under these circumstances, I think law and justice require that the plaintiffs should be allowed to maintain an action against the lunatic. If the friends and relations of such a person are satisfied that he is incapable of conducting his own affairs, it is competent to them to adopt such measures as shall prevent him from exposure to imposition; but I think an imposition would be practised upon the plaintiffs if, under the circumstances of this particular case, the plea of lunacy could prevail. Ho.royp, J., concurred. LittLepaLe, J. There is no doubt that a deed, bond, or other specialty, may be avoided by a plea of lunacy, if at the time it was executed the contracting party was non compos mentis ; but it seems to me that the rule of law in this respect does not apply to the case of necessaries supplied to a person who is, generally speaking, of sound mind, but insane on some particular subject. It is true that the inquisition in this case finds, retrospectively, that the defendant was of unsound mind, both before and at the time these contracts were entered into; but I think that does not make any difference. Rule refused. MORSE Uv. It is well settled that an adult person, though of unsound mind, is liable on an implied contract for necessaries suit- able to his state and degree; and the rule is the same both at law and in equity. See Richardson v. Strong, 13 Ired. L. 106; Pearl v. McDowell, 3 J. J. Marsh. 658; La Rue v. Gilkyson, 4 Penn. St. 8375; Beals v. See, 10 Penn. St. 60; State Bank v. McCoy, 69 n. 208 ; Lancaster Co. Bank v. Moore,, Sup. Ct. of Penn. May 24, 1875; 2 Cent. Law Jour. 522, s. c. 12 Alb. Law Jour. 185; Stedman v. Hart, 23 L. J. Ch. 908; Sawyer v. Luffkin, 56 Me. 308; Surles v. Pipkin, 69 N. C. 513; Skidmore v. Romaine, 2 Bradf. 122; Kendall v. May, 10 Allen, 59; Wentworth v. Tubb, 1 Y. GC. C. C. 171; Manbey »v. Scott, 1 Sid. 112, 8. c. 1 Lev. 4; 2 Smith’s L. C. *406; 1 CRAWFORD. 635 Pars. on Cont. 383, 3885; Metc. on Cont. 78; 1 Chitty’s Conts. (11th Am. ed.) 188; Benj. on Sales (1st Am. ed.), § 29; 1 Story’s Eq. Jur. § 228, and cases cited. And it is held that even a statute avoiding contracts of insane persons, or of persons under guardianship for vicious habits, was not intended to avoid implied contracts for necessaries. McCrillis v. Bartlett, 8 N. H. 569; Sawyer v. Luffkin, 56 Me. 308. The reader is also referred to the cases and notes on the subject of the liability of infants for necessaries (ante, p. 61, ef seg.), to which the case of lunatics in this respect bears a close analogy. See Metc. on Cont. 79; Phill. on Lun. 17; also, ante, p. 594, and cases cited. Morse v. CRAWFORD. (17 Vermont, 499. Supreme Court of Vermont, March Term, 1845.) Idiocy or Lunacy no Defence to an Action for a Tort. —If property be bailed for a specified time, and, before the term expires, the bailee destroy the property, the bailor may sustain trover against him for its value. That the defendant, in an action for a tort, was insane at the time of committing the injury, is no defence to the action; and, if the action be for destroying property intrusted to the defendant, it is no defence that the plaintiff, at the time of delivering the property to the defendant, knew that he was insane. A witness not a professional man, may give his opinion in evidence, in connection with the . facts upon which his opinion is founded, and as derived from them ;1 though, per Bexnett, J., he could not be allowed to give his opinion, founded upon facts proved by other witnesses. Trover for one ox. Plea, the general issue, and trial by the jury. On trial it was conceded by the defendant, that, previous to May, 1844, the plaintiff delivered to the defendant a pair of oxen, to be kept by the defendant and worked sufficient to pay for their keeping, and that, on or about the 10th of May, 1844, 1 As-to this point, see also De Witt v. Barley, 138 Barb. 550, 8. c. 9 N. Y. 871; 17 N. Y. 340; Beaubien v. Cicotte, 12 Mich. 459. 636 IDIOCY, LUNACY, ETC. the defendant killed one of the oxen, while at work with them, by putting a cord around his neck and strangling him. The defendant’s counsel then introduced testimony, tending to prove that the defendant, about thirty years ago, was insane, and that he had been insane at intervals ever since, and that he was insane at the time the oxen were delivered to him by the plaintiff, and also at the time he killed the ox, and that this was known to the plaintiff. The defendant’s counsel then proposed to inquire of the wit- nesses, who were acquainted with the defendant and had con- versed with him, their opinion as to his insanity; to this the plaintiff objected, for the reason that the witnesses were not pro- fessional men, and had no skill in such matters, and the testimony was excluded by the Court. The defendant's counsel requested the Court to charge the jury that, if they found that the defendant was insane generally, and that the plaintiff suffered the oxen to go into his possession voluntarily, knowing that he was insane, and that he killed the ox, as the testimony tended to show, the plaintiff was not entitled to recover; and that, if they found that the defendant had been insane at intervals for the last thirty years, and had lucid inter- vals, the burden of proof was upon the plaintiff, to show that the defendant killed the ox in a lucid interval. The Court instructed the jury that, if the plaintiff delivered the oxen to the defendant when he was insane, and this was known to the plaintiff, and that the defendant was insane at the time he killed the ox, the plaintiff was not entitled to recover, but that the burden of proof was upon the defendant, to.show that, at the time of killing the ox, he was insane. The jury returned a verdict for the plaintiff. Exceptions by defendant. A. Underwood, for defendant [cited Lester v. Pittsford, 7 Vt. 158 ; Clark v. State, 12 Ohio, 483, cited in 7 Law Reporter, No. 7, Title, Insanity ; 3 Stark. Ev. 1707, note 2, and cases cited; 3 Stark. Ev. 1702, 1703; Attorney-General v. Parnther, cited in note to ib.]. Farr and Leslie, for plaintiff [cited 1 Chit. Pl. 65; 5 Bac. Abr. Tit. Trespass G, 184; 4 Bl. Com. 25, note 5; 8 Bac. Abr.. 86, 89; 2 Saund. Pl. & Ev. 650; 14 Mass. 207; Ray’s Med. Jur. of In- sanity, 237, 238; 1 Sw. Dig. 531; Brown on Actions at Law, 218; MORSE v. CRAWFORD. 637 7 Vt. 161; 1 Conn. 9; 1 Sw. Dig. 749; 9 Mass. 225; 3 Stark. Ey. 1707, note; 1 Russell on Crimes, 7; Ib. 17, note]. The opinion of the Court was delivered by Bennett, J. No question was made on the trial in regard to the ownership of the ox, or as to the fact that he was killed by the defendant. The oxen, it seems, were bailed by the plaintiff to the defendant, to be used by him to pay for their keeping ; and it appears, that, while the defendant had them in his pos- session under this contract, he destroyed one of them by strang- ling him. The defence was put upon the ground that the defendant was insane, both at the time of the bailment, and also at the time he killed the ox, and that the plaintiff knew of his insanity when he bailed him the oxen. Can such a defence avail the defendant ? It is a common principle, that a lunatic is liable for any tort which he may commit, though he is not punishable criminally. When one receives an injury from the act of another, this is a trespass, though done by mistake, or without design. Conse- quently, no reason can be assigned why a lunatic should not be held liable. The fact, that the plaintiff might have known that the defendant was. insane when he let him have the oxen, cannot toll his right of action. To give to it that effect, it would be necessary to infer from it the plaintiff’s assent to the trespass. Though this might evince a want of prudence in the plaintiff, in intrusting his oxen in such hands. Yet it is no evidence, tending to prove his assent to their destruction. It is possible that, if the evidence had shown that the plaintiff had bailed the oxen to an insane man, under an expectation that he might destroy them, so as to charge himself in trespass for their value, the rule might have been different. There might have been some little plausibility in claiming that this was equivalent to an as- sent, on the part of the plaintiff, to the trespass. The bill of exceptions states, that the defendant’s counsel pro- posed to ask the witnesses, who were acquainted with the defend- ant, and had conversed with him, their opinion as to his insanity, which the Court overruled. The counsel on both sides seem to consider the question, on this bill of exceptions, to be, whether the opinion of a witness (who is not a professional man), as devoid [derived] from personal observation of the defendant, can be given in evidence touching his insanity. The law is well 638 IDIOCY, LUNACY, ETC. settled, and especially in this State, that a witness may give his Opinion in evidence, in connection with the facts upon which it is founded, and as derived from them; though he could not be allowed to give his opinion founded upon facts proved by other witnesses. If we are to understand the bill of exceptions as the parties seem to understand it, we think the evidence would have been improperly rejected, in a case in which the insanity of the defendant was properly in issue. But in this case the plea of insanity, if made out on the trial, could not have availed the defendant; and of course there was no error in the rejection of this testimony which can avail the party. In this view of the case the question, upon whom the burden of proof was cast, as to the defendant’s sanity at the time when the oxen were bailed, and also when the ox was killed, became of no account. No sound objection can be urged against this form of action, as arising from the contract of bailment. It must, at all events, have been determined by the tortious act of the defendant.- As it appears from the whole case that the plaintiff is entitled to judgment, the judgment of the County Court is affirmed. See next case and notes. Krom v. SCHOONMAKER. (3 Barb. 647. Supreme Court of the State of New York, June, 1848.) Lunacy no Defence to Action of Tort. Measure of Damages.— A lunatic can not be punished for crime, but he may be sued for an injury done to another. He is not afree agent, capable of intelligent voluntary action, and therefore is incapable of a guilty intent, which is the very essence of crime; but a civil action, to recover damages for an injury, may be maintained against him, because the intent with which the action is done is not material. The princi- ple upon which this distinction rests reaches also to the measure of damages in a civil action. Ordinarily, in an action for a personal injury, the damages are graduated by the intent of the party committing the injury. But where the defendant is a lunatic, as he has properly no will, the only correct meas- ure of damages is the mere compensation of the party injured. In an action against a justice, for false imprisonment in issuing a warrant for the arrest of KROM v. SCHOONMAKER. 639 the plaintiff upon a criminal charge, without any complaint baving been made, where the defence is the insanity of the defendant at the time he issued the warrant, the fact that the plaintiff had applied to a justice for the confinement of the defendant as a lunatic, and had founded that application upon the cir- cumstances of his own arrest on the warrant issued by the defendant, is strong, if not conclusive, evidence of the defendant's insanity ; in the absence of all proof to show that the plaintiff was in fact mistaken, at the time he made the application. In such a case, the jury should have been instructed that they have the right, at least, to take the plaintiff's judgment as to the state of the defendant’s mind, as conclusive against him, until he shall himself show that he was mistaken in his opinion. The power of the Court to award a new trial ought to be cautiously exercised, when the error complained of relates only to the amount of damages. Tus was an action for false imprisonment, tried before Mr. Justice WILLARD at the Ulster Circuit, in September, 1847. It appeared upon the trial that the defendant was a justice of the peace of the town of Rochester, and, as such justice, on the 4th day of January, 1847, issued a warrant in the following words : — * Ulster county, ss. To any county of said county, greeting: In the name of the, people of the State of New York, you are hereby commanded to take the body of Solomon J. Krom, and bring him before me forthwith, to answer said people in a com- plaint of perjury said to have happened in the Court of Common Pleas and General Sessions, at its last session at the Court house in Kingston in said county. Given under my hand this 4th day of January, 1847. *“‘ Joun D. SCHOONMAKER.” The warrant was issued without any complaint being made, and delivered to one Frost, a constable, by whom the plaintiff was arrested, and on the same evening brought before the defendant. At the plaintiff’s request the examination was adjourned until the next morning at Moses J. Schoonmaker’s tavern. The defendant told Frost to keep the plaintiff in custody. After they left the defendant’s house the constable allowed the plaintiff te go home, upon his promise to meet him at Schoon- maker’s the next morning. The next day the plaintiff, with one Wyckoff, his counsel, went to Schoonmaker’s tavern, and met the constable there; but the defendant did not come. . The plaintiff was not released by the constable until sundown that day. 640 IDIOCY, LUNACY, ETC. It was proved on the part of the defendant that when the plaintiff was brought before him on the warrant, his son told him “there was no use in minding Schoonmaker, as he was crazy and did not know what he was about.”’ It was also proved that for neatly a year the defendant had confined himself to his room, allowing no person whatever to see him. One Westbrook, another justice of the same town, testified that two or three days after the warrant was issued, the plaintiff and his son applied to him and stated that they wanted to take proceedings against Schoonmaker ‘“ under the statute of lunacy ;” that they did not consider it safe for him to go at large, from the way he acted ; he was mischievous and crazy, or something. Accord- ingly an examination was had before two justices. The plaintiff was the first witness examined ; and, as evidence of the defend- ant’s insanity, he related the circumstances connected with his ar- rest upon the warrant for perjury. He stated in particular what occurred when he was brought before the defendant. When asked what the warrant had been issued: for, he said it was for perjury; that plaintiff had sworn false on the trial of Bell & DePuy, and had sworn false by the wholesale; that it was the fifth time he had sworn false; that ‘either the plaintiff or the defendant had sworn false, and one of them must go to State’s prison: he said he was not going to shoot himself until he had all those damned perjured rascals where they ought to be; that when plaintiff asked him if he could give bail, he said he wanted bail for $20,000; and, upon being told by the plaintiff he would give it, he said he must give $30,000; he was told he could have that, and then he said he would not take that ; that money would not save him. When he consented to adjourn the examination until the next morning, he-said he was going to have all the judges there. After the adjournment he directed the constable to take charge of the prisoner. The constable hesitated, and he said: ‘Damn you, constable ; do you not know your business?” He then called one Marble, who was not a constable, and said to him; * You have been constable long enough ; you know your business.” When asked who had made the complaint, he said it was R. H. DePuy; DePuy, being present, denied it. Then he said he was the complainant him- self. Several other witnesses were examined before the justices, who proved various, acts of the defendant, about the time the KROM v. SCHOONMAKER. 641 warrant was issued, evincing a disordered mind. The examination of the witnesses before the justices was read upon the trial without objection. The Court charged the jury that the warrant was not a pro- tection to the defendant, because no complaint was shown; but that, in order to justify a verdict for more than actual damages, the jury must be satisfied that at the time of issuing the warrant the defendant was of a sane mind; that sanity was to be presumed until insanity was proved ; and that the jury must determine from the evidence whether the defendant was sane or insane. The jury found a verdict for the plaintiff ‘for $350. The defendant moved for a new trial upon a case. M. Schoonmaker, for the plaintiff. T. R. Westbrook, for the defendant. By the Court, Harris, J. A lunatic cannot be punished for crime, but he may be sued for an injury done to another. He is not a free agent, capable of intelligent, voluntary action, and therefore is incapable of a guilty intent, which is the very essence of crime; but a civil action, to recover damages for an injury, may be maintained against him, because the intent with which the act is done is not material. But the principle upon which this distinction rests reaches also to the measure of damages in a civil action. Ordinarily, in an action for a personal injury, the amount of damages is, at least to a considerable extent, governed by the motive which influenced the party in committing the act. Thus it is usual, and as proper as it is usual, for the Court, upon the trial of an action for an assault and battery, to instruct the jury that the action is maintainable even though the injury was accidental; that if intentional, yet when the act is done under the excitement of strong provocation, it is a proper ground for the mitigation of damages. And, on the contrary, that when the act is committed deliberately or maliciously, it is good ground for increasing damages. In short, in such cases, the damages are graduated by the intent of the party committing the injury. But in respect to the lunatic, as he has properly no will, it follows that the only proper measure of damages in an action against him for a wrong is the mere compensation of the party injured. The charge of the learned judge upon the trial was, therefore, in this respect, entirely correct. But I think sufficient weight was not given, either by the judge 41 642 IDIOCY, LUNACY, ETC. or the jury, to the fact that the plaintiff himself, immediately after he was discharged from arrest upon the warrant against him, made application, according to the provisions of the act in relation to the safe-keeping and care of lunatics (1 R. S. 635, § 8), for a war- rant to apprehend and confine the defendant as a lunatic. The judge charged the jury that, as a general rule, sanity is to be presumed until the contrary is made to appear. So far, per- haps, the charge was correct, but I think he should have further instructed the jury that the fact that the plaintiff had, at the time, made application for the confinement of the defendant as a lunatic, and had founded that application upon the circum- stances of his own arrest upon the warrant issued by the defend- ant, was strong, if not conclusive, evidence of the defendant’s insanity, in the absence of all proof to show that the plaintiff was in fact mistaken, or even thought he was mistaken, when he made the application. The fact that the plaintiff, and, as it would seem, all who had any knowledge of the proceedings against the plaintiff for perjury, believed those proceedings to have been the result of the defendant’s insanity, was not, I think, sufficiently con- ° sidered. The jury should have been instructed that they had the right, at least, to take the plaintiff’s judgment as to the state of the defendant’s mind as conclusive against him, until he should himself show that he had been mistaken in his opinion. There was no such evidence ; and, from the facts and circumstances detailed in the case, I think I should have come to the same conclusion that the plaintiff did, that the issuing of the warrant was but the freak of a madman. The power of the Court to award a new trial ought to be cautiously exercised when the error complained of relates only to the amount of damages; but under all the circumstances of this case, and taking into consideration the novelty of the defence, I think it is one of those cases in which a due regard to the ends of justice, and a discreet exercise of the power of the Court, fully warrant us in directing that the cause should be submitted to another jury. New trial granted. The doctrine that idiocy or lunacy T. Raym. 421; Bessey v. Olliot & is no defence to an action of tort Lambert, T, Raym. 467; Lancaster seems well settled. See also Cross Co. Bank ». Moore, Sup. Ct. of Penn. v. Kent, 32 Md. 581; Bush v. Petti- May 24, 1875; 2 Cent. Law Jour. ‘522, bone, 4 N.Y. 300; Behrens v, McKen- gs, c. 12 Alb, Law Jour. 185; 1 Chitty’s zie, 23 Iowa, 343; Weaver v. Ward, Plead. 76; Bac. Abr. Idiots & Lun. Hob. 134; Lambert & Olliot v. Bessey, E, Trespass G 1, and cases cited; SLOAN UV. MAXWELL. Shearm. & Redf. on Negl. § 57. See, however, 1 South. Law Rev. (N. 8.) 316; Sedg. on Dam. 455, 456; Whart. on Neg. §§ 87, 88, 306, 307, where the doctrine is maintained that an insane person is incapable of negligence. In civil cases where malice is an es- sential ingredient of the charge, as in the case of slander, idiocy or lunacy is admissible in disproof thereof. Gates v. Meredith, 7 Ind. 440; Yeates v. Reed, 4 Blackf. 463; Bryant v. Jack- son, 6 Humph. 199; Horner ». Mar- shall, 5 Munf. 466; Townshend on Slander & Libel (2d ed.), p. 434, § 248. In Dickinson v. Barber, 9 Mass. 225, ‘*the Court observed that they gave no opinion, in this case, how far or to what degree insanity was to be received as an excuse for defamatory words. Where the derangement was great and notorious, so that the speaking the words could produce no effect on the (D Stoan v. Maxwet. 648 hearers, it was manifest no damage would be incurred. But where the degree of insanity was slight or not uniform, the slander might have its effect; and it would be for the jury to judge upon the evidence. before them, and measure the damages accordingly.” As to whether the same rule applies as to drunkenness being a defence to an action for slander, there seems to be some conflict among the authorities. See Gates v. Meredith, 7 Ind. 440; Dawson v. State, 16 Ind. 428, which seem to maintain the affirmative of the: proposition; and Reed.v. Harper, 25 Towa, 87; McKee v. Ingalls, 4 Scam. 30; Townshend on Slander & Libel (2d ed.), 485, maintaining the negative. As to the question of the measure of damages the rule seems correctly stated, in the’ principal case of Krom ». Schoonmaker. See also Cross v. Kent, 32 Md. 581; Sedg. on Dam. (6th ed.),. * 455, note 1. / (3 N. J. Eq. 563. Prerogative Court of New Jersey, October Term, 1831.): Degree of Mental Capacity requisite to make a valid Wiil.— A testator must have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the busi- ness in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which. it is to be distributed among them. Tis cause came before the Court upon an appeal from a decree of the Orphans’ Court of the county of Hunterdon, deny- ing probate of an instrument propounded ‘as the last will and testament of John Maxwell, late of the county of Hunterdon. The will was executed in the month of August, 1825, and the testator died in Fébruary, 1828, at the age of eighty-eight years. The,will was exhibited for probate by William H. Sloan, one of the eueouton named therein; and a caveat against proving the same was filed by John S. Maxwell and others. On the hearing of the cause in the Orphans’ Court, the judges were equally divided in opinion. Thereupon, by consent of parties, in order 644 IDIOCY, LUNACY, ETC. that an appeal might be taken, a decree was made on the twelfth day of December, 1828, ‘that the paper writing offered for probate was not the last will and testament of John Maxwell, deceased, and that the same be not admitted to probate, but be set aside, made void, and for nothing holden.” The ordinary having been of counsel with one of the parties, Chief Justice Ewine and Justice Drake, two of the justices of the Supreme Court, were by virtue of the provisions of the Act of the 19th of February, 1830 (Harrison, 297), called by the ordinary to sit and advise with him on the hearing of the cause. The opinion was delivered by Ewina. Saxton, for appellant. Wurts, for respondent. Opinion. John Maxwell, of Flemington, in the county of Hun- terdon, died in the month of February, 1828, at the advanced age of eighty-eight years. During the greater part of his life he had resided in the county-of Sussex, where he was distinguished for industry, integrity, usefulness, and consequent respectability. He bore arms for his country in her contest for independence, and afterwards, in common with his co-patriots and fellow-citizens, enjoyed and appreciated the-rights and privileges won by their wisdom and valor and sufferings. Besides a faithful discharge of the duties of private life, in rearing a numerous family by wise precept and instructjve ex- ample, his services were incessantly invoked, freely bestowed, and eminently useful among his neighbors, and in the county, in various official stations, and especially as a magistrate and judge. Having reached old age, and acquired a competency of this world’s goods, he withdrew from the active pursuits of business, removed about the year 1813 to Flemington, and resided there respected and esteemed the remainder of his life. Domestic afflictions there reached him, disturbed at times his peaceful retirement, and diminished in some measure the -property he had gathered by his care and toil; enough, however, remained to render him comfortable, and since his decease to form the subject of dissension and controversy among his descendants. In the month of August, of the year 1825, he went into one of the stores of the village. No one accompanied him, nor, so far as is known, did any one direct, advise, request, or prompt him to go thither, or to execute his ostensible purpose. He found SLOAN ¥. MAXWELL. ' 645 there the proprietor of the store, Samuel D. Stryker, the clerk, Theodore Ellis, and one of the neighbors, Charles Bonnel. He carried in his hand a paper, and said to them: “I have got here a paper which I wish you to sign.” One of them observed to him: “T presume it is your will.’ He answered in the affirmative, and laid it on the counter. His name was already subscribed to it in his own handwriting, which was familiarly known to the persons who were present. He put his finger on the seal, and acknowl- edged it to be his hand and seal, and the instrument to be his last will and testament, either in terms, or by affirmative answers to questions put to him by one of the witnesses. The three persons signed their names to the will in his presence. Very little con- versation occurred; soon after the attestation, he folded up the paper, and, carrying it with him, left the store. In about two. years and six months afterwards, Mr. Maxwell died ; and this paper was exhibited in the surrogate’s office for probate as his last will and testament. A caveat having been filed, the matter was brought before the Orphans’ Court, where, after hearing the examinations of many witnesses, the judges were equally divided in opinion; and by consent of the parties, in order that an appeal might be taken, a decree was made on the twelfth day of December, 1828, “that the paper writing offered for probate was not the last will and testament of John Maxwell, deceased, and ‘that the same be not admitted to probate, but be set aside, made void, and for nothing holden.” An appeal was accordingly taken. His excellency the gov- ernor and ordinary, having been of counsel for one of the parties, the appeal, and the evidence, and the arguments of the counsel have been heard before the subscribers, two of the justices of the Supreme Court, called to this duty by the ordinary, in pursuance of the statute. And we are now to recommend to him the decree which in our opinion ought to be made, and to communicate to him the reasons on which our recommendation is founded. The mental capacity of the decedent is the line of strife be- tween the parties. When the question of competency or incom- petency to execute this interesting and important function is settled, there is no further ground of controversy. The formality of the execution of this instrument, as a will of personal estate, is abundantly and conclusively shown, and has not been made the subject of discussion. 646 IDIOCY, LUNACY, ETC. As a will of personal estate it has been offered for probate. The probate of it, as such, is alone the extent of the jurisdiction of this Court, or, perhaps, more correctly speaking, of the con- clusive jurisdiction of this Court ; for, whether sustained or re- pudiated here, it may, notwithstanding, as an instrument for the conveyance of lands, or, in other words, as a will of real estate, be the subject of énquiry, and may be decreed valid or invalid in another tribunal. We may at once, therefore, disclaim any in- tention to examine the conformity of the execution of this instru- ment to the formalities requisite to constitute a will of real estate. The great question involved here is common to the instrument, whatever may be the description of property which it affects. There is no difference or distinction of which we are aware, in the degree of mental capacity resulting from the different kinds of property. The rule as to personal and real estate is the same. In 6 Go. 24, it is said: “If he were of sane memory at the time of making the testament of the goods, he could not be of non- sane memory at the time of the making of the will of the lands, both being made at one and the same instant.” Our first duty, then, in the progress of this inquiry, and before we open the evidence of this particular case, is to fix, so far as we may be able, the standard of capacity. Who is competent? What degree of capacity is requisite and sufficient to make a valid will? An answer, in general terms, is easily found; but to furnish an answer specific, practical, and readily to be applied to any given case, is an arduous task, and has frequently embar- rassed the highest sagacity and discernment. When we are told, in the language of our statute, that he who is “ of non-sane mind and memory” cannot make a will, or what is the same idea, the one being an affirmative and the other a negative mode of expres- sion, that he who makes a will should be “ of sound and disposing. mind and memory,” we have gained very little practical instruc- tion or information. For the question immediatel} recurs: What isa sound mind? What is a disposing memory ? What state or what degree of either is thereby contemplated and expressed ? The exposition by Godolphin sheds but faint light. “To be of sound and perfect memory,” says he, “is to have a reasonable memory and understanding to dispose of an estate with reason.” Godolphin, Orph. Leg. 25. The instance he puts, after stating the rule that ‘old age alone doth never deprive a man of the SLOAN ¥. MAXWELL. 647 power of making his testament,” is rather intended as an example ‘of positive incapacity, than to give a general test for the solution of this important inquiry. ‘“ When a man, by reason of extreme old age, is become even a child again in his understanding, or rather in the want thereof, or by reason of extreme old age or other infirmity is become so forgetful that he knoweth not his ‘own name, he is then no more fit to make a-testament than is a natural fool.” Godolph. 26. ‘The light is somewhat, though not satisfactorily or sufficiently increased by the Marquis of Winchester’s case, 6 Co. 23: “It is not sufficient that the testator be of memory when he makes the will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory which the law calls sane and perfect memory.” Now, if the meaning here is, that the disposition of the testator’s property by the will should be conformable to what the wit- ness, who is to testify of his capacity, or the judge who is to decide on it, may deem reasonable and discreet, there is nothing more untrue; for, if the capacity of the testator is admitted or established, the disposition he may have made must prevail, however indiscreet and unreasonable it may be, as if he should give all from meritorious children to an utter stranger. Stat pro ratione voluntas. And if the meaning is, that in a doubt- ful case the disposition may be scrutinized, there are few things more unsafe; since the testator may have most satisfactory mo- tives and reasons, of which others are uninformed, to withhold or guide his bounty. But if the meaning is, that he must possess understanding and reason in order to make a valid disposition, we are brought back almost to the starting-post; for, although we are told it is not enough to be able to answer familiar ques- tions, we are still left to ask, What is a competent degree of understanding’ and reason ? The exposition which was read and urged upon us at the ar- gument, from Den v. Johnson, 2 South. 454, is not satisfactory. “* Sound’ signifies whole, unbroken, unimpaired, unshattered by disease or otherwise.” If so, a will can only be made in the spring, or, at the latest, in the summer, and never in the autumn of life. Nor, indeed, does this passage, taken by itself, and without the explanations and qualifications contained in the 648 IDIOCY, LUNACY, ETC. charge, of which it formed a part, properly convey the meaning of the judge who used it. For he says: ‘It is true that every discomposure of mind by these causes” (melancholy, grief, sor- row, misfortune, sickness, or disease) ‘“ will not render one in- capable of making a will; it must be such a discomposure, such a derangement, as deprives him of the rational faculties common to man.” And again he says: “If, upon the whole, the jury should be of opinion that the mental powers of the testator were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and that the will in question was devised by other persons, and only assented to by her, upon being asked, without the power of understanding it, then they ought to find” against the will. And again: “ A disposing mind ‘and memory is a mind and memory which have the capacity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood.” From the opinions delivered by the other judges in their review of the charge, it is obvious they do not sanction or approve the unqualified exposition of the term “sound.” One of them said: “The charge was substantially consistent with the law.” The other said, its correctness was to be determined by the whole taken together ; and that, so taken, the definition of testamentary capacity was true; though it should be admitted, in describing the force of the word *“ sound”’ by itself, too strong language had been used. The remarks of the same learned judge, by whom the charge was given, made in the subsequent case of Den »v. Vancleve, 2 South. 660, show that the strict construction was not designed by him. ‘ By these terms” (a sound and disposing mind and memory), says he, ‘it has not been understood that a testator must possess these qualities of the mind in the highest degree, otherwise very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life ; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled, and yet there may be enough left clearly to discern and discreetly to judge of all those things and all those circum- stances which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot SLOAN v¥. MAXWELL. 649 be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory.” Another of the Court in that case said: “I could by no means concur with the Chief Justice in his exposition of the term ‘sound,’ as applied to the mind of the testator, —‘ whole, unbroken, un- changed by disease, age, or infirmity.’ Few indeed would be the wills confirmed, if this is correct. Pain, sickness, debility of body from age or infirmity would, according to its violence or duration, in a greater or less degree break in upon, weaken, or derange the mind, and render it incapable of exercising its full powers, as in time of perfect health. Yet I believe that none have ventured to pronounce that extreme illness incapacitates a testator, or that old age, when memory was impaired and judg- ment weakened, rendered him ineapable of disposing of his property. ‘Of sound and disposing mind and memory,’ is the language used. The sentence must be taken together, not dis- jointed, and ‘sound’ explained in its literal, distinct, and separate meaning, unconnected with the subject-matter to which it neces- sarily and evidently refers. Thus taken in connection, it means that the testator, at the time of executing his will, had that soundness of mind and memory enabling him to understand the nature of the instrument he signed and sealed, the relative situ- ation of his family and connections, the general extent of the property disposed of, and that it was so disposed of as was agree- able to his desire.” Another of the Court said: *“* The execution of a will, the dis- tribution of an estate among a family, is an act of a peculiar char- acter. It is not the prompt and unpremeditated effort of the moment, but the tardy effect of long observation on his family and property, on the claims of duty and the calls of affection. It is fre- quently the result of the combined reasoning and feelings of years, often meditated on, often resolved, and not unfreqnently divulged.” The subject of testamentary capacity was investigated, ex- amined, and discussed, with great assiduity, in the cases of Har- rison v. Rowan, and Den v. Vancleve, in the Circuit Court of the United States for this district ; and the legal doctrines on this topic were stated and explained with great perspicuity and pre- cision by that eminent judge who for many years presided there, and who administered justice so beneficially to the public, and 650 IDIOCY, LUNACY, ETC. with an ability and reputation rarely surpassed and never to be forgotten. In the former case, in his charge to the jury, he said: ‘ As to the testator’s capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of ‘the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and “ memory as will enable him to understand the elements of which it is composed, the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be ina state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of ; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of prop- erty. For most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their in- tentions than they would in comprehending business in some measure new.” In the subsequent case of Den v. Vaneleve, Judge WasHIncTon spoke thus: ‘ He (the testator) must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory: a man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by age or disease ; he may not be able at all times to recollect the names, the persons or the families of those with whom he had been in- timately acquainted ; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary -SLOAN v. MAXWELL. 651 transactions of life, He may not have sufficient strength of memory and vigor of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much, What was the degree of memory possessed by the testator? as this, Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligible form: Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged, at the time he executed his will?” Without seeking further to pursue this fruitful subject in the multitude of cases to be found in the English and American books, and without undertaking to give an exposition in language of our own, we shall on the present occasion adopt in substance the doctrine laid down by Judge WasuincTON, as the proper ex- position of the terms “sound and disposing mind and memury,” and the correct standard of testamentary competency and capacity. We find it perspicuous, we believe it sound, and we learn it was received and approved by the ordinary in the recent case of the appeal on the will of Tace Wallace; and on this last considera- tion we much rely, because we have the aid of his deliberation and judgment; and, sitting on the present occasion in his place, we have the satisfaction to know that the claims of the parties before us will be estimated by the same standard as if he had decided upon them.2... See next case and notes, 1 It is a matter of regret that the opinion in this case, delivered by Vroom, ordi- nary, at January Term, 1831, cannot be procured for publication. The opinion was loaned by the ordinary, and cannot now be found. 2 The remainder of the case consists of an examination of the evidence in the cause, and of questions foreign to the particular point under examination, and hence is omitted. 652 IDIOCY, LUNACY, ETC. 5 ; ae? ConvERSE v. CONVERSE. (21 Vermont, 168. Supreme Court of Vermont, January Term, 1849.) Degree of Mental Capacity requisite to make a valid Will. — A lower degree of intellect is requisite to make a valid will than to make a valid contract.' But, in the former case, something more is required than mere passive memory. There must be sufficient active memory to collect and retain the elements of the business to be performed, for a sufficient time to perceive their obvious relations to each other. In this case the Court below instructed the jury, that the validity of the will in question must depend upon whether the testator had sufficient mental capacity to execute it at the time it was executed; that he must then have been of sound disposing mind; that this did not imply, that the powers of the mind must not have been weakened, or impaired by disease or old age; that it would not be sufficient, that the testator might be able to understand a question and answer it in a rational manner, nor was it neces- sary that he should have such a capacity of mind as would justify his engaging in complex and intricate business; but that the jury must be satisfied, in order to justify them in establishing the will, that the testator, when he made it, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the dispo- sition of his property, as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them. And it was held, that herein there was no error. AppeaL from a decree of the Probate Court, allowing the will of Hamblin Converse. Trial by jury, December term, 1848, — Bewnert, J., presiding. On trial, after the executor had given evidence to prove the formal execution of the will, the defendant introduced testimony tending to prove, that the testator, at the time of making the will, was about seventy-eight years of age; and that, as early as 1844, he was afflicted with a disease of the brain, which was incurable and progressive, and that he lost all reason for some months be- fore he died; and physicians were called, who gave it as their opinion, that the testator might do common business with which he was familiar, but that he would not be able to enter into any 1 See 1 Redf. on Wills (8d ed.), 128; Potts o. House, 6 Geo. 356; Harrison v. Rowan, 3 Wash. C. C. 580; Sloan v. Maxwell (ante). It has been held, however, that the requisite degree of capacity is the same in both cases. See McElroy »v. McElroy 5 Ala, 81; Coleman v. Robertson, 17 Ala. 88; Black v. Ellis, 3 Hill (S. C.), 74. : CONVERSE v. CONVERSE. 653 new or complicated business, and that no reliance could be placed on the action of his mind. The executor introduced evidence tending to prove, that the testator, at the time of making the will, and before and after, was of sound mind, and capable of transacting all kinds of business. The defendant requested the Court to charge the jury, that, if the testator was feeble in body and mind, and subject to a disease of the brain which was continuous and progressive, and his memory and mind were so impaired that he could not act upon important busi- ness with reason and judgment, he was incapable of making a will. But the Court, among other things not objected to, instructed the jury, that the validity of the will in question must depend ‘upon the fact, whether the testator had sufficient mental capacity to execute it at the time it was executed; and that, to give it effect, he must then have been of sound disposing mind ; but that this did not in any way imply that the powers of the mind must not have been weakened or impaired by disease or old age; and in regard to the degree of capacity which the jury must be satisfied the testator possessed at the time of making the will, the Court told the jury, that it would not be sufficient that he might be - able to comprehend and understand ‘a question which might be propounded to him, and answer it in a rational manner, nor was it necessary that he should have such a capacity of mind as would justify his engaging in complex and intricate business; but that the jury must be satisfied, in order to justify them in establishing the will, that the testator, when he made it, was capable of know- ing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will, and the per- sons to whom he meant to convey it, and the manner in which it was to be distributed between them; and that, if they found all this, it should be found that he had sufficient capacity to make the will in question, but otherwise not. The jury returned a verdict establishing the will. Exceptions by defendant. H. Seymour and Linsley & Beckwith, for defendant, cited 6 Co. 23; 8 Vin. 43; 2 Hagg. 84; 2 Eccles. 848. J. Pierpoint and. A. Peck, for plaintiff, cited 8 Wash. C. C. 587 ; 4id. 261; 9 Conn. 102; 8 Mass. 371; Roberts on Wills, 30. 654 IDIOCY, LUNACY, ETC. The opinion of the Court was delivered by Reprretp, J. The subject involved in this case is one of some difficulty. It is not easy to lay down any precise rule as to what exact amount of mental capacity is sufficient to enable one to dispose of property by will. The rule laid down by the judge in this case, in summing up to the jury, seems to have been rather a medium one,—rather sensible and judicious; and, if we re- versed the judgment, we could hardly expect to prescribe a safer or more intelligible one. Every man will have his own mode of expressing the thing. The rule of one is very little guide to another. I have myself usually told a jury, in these cases, that less mind is ordinarily requisite to make a will than a contract of sale, understandingly, for the reason, that in contracts of sale there are usually two parties, and some degree of antagonism between their interests and efforts ; so that here mind is opposed tofmind, and consequently it is somewhat more difficult to see clearly the just bearing of all the relations presented, than under the common circumstances of making a will, where one is left free to act upon his own perceptions merely. But this is not always the case in making a will. One may be beset by an army of harpies, in the shape of hungry expectants for property, altogether more perplex- ing than the ordinary circumstances attending a disposition of property by sale. ~ But it may be safe, no doubt, to affirm that, in making any con- tract understandingly, one must have something more than mere passive memory remaining. He must undoubtedly retain suffi- cient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their more obvious relations to each other, and be able to form some rational judgment in relation to them. The elements of such a judgment should be, the number of his children; their deserts, with reference to conduct and capacity, as well as need, and what he had before done for them, relatively to each other, and the amount and condition of his property, with some other things, perhaps. The capability of men in health to form correct judgments in such matters is no doubt very unequal, and, when there is no inherent incongruity in the will itself, and no just ground to suspect improper influence, juries are, and perhaps CONVERSE v. CONVERSE. 655 should be, very liberal in sustaining testamentary dispositions. But there must undoubtedly be some limit. When one is con- fessedly in a condition to be constantly liable to commit the most ludicrous mistakes in regard to the most simple and familiar sub- jects, he ought not to and cannot make a will. . 1 ‘Mad folkes and lunatick persons, during the time of their furor or insani- tie of minde, cannot make a testament, nor dispose of any thing by will, no not ad pias causas: the reason is most forcible, because they know not what they doe; for, in making of testaments, the integrity or perfectness of minde and not health of the body is requisite ; and thereupon arose that common clause, used in every testament almost, * sick in body, but of perfect minde and memory.’ And so strong is this impedi- ment of insanitie of mind, that if the testator make his testament after this furor have overtaken him, and whiles as yet it doth possvsse his minde, albeit the furor afterwards departing or ceas- ing, the testator recover his former understanding, yet doth not the testa- ment made during his former fit, recover any force or strength thereby. Howbeit if these mad or lunatick per- sons have cleare or calme intermissions, then during the time of such their quietnesse and freedome of minde, they may make their testaments, ap- puinting executors, and disposing of their goods at their pleasures. So that neither the furor going before nor fol- lowing the making of the testament, doth hinder the same _ testament begunne and finished in the meane time.” Swinburne on Wills, Part II. § 3; Bac. Abr. Wills & Test. B. ‘The general doctrine of incapacity to execute a will by reason of insanity ; and that a valid will may be executed during a lucid interval, is unquestioned; the only difficulty lies in determining the degree of capacity requisite. The reason above assigned by Swinburne for such incapacity, ‘‘ because they Judgment affirmed. know not what they doe,” as more elaborately stated in the principal cases, seems to fix the test of such ca- pacity upon an intelligible and com- mon-sense basis. In Horne v. Horne, 9 Ired. Law, 99, it was held that an in- struction ‘‘ that if the supposed testa- tor knew what he was doing, at the time of making said supposed will, and that he was giving his property to the plaintiffs, and that they would be enti- tled to it, provided the forms of the law were complied with, they should find in favor of the will,” correctly stated the law. It is believed that the rule as thus variously stated, besides being rational and intelligible, is also supported by the weight of modern authority. See Comstock v. Hadlyme, 8 Conn. 265; Kinne v. Kinne, 9 Conn. 102; Dunham's Appeal, 27 Conn. 192; Kinne v. Johnson, 60 Barb. 69; Rey- nolds v. Root, 62 Barb. 250; Moore v. Moore, 2 Bradf. Sur. 261; Dela- field v. Parish, 25 N. Y. 9, 22; Van Guysling v. Van. Kuren, 35 N. Y. 70; Cordrey v. Cordrey, 1 Houst. 269; Beaubien v. Cicotte, 12 Mich. 459, 490; McClintock v. Curd, 32 Mo. 411; Benoist v. Murrin, 58 Mo. 322; An- dress v. Weller, 3 N. J. Eq. 604; Tay- lor v. Kelly, 31 Ala. 72. The cases will be found ‘fully collected and dis- cussed in 1 Redf. on Wills (8d ed.), p. *124 et seq. See also Trish v. Newell, 62 Ill. 196; also the opinion of the Court in the principal case of Converse v. Converse, explained by its learned author, and Trish v. Newell, commented upon in Redf. Am. Cas. on Wills, 173. The cases of Stewart v. Lispenard, 26 Wend. 255; Blanchard v. Nestle, 656 8 Denio, 37; Potts v. House, 6 Geo. 324; Gardner v. Lamback, 47 Geo. 133, and others following the first- named cases, may probably be con- sidered as opposed to the weight of reason and more recent authority, and IDIOCY, LUNACY, ETC. Redf. on Wills (3d ed.), 125, note, 180, note. So much of the case of Dela- field v. Parish (supra), (which is the leading case on this subject in New York), as discusses the question in- volved in the principal case, is here- the New York cases are virtually over- with presented.? ruled by Delafield v. Parish, See 1 - 1 Davies, J... . “ Before proceeding to the examination of the facts in the pres- ent case, it may aid us in arriving at a correct conclusion to advert to a few rules of law, which it is deemed are well recognized and long established. It is provided by the statute law of this State, that ‘all persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate by a last will and testament,’ duly executed, in accordance with the formalities prescribed by law (2 R. S. p. 57, § 1); and that ‘every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of sixteen years and up- wards, ofsound mind and memory and no other, may give and bequeath his or her personal estate by will in writing’ (2 R. S. p. 60, § 21); and the statute of wills, of 84 and 35 Hen. VIII., declares that no will of lands shall be valid if made by an ‘idiot, or by any person of non-sane memory.’ But competency to execute a testa- ment does not exist, unless the alleged testator has reason and understanding suffi- cient to comprehend such an act. Swinburne on Wills, part 2, sect. 4; Marquis of Winchester case, 6 R. 23a; Combe’s case, Moore, 759; Herbert v. Lows, 1 Ch. 12, 18; Mountain v. Bennett, 1 Cox, 853. In the Marquis of Winchester case it is said, that ‘ by law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions; but he ought to have a disposing wemory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sound and perfect memory.’ “In Mountain v. Bennett, 1 Cox, 358, the Lord Chief Baron said: ‘ Two things must be made out, in the first instance, by those who support the will, — the formality of the instrument and the sanity of the person making it; that if a party impeaching a will relies upon actual force being used upon the testator, it is incumbent on him to show it;’ and he adds that ‘there is another ground, which, though not so dis” tinct as that of actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, that is, if a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet, if such dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.’ “Lord Kenyon, in addressing the jury in Greenwood v. Greenwood, 8 Curteis, App. 2, says: ‘I take it, a mind and memory competent to dispose of his property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he hada power of summon- ing up his mind so as to know what his property was, and who those persons were, that then were the objects of his bounty, then he was competent to make his will.’ “Tn Marsh v. Tyrrell, 2 Flagg, 122, that experienced and learned judge, Sir Jonn Nicuo tt, said: ‘It is a great but not uncommon error to suppose that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect sound mind, and is capable of making a will for any pur- pose whatever; whereas the rule of law, and it is the rule of common sense, is far CONVERSE v. CONVERSE. 657 otherwise ; the competency of the mind must be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case.’ “The observations of Ersxrnx, J., in Harwood v. Baker, 8 Moore, Priv. C. 282- 290, a case not unlike that now under consideration in some of its leading features, are worthy of note. He says: ‘But their lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but that he must have also capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participa- tion in that property ;’ and he justly and truthfully adds, ‘that the protection of the law is in no cases more needed than it is in those where the mind has become too much’ enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration; and therefore, the question which their lord- ships propose to decide in this case is, not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it; but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.’ “Mr. Justice Wasaineron, in Harrison v. Rowan; 8 Wash. C. C. 585, speak- ing of the capacity of a testator necessary to a valid will, remarks: ‘He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged; «@ recollection of the property he means to dispose of; of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.’ ‘In Den v. Johnson, 2 South. 454, the chief justice, in charging the jury on this point, said, ‘ that a disposing mind and memory is a mind and memory which has the capac- ity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood ; that, though it has been sometimes said, as had been stated from the books, that if one could correctly tell his name, say the day of the week, or even ask for food, it is a sufficient evidence of a disposing mind; yet such sayings, though they show that wills are not lightly to be set aside on suggestions of incapacity, can and ought to have but little weight with rational men, investigating the truth upon their oaths ; that if, upon the whole, they should be of opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and the will in question was devised by other per- sons, and only assented to by her upon being asked, without the power of understand ing it, then they ought to find for the plaintiff;’ that is, that it was not her will. “In Boyd v. Eby, 8 Watts [66], Serceanr, J., in delivering the opinion of the Court says: ‘The great, broad, and intelligible question is, whether the mind was restored so as to be sound, whole, compos; or whether a portion of its thinking and judging powers, as connected with the subject of the will, remained mangled and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate with judgment and discretion.’ “In Shropshire v. Reno, 5 J. J. Marsh. 91, Rosertson, C. J., observed that the facts in that case led the Court to the opinion: ‘That the testator had not a dispos- ing mind, or that, if he ever had, it was not in a disposing state. He was not super- annuated, nor was he absolutely stultus or fatuus; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by 42 658 IDIOCY, LUNACY, ETC. philosophy but by law.’ Converse v. Converse, 21 Verm. 168, lays down the rule, that if ‘the testator when he made the will was capable of knowing and understand- ing the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, ‘both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them, then he possessed a sound and disposing mind and memory.’ This rule was approved by RepFiEtp, J., who added: ‘He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relations to each other, and be able to form some rational judgment in relation to them.’ “Tn 1828, Chancellor Watwortn, in Clarke v. Fisher, 1 Paige, 171, said: ‘The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judg- ment in reference to the situation and amount of such property, and to the relative claims of different persons who are or might be the objects of his bounty.’ In that case the chancellor reversed the decision of the surrogate, which admitted the will of John Fisher to probate.» The testamentary capacity of John Fisher was again the subject of a judicial investigation before Vice-Chancellor SanpForp, in 1845 and 1846 (8 Sand. Ch. 351), and he held that he had testamentary capacity. ‘This decree was reversed on appeal by the chancellor, who held the will void, and this Court, on appeal, affirmed the decree of the chancellor (2 Comst. 498). It is stated in a note by the reporter, that a majority of this Court were of the opinion, upon all the facts, that the chancellor had properly set aside the will, but without passing upon the ques- tion as to the degree of mental capacity necessary to make a will, affirming the prop- osition that the testator in that case had not testamentary capacity. SHANKLAND, J., said that, regarding, as he did, the cases of Stewart v. Lispenard (26 Wend. 255) and Blanchard v. Nestle (3 Denio, 87) as fixing the standard of testable capacity at any point above that of the idiot and the lunatic, the will cannot be declared void for the want of a sound disposing mind. The case of Stewart v. Lispenard has challenged much discussion in this State, and has not been regarded with favor by the Bench or the Bar. The circumstances under which it was heard and decided, on the part of the Court, are such as to carry with it little ifany weight of authority. ‘In that case, the will of a person conceded to-be but a slight remove in intellectual power above an idiot was, by a decree of that Court, directed to be admitted to probate. The argument of the case was commenced in that Court on the 21st of December, 1841, and concluded on the 24th. On the 31st of that month, the last day of the official term of one-fourth of the senate, the case came up for decision, and was decided with little opportunity for an examination of the facts, which, the report says, were contained in a voluminous case of upwards of three hun- dred pages, and without the benefit of any written opinion, except that of Senator Livingston (and which has since been published), or any suggestions even from the judges of the Supreme Court; the only justice of that Court, being present by cour- tesy to form a quorum, stating that he had no written opinion to present, not having had leisure since the argument was closed to digest the facts of the case, or even to read the numerous authorities which had been cited, amounting to nearly or quite a hundred cases, and he declined to deliver an opinion. Senator Verplanck orally stated his reasons for reversal, and thereupon the Court, composed exclusively of senators, by a vote of 12 to 6, reversed the decree of the chancellor, which affirmed the judgment of the circuit judge, who affirmed the decree of the surrogate, refusing to admit the will to probate, and the Court, by a vote of 11 to 8, made a decree CONVERSE v. CONVERSE. 659 directing the will to be admitted to probate. After the breaking up of the Court, the learned opinions of two of the senators, who voted to reverse the decree of the three Courts below, were published and appear in our reports; but they must be regarded as containing the views of the distinguished senators and not those of the Court. We fully concur in what is said by Mr. Justice CLERKE, in Thompson v. Thompson, 21 Barb. 116, that ‘the opinions of these learned and distinguished senators in this case are not binding authority.’ It is not an inappropriate commentary upon this case to add that subsequent to the decision of the Court of Errors in an action of ejectment in the Superior Court of New York, before Chief Justice OAKLEY and a jury, the jury, under instructions from the Court, found that this same Alice Lispe- nard was an idiot, and had no testamentary capacity, thus annulling this same will as to real estate. This verdict was rendered after a protracted investigation, and the examination of a large number of witnesses. “ Blanchard v. Nestle, 8 Denio, 87, was decided in the Supreme Court in 1846, and affirmed the doctrine of Stewart v. Lispenard, and mainly on the authority of that case, that mere imbecility of mind in a testator, however great, will not avail against his will, provided he be not an idiot or a lunatic. : In Stanton v. Weatherwax, 16 Barb. 259, the Supreme Court of the fifth district reversed a judgment of the surrogate, in which he applied to the testator the rule in reference to idiots and imbeciles, as stated and illustrated in the Lispenard case. The Court say that ‘perhaps the unsoundness of the testator’s mind extended to so many subjects, and perverted his judgment in relation to so many topics, as to ob- scure and distort his entire mental faculties, and to amount to a general unsoundness of mind, which would entirely incapacitate him from making a rational or valid dis- position of his property.’ “In Newburn v. Goodwin, 17 Barb. 236, Strone, J., thinks the rule established, re- ferring to the Lispenard case and Blanchard v. Nestle, that the wills of excessively weak persons, and by those he says he means persons of the lowest degree of mental capacity, where there is a glimmer rather than light, are to be sustained, and he says, ‘ we must submit to it, whatever may be our opinion as to its necessity, propriety, or expediency.’ “ This Court, in two late cases under its consideration (Buel v. McGregor, and in the matter of the will of Richard Ustick), (a) has not considered this rule of obliga- tory force upon it, but has been disposed to give the language used in the statute its natural and obvious import and meaning. We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is com- petent to dispose of his estate by will.” (a) The reporter does not understand either of those cases as professedly impeach- ing the law of Stewart v. Lispenard, or as being regarded by the judges who delivered the opinions in them respectively as settling any point of law whatever. They turned upon mere questions of fact ; and such cases have not heretofore been regarded, either by-the Court or the reporters, as of such service to the profession as to justify their publication. The opinion in Buel v. McGregor was prepared by Denio, J., who, as is apparent from the present case, did not intend to overrule the law of Stewart v. Lispenard, whatever he might think of its application in that particular case. 660 IDIOCY, LUNACY, ETC. 9 (1 Addams’ Ece. 279, 8. c. 3 id.79;7 5 Russell, Ch. Ca. 163. Prerogative Court of Canterbury, Easter Term, 1826.) Dew v. CLARK. Partial Insanity : when a good Defeasance of a Will. — Partial insanity is good in defeasance of a will, founded immediately (so to be presumed) in or upon such partial insanity. If A., then, make a will, plainly inofficious, in respect to B., and is proved, at the time of making it, to have been under a morbid delusion, as to the character and conduct of B., the Court of Probate will relieve against it, by pronouncing this will to be invalid, and holding A. to have died intestate in law; how sane soever, in other particulars, or even generally, A., at the time in question, of making the will, may be proved to have been. Jupcment. Sir Joun Nico. This is a question as to the legal force and validity of the will of a Mr. Ely Stott, who is the party deceased in the cause. He died on the 18th of November, 1821, at the age of seventy-two years, leaving a widow, and a daughter by a former wife, an only child ; and it should seem that, at the time of his death, he was possessed of personal property to the amount in value of nearly 40,0007. In the month of Febru- ary, 1821, a commission (in the nature of a writ de lunatico in- quirendo), to inquire of the lunacy of the deceased, issued from the High Court of Chancery, at the instance or petition of Mary Stott, the supposed lunatic’s then wife. And the deceased was found, under that commission, to be of unsound mind; and to have been in the same state of mind from the first day of January, preceding, or in the same year, 1821. The will, however, the subject of the present suit, was made previous to this finding of the jury by several years, bearing date the 26th of May, 1818. The following in substance are the contents of that will. It gives and bequeaths to Mary Stott, the wife of the deceased, all the deceased’s household furniture, linen, china, and books; to his nephews, Thomas and Valentine Clark, legacies of 1007. and 150/., respectively ; and to his friend, Mr. Daniel Goff, a legacy (the sum left in blank). It gives and be- queaths to his three executors (after appointed), Mr. Reid, Mr. 1 The report here given is that in 8 Addams’ Ece. 79. DEW v. CLARK. 661 @ Fletcher, and Mr Rawlings, their executors, administrators, and assigns, the sum of 1,333/. 6s. 8d. three per cent annuities upon trust to pay the dividends or interest to Lydia Hey, spinster, for and during the term of her natural life; and a further sum of 1,333/. 6s. 8d., like stock, upon trust to pay the dividends or interest unto and equally between the children of Elizabeth Jouls, de- ceased, for and during their natural lives, and for and during the natural life of the survivor of these; so that such survivor, during his or her life, shall enjoy the whole of such dividends or interest. It gives and bequeaths to his said executors a further sum of 2,833/. 6s. 8d., like stock, upon trust to pay the dividends or interests to his (the deceased’s) daughter Charlotte Mary Dew, wife of George Dew, for her life, to her own sole and separate use; and it directs that his said executors do and shall lay out and invest all such moneys, when recovered, as may be due to the deceased at the time of his death, as the representative of his first wife, Mary Stott, under the will of the honorable Charlotte Clive, in the public stocks or funds; and that the interest or dividends of such public stocks or funds shall also be paid to his said daughter, for and during her life, to her own sole and sep- arate use, as above. It provides, that if one or more servant or servants shall have lived with the deceased five years, and shall be living with him at the time of his death, his said executors shall invest so much in the public stocks or funds as will produce an annuity or annuities, for life, of 40/., payable to such servant: or servants. It directs, that each and every of the said several principal sums shall, from and after the several deaths of the said several annuitants, respectively fall into and become part of the deceased’s residuary estate, after disposed of. It gives and be- queaths that residue, real and personal, of what nature or kind soever, to the said executors, upon trust, to convert the same into moneys, and invest such moneys in the public stocks or funds, or upon government or real securities, at interest; and, upon further trust, to pay to his said wife, Mary Stott, from and out of the interest, dividends, or annual produce of the said stocks, funds, or securities, the sum of 400/. per annum, for her life, or during her widowhood ; and it appoints, that, from and after the decease or marriage of his said wife, they, the said executors, shall stand possessed of, as well the stock, &c., from which such annual sum shall accrue, as all the other stocks, funds, and se- 662 IDIOCY, LUNACY, ETC. curities, to be purchased by and with the moneys by them got in, as aforesaid, upon trust, for the benefit of all and every the child or children of him, the deceased, by his said wife, Mary Stott, with benefit of survivorship, &c. But, in the event of his leaving no child by his said wife, or in'the event of his leaving a son or sons only, that die under age, without lawful issue; or a daughter or daughters only, that die under age and unmarried, — it then provides that they, the said trustees, do and shall transfer the whole of the aforesaid stocks, funds, and securities to the nephews, the said Thomas and Valentine Clark, or the survivor of them, absolutely ; further provided only, in case of the death of either of his said nephews, in his (the deceased’s) lifetime, leaving issue, then that his share shall be payable unto, and equally between, such issue, if more than one; but if only one, to such sole issue. Lastly, Mr. Reid, Mr. Fletcher, and Mr. Rawlings are named executors, and the said Mary Stott, during her widowhood, executrix of the will. Such is the will, the sub- ject of the present suit, in point of substance; in point of form, it is an instrument of some length, contained in seven sheets of paper, technically drawn up, and it was executed by the deceased. in the presence of three subscribed witnesses. Several scripts are before the Court, in the shape of drafts or sketches of former wills or codicils of the deceased. There is, also, a former will, itself bearing date the 19th of March, 1817, being the script marked No. 5. The purport of each and every of these is to give the daughter a life-interest in a comparatively small portion only, of the property of the deceased. For in- stance, the purport of No. 1 is to give her an annuity of 801. for life, the residue to her child or children, if any, born in lawful wedlock, on attaining the age of twenty-one; “such child or children to be put out to nurse, and then to school, unconnected with the parents, and. brought up in evangelical principles ;” in case of the daughter having no children, then the residue to the Bible Society. By the script, No. 8, the daughter is to have 1007. a year for life, the residue to her issue, as above, at the age of twenty-one; and, failing such, to the Bible Society and the Church Missionary Society in equal moieties. The same in script, No. 4, with an express provision that the child or children of the daughter, from and after the age of six years, shall “be placed entirely under the direction of his (the deceased’s) exec- DEW v. CLARK. 663 utors and trustees for the time being, as to the manner of their education, and every other matter connected with their bringing up, maintenance, and support.” By the script, No. 5 (the will of March, 1817), certain parts of the residue (failing the daugh- ter’s issue, as above) are bequeathed to trustees, in trust for Thomas and Valentine Clark; and the remainder only, in trust for certain public institutions. But by the will now propounded, as already said, Thomas and Valentine Clark are the general residuary legatees, in the first instance; no part of the property of the deceased is bequeathed, by this, to the issue of the daughter (then a married woman), if any. Even the principal stock, out of which the daughter’s provision for life, of some- where about 1002. per annum, is to accrue, is not given and bequeathed by this will, upon her death, to her issue; it is to fall into, and become part of, the residuary estate bequeathed, as above, to the nephews, the Mr. Clarks. Administration, with this will, of May, 1818, annexed, of the effects of the deceased, is granted to Thomas and Valentine Clark, the residuary legatees (the executors renouncing), on the 29th of December, 1821. In the month of April, 1822, a citation issues, at the suit of Charlotte Mary Dew, the deceased’s only child, in effect, calling upon the administrators, either to prove the will, per testes, in solemn form, to the satisfaction of this Court, or to submit to the Court’s pronouncing the deceased to have died intestate in law. The nephews (the administrators), so called upon, formally pro- pound the will, in a plea known here as a common condidit, from its merely pleading the deceased to have made the will, being of sound mind, and so forth, in a set form, in common use, as of common application in this description of cases. The daughter’s plea, in opposition to this, admits the facts of the case to be as pleaded in the condidit, with a single excep- tion. It admits, in effect, that the deceased gave instructions for and made this will as alleged in the condidit; and that he did all this of his own mere motion. It imputes no fraud or circumvention, either to the nephews or to any other party or parties, as with relation to this will; it ascribes it, in no degree or respect whatever, to external control or influence of any sort exercised over or upon the deceased. It consents, in effect, to its being taken as the act of the deceased alone, but it denies it to have been his act, being of sound mind at the time; in 664 IDIOCY, LUNACY, ETC. which denial consists the sum total of the case which it sets up, on the daughter’s part, in opposition to the will. It alleges, in order to sustain that case, that the deceased conceived an irra- tional antipathy to this daughter, his only child, in her earliest infancy; and that he was actuated by such during and through- out the whole remainder of his life; and it charges, that the will sought to be impeached was founded in, and owing solely to, this irrational antipathy, not being (as averred in, and necessarily to be proved upon, the condidit) the act of a testator of sound and disposing mind. And it further alleges, in aid of that case, insanity or mental aberration, as visible in and to be collected from other parts of the deceased’s conduct, into the particulars of which it enters, though, at the same time, principally betraying itself in his feelings towards and treatment of his daughter ; which last are, accordingly, more especially pleaded, and upon which last it is evidently meant by the daughter principally to rely. A responsive allegation is filed, on the part of the nephews, con- sisting of thirty-one articles, accompanied with a variety of annexed exhibits. The objects of that allegation, briefly stated, are: 1st, To sustain the deceased’s general sanity, by reference to his general history and to his conduct throughout his whole life generally ; -2dly, but very principally, its aim is to show that the deceased’s treatment of his daughter, so in particular relied on in proof of the contrary, as I have said, admitting it possibly to have been harsh and severe, was still not irrational or insane. Accordingly, it formally imputes it to a series of gross misconduct on the daughter’s part, and to the operation or effect of this upon “great violence and irritability,” upon “great pride and con- ceit,” upon ideas of the “ total and absolute depravity of human nature, and the necessity of sensible conversion (derived from rigid Calvinistical principles),” and upon “high notions of pa- rental authority ;” of all which it pleads, in form, the deceased’s character to have been made up. Lastly, the daughter rejoins upon this allegation, either contra- dicting or explaining the several principal facts, of both descrip- tions, pleaded in it; and in some few particulars also, amplifying and amending her own original case, as the Court permitted her to do, under special circumstances in the case, for reasons into which it entered at large, when the admission of this rejoinder was formally debated.) 1 See vol. ii. p. 102 et seg. DEW ¥v. CLARK. 665 The above is a mere outline of the several pleas, sufficient however to show that the case before the Court is one of great difficulty (in some of its features indeed a perfectly novel case), and consequently to be treated by the Court with proportionable care. Its importance, indeed, is sensibly felt by the Court, which has most attentively considered the whole evidence upon which its judgment is to be ultimately framed. Jt thus appears, upon the showing of these several pleas, that the true question at issue between the parties in this cause is a mere single question of fact: Was the deceased, who is admitted to have made this will, insane at that time? or, was he a person of a sound mind and memory? His daughter it is who alleges him to have been the first of these, or insane at that time; and the onus probandi, the burden of proving this, clearly rests with her, she being the party who affirms or sets up. In discharge of that onus, she has produced a body of evidence to much in the conduct of the deceased, to say the very least of it, extraordinary and extravagant in the highest degree. I feel myself at liberty, even here, to go this length, in speaking of the evidence on her part; as the adverse counsel, in the course of their argument, have admitted it to be good so far. The adverse case, indeed, taken as a whole, has admissions to nearly this ex- tent on the face of it. Still, however, it was pleaded, it was endeavored to be proved, and it has been strongly argued, as the true result of the whole evidence, on the part of the nephews, that no part of the deceased’s conduct ever evinced actual in- sanity; that the whole of it is to be fairly accounted for by the operation of untoward circumstances upon peculiar feelings and habits; and that nothing occurs in the evidence to justify any other conclusion than that the deceased was, at all times, in the full possession of (and so was competent, at all times, to the per- formance of any act requiring), in the technical language of these Courts, “ thought, judgment, and reflection.” And here a subject of inquiry presents itself, fit and necessary even, to be disposed of in the first instance (previous, that is, to any con- sideration of the evidence, for the purpose of arriving at a due estimate of the merits of the case), which is this: What is the true criterion of madness or insanity? And herein, very prin- cipally, as with reference to the present question, — where is it that mere eccentricity or extravagance ends, and this begins ? 666 IDIOCY, LUNACY, ETC. It may safely be assumed at least, to the present auditory, in the outset of this inquiry, that madness subsists in every variety of shape and degree. It subsists in the maniac chained to his floor; it subsists in the patient afflicted with mental aberration on certain subjects, or on a certain subject only ; and in respect of such even never betraying itself in violence or outrage. The affliction is the same, in both cases, in species; the difference is only in degree. The intermediate degrees between the highest and lowest grade of insanity are almost infinite. Patients afflicted with this terrible infirmity, in some minor degree, often conduct themselves rationally in all but certain respects; and this not in show or semblance only, but in truth and substance. Instances have occurred of patients in Bedlam employed as keepers, in some sort, of their fellow-madmen, they themselves being, at the same time, essentially insane. It is well known that a sufferer in this class, who fancied and styled himself Duke of Hexham, became the agent of his own committee for the management of his own estate, and did, for a time, the duties of that office, it is said, not incorrectly. Few madmen are so mad as to be incapable of some degree of self-control; and the cunning which madmen are often found to exercise, if bent upon carrying some favorite point, is a circumstance of the malady too well known to require any specific illustration. Instances, again, of the extraordinary power of, at times, concealing their infirmity, commonly inherent in madmen, are familiar to most people, as having occurred within their own personal observation. 1 The following instances were especially noticed by the Court, from Mr. Ers- kine’s speech of the trial of James Hadfield, for shooting at his late majesty. The first may be given in Mr. Erskine’s own words. : “T examined,” he says, “for the greater part of a day, in this very place [the Court of King’s Bench], an unfortunate gentleman who had indicted a most affec- tionate brother, together with the keeper of a mad-house at Hoxton, for having imprisoned him as a lunatic, whilst, according to his evidence, he was in his perfect senses. I was, unfortunately, not instructed in what his lunacy consisted, although my instructions left me no doubt of the fact ; but, not having the clew, he completely foiled me in every attempt to expose his infirmity. You may believe that I left no means unemployed which long experience dictated, but without the smallest effect. The day was wasted ; and the prosecutor, by the most affecting history of unmerited suffering, appeared to the judge and jury, and to a humane English audience, as the victim of the most wanton and barbarous oppression. At last, Dr. Sims came into Court, who had been prevented by business from an earlier attendance; and from him I learnt that the very man whom I had been above an hour examining, and with DEW v. CLARK. 667 Still, however, with all this, among the vulgar, some are for reckoning madmen those only who are frantic, or violent to some extent. Insanity, however decided, unaccompanied with such symptoms, they are content to refer to eccentricity or extrava- gance. Others, again, in the opposite extreme, are too apt to confound mere folly with phrensy; and to describe as odd or eccentric, or in some such phrase, patients who, in better judg- ments, are actually and essentially insane. What, then, to come back to our proposed subject of inquiry, is the true criterion of insanity? and, principally, how is it distinguished (this being every possible effort which counsel are in the habit of exerting, believed himself to be the Lord and Saviour of mankind; not merely at the time of his confinement, which was sufficient for my defence, but during the whole time that he had been triumphing over every attempt to surprise him in the concealment of his disease. I then affected to lament the indecency of my ignorant examination; when he ex- pressed his forgiveness, and said with the utmost gravity and emphasis, in the face of the whole Court, ‘I am the Christ!’ And so the cause ended.” The other, a still more memorable instance of the power of concealing this malady, is the following, as stated to Mr. Erskine by Lord Mansrietp. “A man by the name of Wood,” said Lord MansFr1Exp, “had indicted Dr. Monro for keeping him as a prisoner in a mad-house at Hoxton, while he was sane. He underwent the most severe examination by the defendant’s counsel without exposing his complaint ; but Dr. Battie having come upon the bench by me, and desired me to ask him ‘ what was become of the princess, whom he had corresponded with in cherry-juice ?’ he showed in a moment what he was. He answered that there was nothing at all in that, because having been (as everybody knew) imprisoned in a high tower, and being debarred the use of ink, he had no other means-of correspondence but by writing his letters in cherry-juice, and throwing them into the river which surrounded the tower, where the princess received them ina boat. There existed, of course, no tower, no imprisonment, no princess, no river, no boat ; but the whole was the invet- erate phantom of a morbid imagination. I immediately directed Dr. Monro to be acquitted; but this man, Wood, being a merchant in Philpot Lane, and having been carried through the city in his way to the mad-house, he indicted Dr. Monro over again, for the trespass and imprisonment, in London, knowing that he had lost his cause, by speaking of the princess at Westminster; aud such is the extraordinary subtlety and cunning of madmen, that, when he was cross-examined on the trial in London, as he had successfully been before, in order to expose his madness, all the ingenuity of the bar, and all the authority of the Court, could not make him say a single syllable upon that topic which had put an end to the indictment before; al- though he still had the same indelible impression as before, as he signified to those who were near him; but conscious that the delusion had occasioned his defeat at Westminster, he obstinately persisted in holding it back.” (a) See Mr. (afterwards Lord) Erskine’s speech on the trial of James Hadfield. Howell’s State Trials, vol. 27, p. 1807 et seq. (a) This evidence at Westminster was then proved against him by the short-hand writer, upon which Dr. Monro was, of course, again acquitted. 668 IDIOCY, LUNACY, ETC. obviously our principal concern) from eccentricity or extrava- gance merely. The true criterion— the true test—of the absence or pres- ence of insanity I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term; namely, delusion. Wherever the patient once conceives some- thing extravagant to exist, which has still no existence whatever but in his own heated imagination ; and wherever, at the same time having once so conceived he is incapable of being, or, at least, of being permanently, reasoned out of that conception, — such a patient is said to be under a delusion, in a peculiar half-technical sense of the term; and the absence or presence of delusion, so understood, forms, in my judgment, the true and only test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity to be almost, if not altogether, convertible terms; so that a patient under a delusion so understood on any subject or subjects in any degree, is, for that reason, essentially mad or insane on such subject or subjects in that degree. On the contrary, in the absence of any such delusion, with whatever extravagances a supposed lunatic may be justly chargeable, and how like soever to a real madman he may either speak or act on some or on all subjects, still, in the absence, I repeat, of any thing in the nature of delusion so understood as above, the supposed lunatic is, in my judgment, not properly or essentially insane. The Court is confirmed in, or rather possibly has derived this, its own view of the subject, by and from writers, as well medical as other, best qualified to discuss it ; and upon whose authority, accordingly, it may safely rely. It is thus, I apprehend, that delusion, in the sense that I have explained it, is made the distin- guishing feature of insanity by Dr. Battie, in the first chapter of his celebrated essay or treatise on that disorder. On the same principle it is that Dr. Willis, in a recent publication on mental derangement,! lays it down that insanity from disease (as con- tradistinguished from native insanity) chiefly consists in the ‘‘pertinacious adhesion of the patient to some delusive idea in opposition to plain evidence of its falsity.” And Mr. Locke, in treating of the difference between idiots and madmen, had before 1 A treatise on mental derangement, containing the substance of the Gulstonian lecture for 1822, by Francis Willis, M.D. DEW v. CLARK. 669 said, in perfect accordance with the above, that the infirmity of madmen was not so much in any “ loss of the reasoning faculties,” as in * delusion,”’ on their parts; or, as he terms it, “in their mis- taking for truths some ideas wrongly joined together.” The passage from Mr. Locke, indeed, is illustrative of the subject before the Court, in so many respects (as will appear in the sequel) as to justify the Court’s taking this occasion to recite it at length. “ The defect in naturals,’ says Mr. Locke, ‘“‘ seems to proceed from want of quickness, activity,.and motion, in the intellectual faculties, whereby they are deprived of reason; whereas madmen, on the other side, seem to suffer by the other extreme. For they do not appear to me to have lost the faculty of reasoning: but, hav- ing joined together some ideas very wrongly, they mistake them for truths; and they err, as men do that argue from wrong prin- ciples. For, by the violence of their imaginations, having taken their fancies for realities, they make right deductions from them. Thus you shall find a distracted man, fancying himself a king, with a right inference, requires suitable attendance, respect, and obedience ; others, who have thought themselves made of glass, have used the caution necessary to preserve such brittle bodies. Hence it comes to pass, that a man, who is very sober, and of a right understanding in all other things, may, in one particular, be as frantic as any man in Bedlam; if, either by any sudden, very strong impression, or long fixing his fancy upon one sort of thoughts, incoherent ideas have been cemented together so power- fully as to remain united. But there are degrees of madness as of folly ; the disorderly jumbling of ideas together is in some more, in others less. In short, herein seems to be the difference between idiots and madmen, that madmen put wrong ideas to- gether, and so make wrong propositions, but argue and reason rightly from them; but idiots make very few or no propositions, and reason scarce at all.” 4 It may be assumed, that these authorities sufficiently for- tify the Court’s position, with respect to the true test or criterion of insanity, to justify it in pronouncing that, if the, evidence in this cause be satisfactory to the existence of de- lusion in the mind of the deceased, at the time of his making this will, it is, also, satisfactory to the existence in the mind 1 Locke’s Treatise concerning the Human Understanding, Book ii. c. xi. § 13. 670 IDIOCY, LUNACY, ETC. of the deceased at that time, of some degree of insanity ; whether, indeed, of that degree of insanity, and whether of insanity of that kind, or rather on that subject, which should operate to defeat this will, is another question. But, before I proceed to consider the nature and effect of the proofs of this delusion, both on the one side and on the other, it may be proper that I should dispose of an objection raised by the counsel for the residuary legatees, founded on the term ‘partial insanity ;” which had often been used, by the counsel for the next of kin, in the course of their argument in the cause. It has been said, then, repeatedly by the counsel for the resid- uary legatees, that this “partial insanity” is a something un- known to the law of England. Now if it be meant by this that the law of England never deems a person both sane and insane at one and the same time upon one and the same subject, the assertion is a mere truism (as well, indeed, in reason as) in law; and, as such, is incapable of being effectively opposed. At the same time, as no such sort of partial insanity is set up by the daughter, the case of partial insanity which she has really under- taken to sustain is at no risk from the truth of that position, so understood, being conceded. But, if by that position it be meant and intended that the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time upon different subjects (the most usual sense, this last, of the phrase “+ partial insan- ity ;”’ and the one in which I take it to have been used through- out by the counsel for the next of kin), there can scarcely be a position more destitute of legal foundation; or, rather, there can scarcely be one more adverse to the stream and current of legal authority. It is only, I should conceive, by the way, in point of legal con- sideration, that the existence of this sort of partial insanity could by possibility be meant to be questioned. It is a common par- lance to say of a man that he is mad on such a subject, or on such subjects; and it is a common parlance, not by any means founded upon notions which are confined to, or only entertained and pressed by, the vulgar. For instance, Mr. Locke, if it be worth while to refer to his authority for so self-evident a position, has just told us that “a man who is very sober, and of a right unde&standing in all other things, may, in one particular, be as DEW v. CLARK. 671 frantic as any man in Bedlam;” which is precisely in point. But to consider briefly what occurs of legal authority on the sub- ject of partial insanity. A single passage from Lord Chief Justice Haus, upon this head, may render possibly any other authority on the subject unneces- sary. Lord Hate says: ‘ There is a partial insanity of mind, and a total insanity. The former is either in respect to things [‘ quoad hoe, vel quoad illud insanire;’ some persons that have a competent use of reason, in respect to some subjects, are yet under a particular dementia in respect of some particular dis- courses, subjects, or applications] ; or else it is partial in respect of degrees [and this is the condition of very many, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason].’’} In what follows, upon this passage, Lord Haue is considering the application of the doctrine of partial insanity to criminal cases only ; in other words, his observations, occurring in a work on criminal law, are limited to the species or degree of insanity necessary to protect their agents from criminal responsibility for actual crimes committed. But the case of Greenwood,? often re- ferred to in the argument, is good in proof of the equal applica- bility of the doctrine to cases of contract or civil cases. It is even more than this; being not only good in proof of the ap- plicability of the doctrine of partial insanity to civil cases gen- erally, but recognizing, in particular, that such partial insanity will avail to defeat a will, the direct offspring of that partial insanity, both here and at common law; though the testator, at the time of making it, were sane in all respects upon ordinary subjects. Consequently, the case of Greenwood is a precise 1 Pleas of the Crown, part 1, c. 4, p. 29. 2 See 13 Ves. Jr. 89; 8 Bro. C. C. 444, and speech of Mr. Erskine, on the trial of James Hadfield, ub. sup. “That gentleman, ‘Mr. Greenwood,’ whilst insane, took up an idea that a most affectionate brother had administered poison to him. Indeed, it was the prominent feature of his insanity. In a few months he recovered his senses. He returned to his profession as an advocate, was sound and eminent in his practice, and, in all re- spects, a most useful and eminent member of society ; but he never could dislodge from his mind the morbid delusion which disturbed it ; and, under the pressure, no doubt, of that diseased prepossession,! he disinherited his brother.” Mr. Erskine’s speech, ub. sup. Of Greenwood’s case, see further, in the judgment (post), and notes (a) and (2). 672 IDIOCY, LUNACY, ETC. recognition of the principle, upon which the Court admitted the allegation originally setting up, and to which it is bound to adhere in ultimately adjudicating upon the present case of partial insanity ; and it furnishes, of itself, a more than sufficient answer to the objection that this partial insanity is a something un- known to the law. At the same time, the case of Greenwood, how- ever accordant with the present case, in point of general principle, is materially distinguished from it by one, not unimportant, cir- cumstance. There, the deceased, being insane, and so admitted to be on all hands, insanely conceived, among other, no doubt, equally absurd imaginations, that his brother, and only next of kin, had administered poison to him. His recovery, admitted in other respects, was denied in this last particular; and, influenced (so said) by still subsisting insanity in this last particular, the deceased made the will, disinheriting his brother, the validity of which was at-issue in that cause. And the question, in Green- wood’s case, accordingly was, whether that insane aversion which the deceased was admitted to have once felt towards his brother had, or had not, subsided, — was, or was not, in operation at the time when he made his will. Here the question is, whether that actual aversion, or antipathy, or call it what you will, which the deceased is admitted to have felt towards his daughter, and under the present impression of which he is hardly denied to have made this will, was either founded in, or even had any connection with, insanity at allon his part? It is, whether he, the deceased, at the time of making this will, had ever labored under mental derangement, either on the subject of his daughter in particular ; or, in fact, on any subject? It is this which distinguishes the present case from that of Greenwood, and which constitutes at once the novelty and difficulty of the present case ; the novelty and difficulty, I mean, in point of proof; for, really, in point of general principle, I do not see that Greenwood’s case and the present are distinguishable. In speaking of Greenwood’s case throughout, I am to be understood as confining myself to the principle adopted as the law in that case: of the evidence I can know nothing; publication of the evidence (if any) taken in Greenwood’s case not having passed in this Court. Greenwood’s case, in this Court, terminated early in a compromise ;! as it is 1 After an allegation given by the brother, responsive to the condidit, —upon which, however, it is believed, that no evidence was taken. The Court, it should be said, also referred, in this part of its judgment, to a case DEW v. CLARK. 678 also terminated, though not till after two conflicting verdicts, at common law.! The Court, after this ample discussion of the principles appli- cable to the facts of the case before it, now approaches, at some advantage, the facts of the case themselves.2 . . . The rule laid down in this case as to when partial insanity is a good detfea- sance of a will may be regarded as well settled. See Fulleck »v. Allinson, 3 "Hagg. Ecc. 527; Frere v. Peacock, 1 Rob. Ecc. 442; Townshend »v. Townshend, 7 Gill, 10; Boyd v. Eby, 8 Watts, 66; Duffield v. Morris’ Ex’r, 2 Harring. 375; Seamen’s Friend Society v. Hopper, 83 N. Y. 619; Den ex dem. Trumbull v. Gibbons, 22 N. J. Law, 117, 156; Potts v. House, 6 Geo. 120, 1386; Robinson v. Adams, 62 Me. 369. See also State v. Jones, 50 N.H. 895; Gardner v. Lamback, 47 Geo. 1383; Shelf. on Lun. 296 ef seq.; 1 Redf. on Wills (3d ed.), 74 e seq., 80, and authorities cited. The same rule applies also to con- tracts. See notes to Dennett v. Den- nett (ante, p. 558). The subject is well considered in Dunham’s Appeal, 27 Conn. 192, so much of which as relates to this ques- 324; Boardman v. Woodman, 47 N.H. tion, is herewith given.® actually determined, partly on the principle adopted as law in Greenwood’s case, that of Heath v.Watts, Pr. 1798, Del. 1800. ; 1 The jury, finding for the will, on the first trial, in the Court of King’s Bench, and against it on the second trial, in the Court of Common Pleas. 2 The learned judge here entered into an examination of the evidence at very great length, which is too voluminous to be given herewith; and, from such examination, concluded the will in question to be the offspring of a morbid delusion, and hence pro- nounced against it. 3 « Appeal from a decree of a Court of Probate approving the will of Lucy Kelsey. . . - “ The appellants requested the Court to charge the jury as follows : — “«], That if the testatrix harbored a delusion, —that is, fancied things to exist which had no existence, and of the existence of which she had no reasonable evidence, — she was, while harboring such delusion, of unsound mind, and her will made at such a time would be void. «««2. That if the testatrix harbored an unreasonable antipathy to her sisters, not justly caused by any acts of unkindness or improper conduct on their part, and had no reasonable evidence of such unkindness or improper conduct, this would be a delusion and would constitute unsoundness of mind; and her will, made during the existence of such delusion, would be void. «¢3, That if the testatrix made this will under the influence of this unreasonable and unfounded aversion and antipathy to her sisters, and, in consequence of that aversion and antipathy, disinherited them, such will is void, although at the time of making the will she was in fact sane on all ordinary subjects.’ “The Court did not so instruct the jury, but charged them as follows: ‘If the testatrix, at the time of executing this will, harbored an unnatural and unreason- able antipathy towards her sisters, and that antipathy was the result of a morbid delusion as to the character and conduct of those sisters, the will is void, although she may have been sane in all other respects.’ “The jury rendered a verdict in favor of the appellees, and thereupon the appel- lants moved for a new trial. “ELiswortn, J.... 8 Wecome next to the most interesting and the main 43 674 IDIOCY, LUNACY, ETC. In the case of Waring v. Waring, 6 947, referred to in the foregoing opin- Moore, P. C. C. 349, s. c. 12 Jur. ion, Lord Brovenam advanced the question in the cause, the law in relation to the subject of insanity. The appel-. lants’ counsel requested the Court to lay down three distinct propositions on this point. Two of these, the second and third, as stated in the motion, were laid down substantially as requested by the appellants, and so far they of course cannot com- plain. We proceed at once then to consider the correctness of the first proposition. “As we understand this proposition, the principle of law which it assumes is, that a delusion harbored in the mind on any subject makes the mind so unsound gener- ally, that, as a matter of law, a will made during its existence is void as the act of an insane man; or, in other words, that a delusion on any single topic is, as matter of legal inference, absolute insanity, sufficient to vacate a will or contract; and by parity of reason, it would seem, affording immunity in the case of crime; unless, indeed, as is laid down in some of the books, more understanding is required in the case of wills and contracts than in the case of crimes. “Now on the trite subject of insane delusion, so much has been said and written by the learned, so many discordant views and theories advocated by medical and other writers, and even these sometimes stretched and distorted to save life or defeat a hard will, that we scarcely dare say what is the true rule of law on the subject. The particular physical theory, too, of the human mind adopted by some persons, very greatly influences their views about insanity ; as, for instance, the phrenologists, who maintain that the mind is not a unit, and that it often is diseased and enfeebled in some of its faculties or organs of manifestation while it is sound and healthy in others, and as to these sound faculties is properly chargeable with responsibility tor their exercise while it is not as to the others. “Some of the distinctions made I must think do not furnish certain and satisfac- tory rules for the government of Courts and juries in the administration of either the civil or criminal law. After having examined, and somewhat thoroughly read, the treatises and reported cases brought to our notice on the trial, and reflected upon facts that have fallen under my own observation during forty years spent at the bar and on the bench in numerous trials in our Courts, 1 am convinced that the question of a man’s ability to make a contract or will, or of his legal responsibility for his actions, is best determined by calling the attention of the Court and jury to two plain questions of common sense: 1. What degree of mental capacity is essential in such cases? which is a question of law; and 2. Does that capacity exist in the case in hand? which is a question of fact. Refinements and speculations beyond this can avail very little in my judgment; and to indulge in them will confuse more than enlighten the minds of the jury ; and, after all, it will come to these questions, whatever technical rule may be laid down by the Court. What better rule, what more simple or easy of application, can be devised than these ? especially as it re- spects the jury, who are not necessarily learned men nor familiar with the refine- ments of phrenological or physiological science or with the pathology of mental disease. All the books agree that a person has capacity to make a contract if he be of mature age, and can understand the nature of the contract and the effect. of the language used to express his intention; and certainly the fact whether there be-or not such a capacity, must be judged of by scanning the daily conversation and con- duct of the individual in matters ofa hke nature, and not by inquiring if in some par- ticular thing, in no way relating to property or contracts, he fancies something which does not exist and of whieh he has no reasonable evidence. ‘The fact of such delusion may well go to the Jury for what it is worth upon the general question of unsoundness of mind, but it is not absolute and universal unsoundness. ‘Io hold it such would be unendurable, and at variance with the doctrine practically recognized DEW v. CLARK. 675 opinion, that if the mind is unsound on is at all times existing upon that sub- one subject, provided that unsoundness ject, it is erroneous to suppose such a in all Courts and with the good sense of all mankind. Were we to decide that men cannot make contracts nor dispose of their estates, however sensible and shrewd, becausé they fancy some things to exist which do not, and of which they have no reasonable evidence, at least so far as other persons can perceive, our Courts would ere long present the spectacle of a plentiful harvest to the profession, or the affairs of society must be arrested from uncertainty and fear. What would be the condition of those who happened to have dealings with a jealous husband, a suspicious neighbor, an infatuated lover, a deceived and half-crazed demagogue, a Hindoo worshipping an idol, a sincere and enthusiastic but deluded follower of Mahomet, or a modern spiritualist with his ‘harmonial philosophy’ and ‘ aerial spheres’? Are these men to be read out of society as insane on all subjects, and rendered powerless to provide for themselves and their families ? “Lord Hale had full belief in the existence of witches, while he presided with distinguished ability in the highest Court in England. Dr. Johnson was confident that he heard the voice of his deceased mother calling his name. Lord Castlereagh, a short time before his solemn death, gave a narration of a supposed apparition which he firmly believed, and which deeply affected him. Lord Herbert believed that a divine vision had indicated to him the correctness of a particular course of religious specula- tions, which, on the faith of the supposed vision, he published, and which he made the basis of his future action. The second Lord Littleton was equally persuaded that a divine warning had admonished him of his approaching death. The same was true of the Earl of Chesterfield. Abercombie gives an instance of an habitual hallucina- tion, which at the same time was consistent with reason. Now, we say, these things did not, in the individual cases, constitute what we understand by the term insanity, nor of course general unsoundness of mind, though such facts may be evidence tending to prove insanity, and, taken with other facts of a more marked character, may satisfy a jury that a man has not mind enough to make a valid will and testa- ment. The proper inquiry in such cases is, Has the testator mind enough to know and appreciate his relations to the natural objects of his bounty, and the character and effect of the dispositions of his will? If he has, then he has a sound and dispos- ing mind and memory, although his mind may not be entirely unimpaired. “Tn Kinne v. Kinne, supra, this Court held that the real question was whether the testator had an understanding of the nature of the business he was engaged in, a recollection of the property he meant to dispose of, and of the persons to whom he meant to convey it, and of the manner in which he meant to distribute it among them. Judge Wiiams there says: ‘The mistake has arisen from the fact that, if the testa- tor was not in a condition which would justify his transacting all kinds of business, it has been supposed he could not do this.’ So in Comstock v. Hadlyme, 8 Conn. 265, the question for the jury was, whether the devisor had a sound and disposing mind, and the Court gave the rule above stated. “Tn Stevens v. Vancleve, 4 Wash. C. C, 262, Wasuineton, J., says: ‘The testator may not have sufficient strength of mind and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question resolves itself into this: Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged.’ The same rule is laid down in Rambler v. Tyron, 7 Serg, & R. 95; Hawthorn v. King, 8 Mass. 871; Law v. Williamson, 1 Green, Ch. 82; Stewart v. Lispenard, 26 Wend. 255; and Potts v. House, supra. See also 1 Jarman on Wills, 29, and the numerous cases referred to in the notes. “We will not dwell longer on this part of the case, and should not have said 676 IDIOCY, LUNACY, ETC. mind really sound on other subjects, a person apparently never so rational and that, therefore, be the will of such and proper, it is void. This case was so much as we have, had we not felt that the notion that a single delusion is gen- eral insanity, and that the jury are to be so instructed, irrespective of the degree or intensity of it, is nowhere countenanced in this country, and not until lately in England. “The rule in England was for a long time the same as the one laid down, and is most elaborately argued by Nrcuours, J.,in the Prerogative Court in Dew ». Clark, 3 Addams’ Eccl. 79. There the question was whether the testator’s delusion as to his daughter was sufficient to set aside a will disinheriting her. It was held that it was. But no such point was decided as is made here, that a delusion on any other subject was a general unsoundness of mind, much less absolute insanity, as matter of law. This notion being alluded to, the Court say: ‘It has been repeatedly said by the counsel for the residuary legatees that this partial insanity is a something unknown to the law of England. Now if it be meant by this that the law of England never deems a person both sane and insane at the same time upon one and the same subject, the assertion is a mere truism. But if by that position it be meant and in- tended that the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time on different subjects, there can scarcely be a position more destitute of legal foundation, or rather there can scarcely be one more adverse to the current of legal authority.” The learned Judge sustained himself by the authority of Locke, who says, ‘A man who is very sober and of a right understanding in all other things may in one par- ticular be as frantic as any man in Bedlam,’ and of Lord Hare, who says, ‘ There is a partial insanity of mind, and a total insanity ; in the first, as it respects particular things or persons, or in respect of degrees, which is the condition with very many, especially melancholy persons, who for the most part discover their defect in exces- sive fears and grief, and yet are not wholly destitute of the use of reason.’ “This question came up again in the Privy Counsel in Waring v. Waring (Privy Counsel Cases, 349), where, in the opinion delivered by Lord Brovenam, it would seem as if all distinction between partial and total insanity is denied. Perhaps such is now the law of England; but in a very late treatise, written with much ability by Wharton and Stillé (Med. Juris. 27, 28, 82), this is held to be an innovation, and is reviewed and disapproved of as leading to absurd and dangerous consequences. “ Besides, if the law be taken to be as laid down in Waring v. Waring, this will not sustain the broad claim of the appellants in this case, that any delusion harbored in the mind, on any subject however foreign, is per se, and as a matter of law, absolute and universal unsoundness of mind. And, further, it may be important to remember that in the ecclesiastical Courts in England there is no jury trial, but the fact and the law go together to the Court, and a nice distinction between them on such a question as that of insanity is not necessary, nor is the Court required to settle any narrow and abstract rule on the subject. There, all the evidence is with the Court, and the Court can decide whether there is a general or partial insanity ; and, if the latter, whether it is so great or so extensive in its relations as to affect substantially the entire understanding. We can well see that, while the Court would not be embarrassed on the whole evidence, a jury who are to receive a technical rule from the Court, as was here asked, might be unable to render a verdict according to their own convic- tions of the real fact. They might find that the person said to be under a delusion was abundantly competent to dispose of his estate, and feel that it would be absurd and unjust to render a verdict of insanity, while yet such a rule of law as is claimed by the appellants would, if laid down by the Court, require them to do so. But even this would not appear quite so absurd in England as here, for there proceedings DEW v. CLARK. 6TT followed in Smith v. Tebbitt, L. R. 1 However, in the late case of Banks P. & D. 398. Seealso Symes v. Green, v. Goodfellow, L. R. 5 Q. B. 549, de- 1 Sw. & Tr. 401; Broughton v. cided July 6, 1870, the cases are thor- Knight, 3 P. & D. 64. oughly and ably reviewed by Cocx- are instituted to try the specific question of the insanity under a commission of lunacy. “Tt seems to be admitted that the rule does not apply in criminal trials. Mono- mania, or partial insanity, is recognized in criminal law, and its effect in relation to criminal responsibility tolerably well settled; and we find that such insanity has often been successfully set up in defence of the accused. In submitting such cases, the judge always instructs the jury that they must inquire into the condition of the prisoner’s mind at the time of the act, on the particular subject to which the crime relates ; and, though the language used by the different judges is somewhat variant, itis the same in effect. They allagree that the question is, whether the person accused had, at the time of the act, sufficient understanding to know the nature and effect of the act for which he is put on trial, and that it was a violation of law exposing him to punishment. If so, they say that he may be found guilty. “T will cite only two cases to this point, both of which are deservedly of the high- est authority. The first is that of Commonwealth v. Rogers, 7 Met. 500, where the learned Chief Justice Saw says: ‘On the contrary, although the prisoner may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences, —if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, — such partial insanity is not sufficient to exempt him from responsibility for criminal acts.’ The other case is that of Daniel McNaughton in the House of Lords, 47 E. C. L. 129, where the opinion of the judges was asked upon the following questions: ‘1st. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion, respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? 2d. In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time? 8d. If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused ?’ The answers to these questions are full and explicit to the effect that in the opinion of the judges there is a clear distinction between total and partial insanity, and of course a corresponding difference in the accountability of the offender. They say that, if the accused was at the time of the act conscious that the act was one which he ought not to do, and was contrary to the law of the land, or if he had u sufficient degree of reason to know the nature and consequences of his act, he would be a proper subject of punishment, even to the total loss of liberty or life. Why ought not the same rule to be applied in civil causes? Is life or liberty less important than property or civil rights? If a person possesses reason enough to be held accountable for his criminal acts, he may, it appears to me, have enough to obligate himself by contract, and make a good and valid disposition of his estate. The reasoning of Dr. Ray on this subject, in his late and able treatise on Insanity (p. 16), is most worthy of attention. ‘The language of the law virtually addressed to the insane man is, Your reason is too much impaired to manage your property ; you are unable to distinguish between those measures which would conduce to your profit and such as would end in your ruin, and therefore it is wisely taken from your control; but if, under the influence of one of these insane delusions that has rendered this step necessary, you should kill your neighbor or steal his property, you will be supposed to have acted under the guidance of a sound reason, and will be tried, con- 678 IDIOCY, LUNACY, ETC. BuRN, C. J., and the doctrine of War- though somewhat voluminous, is deemed ing v. Waring, and Smith v. Tebbitt, worthy of being here presented, and is controverted and overruled, This case, accordingly given in the note below.? victed, and executed, it may be, like any common criminal whose understanding has never been touched by madness. As for any physiological or psychological ground for this distinction between the legal consequences of the civil and criminal acts of an insane person, it is in vain to look for it. That the mind when meditating a great crime is less under the influence of disease and enjoys a more sound and vigorous exercise of its powers than when making a contract or a will, few will be hardy enough to affirm, and yet the practice of the law virtually admits it. The difference, if there be any, would seem to be all the other way. In the disposal of property, the mind is engaged in what has often exercised its thoughts, the condition and conse- quences of the transaction require no great mental exertion to be comprehended, and there may be nothing in it to deprive the mind of all the calmness and rationality of which it is capable. Now criminal acts, though abstractly wrong, may under certain circumstances become right and meritorious ; and if the strongest and acutest minds have sometimes been perplexed on this point, what shall we say of the crazy and distracted perceptions of him whose reason shares a divided empire with the propen- sities and passions ?’ “‘On the trial of this cause there was very little if any evidence, and little or nothing said, as to any delusion in the mind of the testatrix except on the subject of her property, and the right of her sisters as her natural heirs to receive it at her death. Now, as to the effect of this supposed delusion, we think the Court went quite far enough in the charge. The Court said: ‘If the testatrix, at the time of executing the will, harbored an unnatural, unreasonable antipathy towards her sisters, or either of them, and that antipathy was the result of a morbid delusion as to the character and conduct of these sisters, the will is void, although she may have been sane in all other respects.’ The jury Have therefore found that the testatrix was laboring under no delusion at all; which ought, it would seem, to put an end to the case so far as the question of insanity is concerned; and, this being so, it is not easy to see of what benefit a new trial will be to the appellants beyond the chance of another verdict, which, of course, constitutes no reason with us for granting a new trial. But our decision is not affected by this view of the case. We hold that the legal proposition expressed in the first request to the Court is not a sound one, and does not state the true principle of the law of irisanity. A new trial is not advised. “In this opinion the other judges concurred. iNew trial not advised.” 1 “Bjectment for fifteen messuages or dwelling-houses situate at Keswick. “The defendant defended for the whole. “ At the trial before Brett, J., at the Cumberland Spring Assizes, 1869, it ap- peared that the action was brought by the plaintiff, as heir at law of John Banks, deceased, to try the validity of a will made by the latter on the 28th of: December, 1863, in favor of Margaret Goodfellow. The testator had an only sister of the whole blood, but she was dead at the time the will was made, and her only child, the said Margaret Goodfellow, lived with him and was his heir at law. The testator had also an only brother of the half blood, Jacob Banks, who was also then dead ; he was father of John Banks, the plaintiff, and of several daughters. The testator died unmarried, on the 28th of July, 1865. The will devised the whole of the testator’s real and personal property to Margaret Goodfellow absolutely. She died unmarried and under age, in 1867, The defendant was her half-brother and heir at law. The question at the trial was the capacity of the testator to make a will on the 2d of December, when instructions given for the will were provisionally executed as a will, or on the 28th of December, 1863, when the formal will was executed. The evidence DEW v. CLARK. 679 was very long and contradictory on the point; but it was admitted that at times the testator was incapable of making a will. “The following is a copy of the direction of the learned judge to the jury : — “