A TREATISE ON THE LAW OF THE DOMESTIC RELATIONS EMBRACING HUSBAND AND WIFE, PARENT AND CHILD, GUARDIAN AND WARD, INFANCY, AND MASTER AND SERVANT. BY JAMES SCHOULER, AUTHOR OF "a TREATISE ON THE LAW OF PERSONAL PROPERTY." SECOND EDITION. BOSTON: LITTLE, BROWN, AND COMPANY. 1874. T 1874 Entered according to Act of Congress in the year 1870, by JAMES SCHOULER, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress in the year 1874, by JAMES SCHOULER, In the Office of the Librarian of Congress, at Washington, D.G. CAMBRIDGE: PRESS OF JOHN WILSON AND SON. TO THE HON. ISAAC F. REDFIELD, LL.D., WHOSE LABORS HAVE ILLUSTRATED THE JURISPRUDENCE OF TWO COUNTRIES AND WHOSE KINDLY SYMPATHIES ENDEAR HIM TO THE YOUNG, EVEN MORE THAN HIS UNWEARIED PATIENCE AND INDUSTRY COMMAND THEIR RESPECT, THIS WORK IS GRATEFULLY DEDICATED By JAMES SCHOULER. PREFACE TO THE SECOND EDITION. In preparing a second edition for the press, the author has personally revised every page of his work, making such changes and additions as appeared suitable in the light of the latest decisions. Some minor improvements in the ar- rangement of his materials have also been introduced ; but in the main' he has left his original paging and plan of treatment undisturbed. The reader will better appreciate the value of the labors bestowed by the author upon the present edition, when it is added that the latest cases, as cited herein, have been assimi- lated with the text and foot-notes, to the number of about one thousand, and that — notwithstanding a slight enlargement in the size of tlie printer's page — the body of the original work proves to have gained nearly fifty pages. J. S. March, 1874. PREFACE TO THE FIRST EDITION. The purpose of the writer, in the present treatise, is to fur- nish a clear, accurate, and comprehehisive analysis of the law of the domestic relations, as administered in England and the United States at the present day. To accomplish this purpose, and at the same time not to transcend the limits of a single volume, was not easy. It became necessary to treat of principles rather than details, and to avoid matters of local practice altogether. A few topics, such as curtesy and dower, which are fully discussed in other treatises, have been for the same reason touched upon' lightly, and the Avork, on the whole, made elementary in its method of treatment, though at the same time practical. The lawyer who misses elaborate head-notes and subdivisions will yet find assistance in a full index and table of contents : and what has been lost in this respect is gained in subject- matter. Especial pains have been taken to present in this work such topics, pertaining to the general subject, as were not eas ly accessible elsewhere. The writer has freely consulted the valuable law libraries of the Suffolk Bar, at Boston, and of Congress, at Washing- ton, — the latter being the most extensive in this country. Among works which have afforded him the greatest assist- ance, are Macqueen on Husband and Wife, Peachey on Marriage Settlements, Macpherson on Infancy, and Smith on Master and Servant, — treatises of acknowledged merit in England, though little known in the United States. Other VIU PREFACE TO THE FIRST EDITION. books, more familiar, which need not be enumerated at length, furnished valuable material in certain parts of this work, as the foot-notes sufficiently indicate. The writer deems it just to himself to add, that the time-honored treatise of Judge Reeve has been found of little service, — tlie radical changes of the last fifty years rendering new labor, new materials, and a new plan of treatment absolutely essential to meet the growing wants of the age. If, on the whole, the present work is found to answer its purpose, in the judgment of liis professional brethren, the writer will cheerfuU}^ acknowledge such errors and blemishes as the judicious critic may kindly point out. "jAMES SCHOULER. Washixgton, D.C, April 80, 1870. CONTENTS. [All references in the present work are made to the pages of the original edition, which are designated by a star.] PART I. V^TRODUCTORY CHAPTER. Domestic relations defined and classified 3 Plan of treatment by former writers 3 Proper classification of the subject 5 General characteristics of the law of family 8 Law of husband and wife now in a transition state 10 Common-law and civil-law schemes contrasted 10, 12 Community system 14 ]\larried women's acts in America 16 Law of parent and child, and remaining topics 21 General purpose of the present treatise 21 PART II. HUSBAND AND WIFE. CHAPTER I. MARRIAGK. Marriage in general 22 Definition of marriage 22 Marriage not a contract in the ordinary sense of the term . . .22 Void and voidable marriages 24 The essentials of marriage 25 Consanguinity and affinity 26 The essential of social condition 28 X CONTENTS. Mental capacity 29 Physical capacity 31 Infancy as an impediment 32 Bigamy and polygamy, and impediments following divorce ... 33 Force, fraud, and error 35 Formal and informal marriage celebration 39 Consent of parents and guardians 46 Legislative marriages 47 Conflict of laws concerning marriage 47 CHAPTER n. THE GENERAL DISABILITIES OF COVERTURE. Order of treatment in this and succeeding chapters 51 Common-law doctrine of coverture as to person 51 Husband as dignior persona — ^ 51 Duty of husband and wife to live together; matrimonial domicile; contracts in restraint of marital rights 53 Remedies for breach of marital duty 56 Husband may sue for enticement 57 His right to correct and restrain his wife 59 Assault and battery 61 Custody of children 61 Coverture as it affects property rights 61 Husband's rights and liabilities with respect to wife's property . . 61 Mutual rights and disabilities 63 Mutual disability to sue and contract 63 Disqualification of husband and wile as witnesses 63 Property rights as alfected by conflict of laws 67 CHAPTER III. THE EFFECT OF COVERTURE UPOX THE WIFE'S DEBTS AND CONTRACTS. Husband must pay his wife's antenuptial debts 69 Modifications of the rule ; how lar carried 72 Wife cannot bind herself by contract 74 But she may bind her husband as agent 76 Doctrine of the wife's necessaries 76 Rule of the husband's liability for necessaries 80 Where husband and wife live together 80 Where they live apart 88 Cases of voluntary separation 94 Summary of the doctrine of necessaries 97 Wife, when an agent, may bind husband on general contracts ... 98 CONTENTS. XI CHAPTER IV. THE EFFECT OF COVERTURE UPON THE WIFE's INJURIES AND FRAUDS. Frauds and injuries committed by the wife 101 Husband not criminally answerable for his wife's behavior, but coercion sometimes presumed in the wife's favor • 101 Husband responsible for his wife's private wrongs 102 Limitations of the rule ; presumption of coercion 103 Rule where the wife's contract is the basis of a fraud 104 Husband of an executrix liable for her wrongful acts .... 105 Cases of injunction 106 Frauds and injuries committed upon the wife 106 Legal procedure in such cases 107 Husband's special suit for damages, ^er quod; seduction, &c. . 108 Instantaneous death 110 Suits where both husband and wife are injured 110 CHAPTER V. THE EFFECT OF COVERTURE UPON THE WIFE'S PERSONAL PROPERTY. The wife's personal property goes to her husband Ill Choses in iJossession vest absolutely, chases in action potentially . Ill Rule as to wife's cAoses m possession, or corporeal chattels . . . . 112 Rule as to wife's c/ioses m action, or incorporeal chattels 114 What are choses in action i. ... 115 Reduction into possession necessary 116 What acts amount to reduction ; stocks, bills and notes, &c. . . 116 Reduction of legacies and distributive shares 121 Reduction by assignment of the chose 123 Reduction by suit and arbitration 126 Summary of the rule of reduction 128 The wife's equity to a settlement 128 Property embraced within the rule ; proportion allowed . . . 131 How the wife's equity may be barred 133 Property held by wife in representative capacity does not vest in husband 135 Effect of coverture upon rights of executrix and administratrix . 135 Case of female guardian or trustee 136 CHAPTER Yl. THE EFFECT OF COVERTURE UPON THE WIFE'S CHATTELS REAL AND REAL ESTATE. Rule as to chattels real ; leases, &c 137 Right of survivorship as between husband and wife 137 Xll CONTENTS. Where wife is executrix or administratrix 138 Husband may alienate chattels real 139 Otlier acts which defeat survivorship 140 Rule as to wife's real estate 142 Usufruct in husband, ownership in wife 143 Husband's lile-interest, how lost 144 His power to lease and mortgage 146 Other acts affecting wife's ownership ; waste, dissent from pur- chase or devise to wife, conversion into personalty, &c. . . . 149 Conveyances by married women 152 Wife's rights as mortgagee, her covenants, &c 155 Effect of coverture upon wife's life-estate 156 Where wife holds as joint-tenant 157 CHAPTER VII. COMMOX-LAW RIGHTS AND DISABIT.ITIES OF THE HUSBAND ON HIS WIFE's DECEASE. Husband's right to administer on wife's estate 158 His right to enjoy the property administered upon 160 Rule where husband dies before administration completed . . . 161 Administration as wife's representative 162 Interest in wife's lands as tenant by the curtesy ........ 163 Essentials of tenancy by the curtesy 164 Improvements upon wife's lands, and other claims 165 Injury to wife's inlieritance 165 Husband bound to bury his wife 166 His liability tor her debts and contracts after her decease .... 167 CHAPTER VIII. COMMON-LAW RIGHTS AND DISABILITIES OF THE WIFE ON HER HUSBAND'S DECEASE. Widow's right of administration 168 Her distributive share 168 Waiver of provisions under husband's will 170 Widow's allowance 171 The widow's paraphernalia 171 General incidents of paraphernalia 174 Wife's equity of redemption of mortgage and exoneration .... 176 Controversies between widow and her husband's administrator . , . 179 Whether wife is bound to bury lit r husband 179 Rule where she purchases as agent after her husband's death . . . 179 CONTENTS. xiii CHAPTER IX. THE wife's dower AND HOMESTEAD RIGHTS. Dower as compared with curtesy 182 Origin, nature, and essentials of dower 183 Seisin of the husband, as an essential 185 Dower, how barred, how assigned 185 Dower in England and America, under late statutes 185 The homestead system 186 CHAPTER X. THE wife's separate ESTATE : ENGLISH DOCTRINE. Origin and nature of separate estate in chancery 187 Appointment of trustee 188 What words and acts suffice for separate use 189 Separate use binds produce of fund 193 It exists only in the marriage state 194 Wife's power to renounce separate use 195 Obligations of husband where wife has separate estate 196 Clause of restraint upon anticipation 197 Separate estate sometimes recognized at law 199 CHAPTER XI. THE wife's separate ESTATE : AMERICAN DOCTRINE. Peculiar development of the chancery doctrine in this country . . . 200 How far recognized in the early Anieriean courts 200 English precedents followed, but not boldly 202 How separate estate is created, and its general incidents . . . 202 Whether acquired by wife's contract 205 Husband's obligations and rights with reference to it .... 205 Whether it exists after death 207 Savings and income as separate estate 207 Husband's suits with reference to separate estate 208 Separate estate upon the comity of nations 208 Great revolution effected by statutes since 1818 208 The married women's acts 209 Present statutory policy in America 212 General features of the married women's acts, presumptions, &c. 213 Effect of statute upon equity jurisdiction 214 xiv CONTENTS. Common-law doctrines of coverture modified in many respects by statute 215 How death affects rights 216 Constitutional questions 216 Late American equity decisions 218 CHAPTER XII. THE wife's dominion OVER HER SEPARATE ESTATE. General principles of dominion over separate estate 219 English Doctrine. Wife takes separate property with power of disposition 219 Her power to contract debts with reference to it 220 Property with powers of appointment • • _^ 223 Wife's separate estate affected by her breach of trust 224 Summary of the doctrine of wife's contracts 226 Right of wife to bestow estate upon husband 227 American Doctrine. Wife's right of dominion, how far admitted in equity ; chancery rules . 227 Married women's acts affect the rule 229 New doctrine in New York as to contracting debts 229 American rules as to enforcing wife's engagement against her sep- arate estate 230 Protection of separate estate against husband's creditors ; how far the husband may control 231 Concurrence of husband in wife's transfer 234 Wife's liability on covenants of sale 235 Survivorship of husband 235 Doctrine of the wife's dominion in certain States 236 Whether the wife may bind by purchases on credit 237 Other rights and liabilities of wife under married women's acts . 238 Present confusion of the law 238 CHAPTER XIII. THE wife's PIX-MONEY, SEPARATE EARNINGS, AND POWER TO TRADE. Origin, nature, and incidents of pin-money . .v 240 House-keeping allowances 242 Wife's earnings in general belong to the husband 242 Exceptions to the rule, and statutory changes 243 Wife's power to trade 244 Trading under the English law 244 CONTENTS. XV The later American equity rule 245 Eiilarrfement of the wife's power to trade by late American statutes 247 Doctrine of different States 248 Civil-law doctrine of separate trading 250 CHAPTER XIV. THE WILLS OF MARRIED WOMEN. Common-law incapacity of married women ; husband not incapacitated 251 Exceptions to rule 251 Wife may bequeath with husband's consent 251 Where she is executrix 253 Where slie holds separate estate 253 Where husband is dead at law 255 As to property acquired after husband's death 255 Recent English statutes on the subject 255 Doctrine in this country ainder married women's acts .... 256, 258 Civil-law rule 257 Republication of wife's will after coverture ceases 259 How far husband may control or take benefits under wife's will . . . 259 Mutual wills of husband and wife 260 The wile's donatio causa mortis 260 Wife may execute power 261 CHAPTER XV. ANTENUPTIAL SETTLEMENTS. Nature of marriage settlements 262 Distinguished from promises to marry under statute of frauds . . 262 Marriage the consideration which supports antenuptial settlements 263 How far the marriage consideration extends its support . . . 264 Settlement good in pursuance of written agreement 265 The form of antenuptial settlements 266 jMarriage articles 267 Enforcement of settlements against third persons 267 Secret settlements before marriage ; cases of fraud 268 Settlements reformed in equity according to articles 271 Portions and covenants to settle 273 Rights under settlement, how forfeited 274 Provision in event of future bankruptcy 274 Marriage settlements in America 275 Effect of marriage upon a debt already due from one spouse to the other 275 XVI CONTENTS. CHAPTER XVI. POSTNUPTIAL SETTLEMENTS AND GIFTS BETWEEN HUSBAND AND WIFE. Postnuptial settlements are in general, without consideration, as dis- tinguished from antenuptial 276 / Postnuptial settlements as affecting creditors 277 '^ Statute 13 Eliz., as applied in England 278 Bankruptcy of husband 278 American rule as to creditors' rights 279 Statute 27 Eliz., as affecting creditors and purchasers .... 280 How construed in England and America 280 Valuable consideration sometimes interposed 282 Postnuptial settlements and gifts as between husband and wife . . . 283 What is essential to support them in equity 283 Valuable consideration sometimes intei^rosed 285 Incidents of postnuptial settlements and gifts 286 Conveyances of land between husband and wife 287 Effect of conveyances to husband and wife . 288 Insurance effected by husband for wife's benefit 289 CHAPTER XVII. SEPARATION AND DIVORCE. Doctrine of separation 290 How separation deeds came to be recognized 292 Extent of their enforcement in chancery 293 Doctrine not clearly established in this country 294 Wife's right, when abandoned, to contract, sue and be sued . . . 295 The topic of divorce 295 Divorce legislation in general 295 Ancient and modern systems compared 295 Rules in England and America 298 Wife's domicile for purposes of divorce 299 Effect of divorce from matrimony upon property rights . . . 299 Effect of divorce from bed and board upon property rights . . 301 Mutual rights pending divorce proceedings 302 CONTENTS. XVll PART III. PARENT AND CHILD. CHAPTER I. OP LEGITIMATE CHILDREN IN GENERAL. Legitimate and illegitimate children 303 Legitimate children in general 303 Presumption of legitimacy in all cases 304 Legitimation of offspring by subsequent marriage 308 Status of children born after divorce 311 Legitimacy in putative marriages 311 Legitimation by sovereign or legislative command 311 Domicile of children 312 Conflict of laws as to domicile and legitimacy 313 Parental relation by adoption 314 CHAPTER IL THE DUTIES OF PARENTS. Duty of protection 315 Duty of education 316 Chancery control of education ; religious training 317 Duty of maintenance in general 318 Extent of this duty at common law 318 Statute provisions 319 IMaintenance as ordered in chancery 322 When allowed from child's fortune 323 Rule of maintenance as to mother . 325 Whether child may bind parent as agent 327 Parent's liability for necessaries 328 Child's general contract sanctioned by parent 330 Duty of providing a trade or profession 331 CHAPTER III. THE RIGHTS OF PARENTS. Doctrine of parental authority 332 Limit to parent's right of correction and discipline 333 Indictment for cruelty, exposure, or neglect 333 Right of custody of children 333 Common-law rule of custody : English doctrine 333 Chancery jurisdiction 334 b XVlll CONTENTS. Habeas corpus at common law 337 Mother's rights extended by English statute 337 Custody, how awarded in this country 338 Welfare of the child the primary object 339 American statutes as to custody 340 How far the child's own wishes are considered 342 Contracts transferring parental rights 342 Right of parent to child's labor and services 344 Nature and extent of this right 344 How this right is relinquished 346 Rules as between parent and child's employer 347 Parental rights in property of children strictly limited : no gen- eral right 349 Constitutional right of legislature to interfere with parental rights and duties 350 CHAPTER IV. THE parent's rights AND LIABILITIES FOR THE CHILD's INJURIES AND FRAUDS. Parental right of action where child is injured ; in addition to child's right 351 Foundation of right, the loss of services 351 Rights and remedies enlarged by statute 352 Incidents of such suits 353 Enticement, abduction, and other suits ; limitation of right . . . 354 Suits for seduction of child 355 Damages in actions for the child's Injuries 359 Parental liability where child is the injuring party 361 Child's own property answerable 362 Doubtful whether parent is liable for child's torts 362 CHAPTER V. DUTIES AND RIGHTS OF CHILDREN, WITH REFERENCE TO THEIR PARENTS. General duties of children with reference to parents 364 How far bound to support parents 365 Rights of children in general with reference to parents 366 The emancipation of minor children 367 How emancipation is brought about 368 The legal effect of emancipation 371 Rights of full-grown children 372 Their contracts with their parents 374 CONTENTS. XIX Rights of children as heirs 376 Advancements ; expectant estates 376 Legacies of children ; rights by descent and distribution . . . 378 Step-children ; quasi relation of parent and child 378 CHAPTER VI. ILLEGITIMATE CHILDREN. Illegitimate children ; their peculiar footing 379 Disability of inheritance 379 At common law 379 Civil-law rule as to illegitimate children 380 Right of inheritance in America 380 Whether the mother is preferred to the putative father 381 Rule as applied in matters of custody 382 Maintenance of illegitimate children 384 General rights of action as to illegitimate children 386 Bequests to illegitimate children 386 Tendency of the American decisions 388 Guardianship of illegitimate children 388 PART IV. GUARDIAN AND WARD. CHAPTER I. OF GUARDIANS IX GENERAL; THE SEVERAL KINDS. Guardianship defined ; application to person and estate 389 Classification of guardians of minors in England 390 Obsolete species of guardianship 390 Guardianship by nature and nurture 391 Guardianship in socage 392 Testamentary guardianship 393 Chancery guardianship 395 Guardianship by election of infant 398 Classification of guardians of minors in United States 399 Guardians by nature and nurture, socage and testamentary . . 399 Chancery and probate guardianship 400 Guardianship at civil law 402 Guardians of other than minor wards 403 Guardians for special purposes 405 Guardians ad litem 405 XX CONTENTS. CHAPTER II. APPOINTMENT OF GUARDIANS. How all guardians are in general appointed 406 Natural and socage guardians act under authority of law 406 What constitutes testamentary guardianship 407 Guardianship by appointment of the infant 409 Chancery and probate guardians are judicially appointed 410 Jurisdiction, how and when exercised 410 The selection of such guardians 414 Method of appointment 419 Effect of the appointment 420 Civil-law rule of appointing guardians 422 CHAPTER III. TERMINATION OF THE GUARDIAN'S AUTHORITY. How guar.lian's authority is terminated 423 Guardianship ceases by natural limitation or sooner 423 Death of the ward 424 Marriage of the ward 425 Death of the guardian 426 Resignation of the guardian 426 Removal and supersedure of the guardian 429 Marriage of female guardian ; its effect 433 Other cases where a new guardian may be appointed 434 CHAPTER IV. NATURE OF THE GUARDIAN'S OFFICE. Guardianship relates to person and estate 43.5 Guardianship of the person in general 435 Guardianship of the estate in general 435 The two functions generally united 436 Whether a guardian is a trustee 437 Joint guardians 438 Judicial control of the ward's property 440 The union of guardianship and other trusts in one person .... 441 Administration durante minore cetale 442 Quasi guardianship 443 Conflict of laws 443 Conflict as to the ward's person 443 Conflict as to the ward's property 444 Constitutional questions relating to guardianship 446 CONTENTS. Xxi CHAPTER V. RIGHTS AXD DUTIES OF GUARDIANS COXCERXIXG THE WARD's PEUSON. Guardian, stands in place of parent 448 The chief right, that of custody 448 Chancery jurisdiction in custody 448 Conflict between guardian and surviving parent 450 Access soraetiuies granted 451 Proceedings on writ of /;a5ea.? cor^)!/.? 451 Custody as to insane persons and spendthrifts 454 Right of guardian to change ward's domicile 452 And to carry ward out of jurisdiclion 453 Other rights of the guardian considered 454 Like those of a parent, but limited as to ward's services, &c. . . 454 Duties of the guardian in general 455 Liability for support limited to the ward's estate 455 But guardian may by contract bi'come liable 456 Expenditure of ward's property for his support 457 Rule not to exceed income a general one 458 Allowance of maintenance in chancery 459 Duty as to education of the ward 460 CHAPTER VI. RIGHTS AND DUTIES OF THE GUARDIAN AS TO THE WARD's ESTATE. In general 461 Leading principles to be observed 461 General powers and duties of the guardian 461 Right of suit and arbitration 462 How lar guardian binds ward's estate by his contract 4(i4 Title to promissory notes 465 Conversion of the ward's property ; sale and exchange of property . 466 Limit of guardian's responsibility in management 468 Management of the ward's real estate in detail 471 Management of the ward's personal estate in detail 473 Investment of ward's funds 475 When guardian is chargeable with interest 477 Speculation with ward's funds, &c 478 CHAPTER VII. SALES OF THE WARD's REAL ESTATE. In sales of ward's personal estate, a liberal rule applies 480 But, in general, chancery cannot sell ward's lands 480 Xxii CONTENTS. Chancery leaves infant's right to disaffirm unimpaired .... 481 Rule as to conversions, purchases, &c 481 Civil-law rule on the subject 482 Legislative authority may intervene 482 American statutes permitting such sales ; their main features . . 482 The statutory sale to be conducted carefully 483 Essentials of the purchaser's title in statutory sales 484 Irregularities which are immaterial ; those which make the sale voidable by certain parties ; those which make it void . . . 484 Sales by non-resident guardians 486 New York chancery rule as to sales ; American equity rules . . . 487 CHAPTEE Vlir. THE guardian's BOND, INVENTOKY, AND ACCOUNTS. The guardian's bond . . . . " 488 English rule as to recognizance ; receiver's duties 488 Bonds of probate and other guardians in this country .... 489 Liability of sureties 491 General principles applicable to bonds 493 The guardian's inventory 494 The guardian's accounts 494 Distinction between the final and intermediate accounts . . . 495 Practice in the United States 495 Items allowed the guardian 499 Compensation of guardians 500 Suits on the probate bond for default and misconduct 501 Enforcement of sureties' liability 502 Indemnity of sureties 503 CHAPTER IX. EIGHTS AND LIABILITIES OF THE WARD. General rights of the ward 504 Remedies against his guardian 505 Action ol' account after guardianship is ended 506 Ward's right to recover embezzled property, and to have fraudulent transactions set aside 507 Ward's right to repudiate unauthorized acts ; rule of election . . . 509 Right to reopen accounts 514 Election as to guardian's bargains with ward's funds .... 510 Transactions between guardian and ward 512 Gifts to guardian treated with suspicion 512 Such questions determined on settlement of accounts .... 514 Transactions after guardianship is ended 515 Marriage of ward in chancery 516 CONTENTS. XXlll PAET V. INFANCY. CHAPTER I. THE GENERAL DISABILITIES OF INFANTS. Age of majority Disabilities of persons under that age ^20 • • '')90 Legislative emancipation "^-^ Conflict of laws as to majority "^-" Infant's risht of holding office ^21 Infant's responsibility for crime ^""^ Infant's criminal complaints "^* Whether infants may make a will ^-'* Testimony of infants ^"" Marriage settlements of infants ^-" CHAPTER II. ACTS VOID AND VOIDABLE. Void and voidable contracts of infants in general 532 General principle that infants are specially protected by law ... 532 Test of void and voidable contracts 532 Privilege of avoiding is personal ; rights of other parties . . . . 53-i What acts are void on infant's part; what are voidable 536 Bonds, notes, and deeds considered 538 Rule of Zouch v. Parsons 538 Voidable purchase of infant 539 Letters of attorney and cognovits 540 Miscellaneous acts voidable and not void 542 Gifts of an infant 543 Infant's trading contracts Summary of doctrine as to void and voidable contracts 545 Period of ratification usually that of reaching full age 546 Disaffirmance of contracts during minority 546 CHAPTER in. ACTS BINDING UPON THE INFANT. General principle of binding acts and contracts 547 Contracts for necessaries, the most important class 547 Wliat are an infant's necessaries . 548 Education, house repairs, legal expenses, considered .... 550 XXiv CONTENTS. Trading contracts not included 552 Province of court and jury 555 Money paid infant for necessaries 555 Infant's bonds and notes for necessaries 556 Certain other binding contracts 558 Contracts relative to the marriage relation 558 Acts which do not touch infant's interest 559 Infant shareholders, and defendants in equity 559 Acts which the law would compel 559 Contracts binding because of statute 560 Infant's contract of enlistment 560 Indentures of infants 560 Contracts of service, how construed 561 Whether compensation is due when infant avoids 561 CHAPTER IV. THE INJURIES AXlT FRAUDS OF INFANTS. Those committed by infants distinguished from those suffered by him . 563 Injuries and frauds committed by infants 563 Rule of infant's liability 563 Not responsible for torts arising from contracts 56-1 Equitable principle of later cases 565 Chancery, civil-law, and statutory rules 669 Injuries and frauds suffered by infants 570 General right to sue 570 Except where a trespasser 571 Negligence of child's parent 571 Joint wrong-doers 573 Arbitration and compromise of torts ; miscellaneous points .... 573 CHAPTER V. RATIFICATION AND AVOIDANCE OF CONTRACTS. Infants may ratify and confirm or avoid voidable contracts .... 675 Rule as affected by statute 575 Lord Tenterden's act construed 575 Other statutes considered 577 American doctrine of ratification 677 Conflicting decisions 579 Summary of the doctrine 682 Express repudiation and disafHrmance 582 Ratification as concerns infant's real estate 584 Whether entry is necessary 586 Rule as to infant's purchases 588 Other points as to ratification 590 Infant should place other party in statu quo 591 CONTENTS. XXV CHAPTER VL ACTIONS BY AND AGAINST INFANTS. Actions at law by infants 592 Infants sue at law by guardian or prochein ami 592 They cannot sue by attorney or in person 593 How the inochein ami is appointed 594 Liability of j:»rocAem ajwt 595 Actions at law against infants 596 Infants must defend by guardian only 596 Guardians ad litem 596 Matters of practice in suits against infants 596 Equity proceedings by or against infants 598 Equity proceedings correspond to those at law 598 Chancery practice relative to infants . • . « 598 PART VI. MASTER AND SERVANT. CHAPTER I. NATURE OF THE RELATION; HOW CREATED AND HOW TERMINATED. Nature of the relation 599 Relation of master and servant defined 599 Rule of classification 601 Relation of master and workman 602 Councils or courts of conciliation COS Trade associations 604- Relation of master and apprentice 604 Relation of master and hired servant 606 Contract of hiring 607 Contract affected by statute of frauds 609 Restraint of trade and service for unreasonable term .... 609 Service and agency 611 How this contract is terminated 612 Servant's occupation of premises 615 CHAPTER n. MUTUAL OBLIGATIONS OF MASTER AND SERVANT. Obligations specially resting upon the master 616 Master's obligation as to discipline, &c 616 XXVI CONTENTS. Necessaries of the servant 617 Whether the master must find work 617 Master must indemnify servant 618 Duty to receive into service the person engaged 618 Remedies against master for breach of contract 618 Rules for payment of wages 620 Apportionment and quantum meruit 621 Representations of servant's character ; guaranty 625 Obligations specially resting upon the servant 615 Servant bound to perform engagement 625 Accountability to his master 626 Servants may be witnesses 627 CHAPTER III. RIGHTS AXD LIABILITIES OF THE SERVANT AS TO THIRD PERSONS. 'Servants not personally liable on their contracts 628 Liability of servants for their' torts and frauds 629 Torts of government agents 630 Criminal accountability of servant 630 CHAPTER IV. GENERAL RIGHTS AND LIABILITIES OF THE MASTER. General rights of master 631 Right of action for injuries to servant 680 Seduction, enticement, and harboring 631 Right to servant's acquisitions 633 General liabilities of master 633 Liability for servant's acts as agent 633 Application of rule to contracts 634 Liability of master for servant's torts as to third persons 636 Extent of this liability ; rule of respondeat superior 637 Not liable for acts wanton and beyond scope of employment . . 638 Rule as to real estate 641 Master not liable to servant for tort of a fellow-servant 642 But liable for his own negligence 643 Who are servants and fellow-servants 644 Master not criminally responsible for servant's misconduct .... 646 Observations on law of master and servant 647 TABLE OF CASES CITED. A. &B. Aaron v. Harley Abbey v. Deyo Abbott V. Bayley V. Converse i V. Mackinley V. Winchester Abdil V. Abdil Abell V. Warren Abernethy v. Abernethy Abington v. North Bridgewater Abraham v. Newcome V. Reynolds Abrahams v. Kidney Abshire v. Mather Ackerman v. Bunyon Ackert v. Pults Ackley v. Dygert Ackly V. Tarbox Acosta V. Robin Acton V. Peirce V. White Adams v. Adams V. Curtis V. Cutright V. Palmer V. Ross Adams Express Co. v. Trego G14, 626 Adamson v. Arniitage 189, 193 Addison v. Bowie 322 Aguilar v. Aguilar 130 Aln-enfeldt v. Alirenfeldt 341 Airkart v. Murphy 135 Alabama, &c., Ins. Co. v. Boykin 153 Alban v. Pritchett 04 Albany Fire Ins. Co. v. Bay 153 Albee v. Carpenter ll*j V. Wynian 294 Albert v. Perry 416, 417 V. Winn 263 Albin V. Lord 232, 288 Albro V. Jaquith 630 PAGE 31 549 249 295 ;68, 369 98, 100 275 596 542 129 312 134 642, 644 359 295 582 154 485 238 384 266 198 57, 171, 310, 373 243 46 24 538 Alcock V. Alcock Alderman v. Tirrell Aldrich v. Cooper V. Grimes Alexander, In re V. Alexander V. Crittenden V. Crosbie V. Frary V. Gibson V. Heriot r. Miller Alfred v. McKay Allen V. Allen V. Coster V. Crosland V. Gaillard V. Hightower V. Hooper V. Little V. London, &c., R. V. McCuUough V. Minor V. Peete V. Scurry V. Walker r. Wilkins AUfrey v. AUfrey AUie V. Schmetz Allison V. Norwood AUman v. Owen Alna V. Plumnier Alston V. Alston V. Munford Alsworth V. Cordtz Altenius' Case Alter's Appeal Althorf I'. Wolfe Alton V. Mulledy Alverson v. Jones Ambrose v. Kenison American, &c., Ins. Co. Ames V. Chew V. Foster R. Co PAGE 67 596 175 583 280 438, 499 121, 122 273 597 635 579 100 384 129, 308, 539 323, 326 491 476 281 288 258 637 136 537 416 145 226 163 516 289 605 496 94 443, 490 439, 441 535, 586 301 260 644 611 214 166 V. Owen 154 301 238, 239 XXVlll TABLE OF CASES CITED. 124, ^46, 69, T2, 831, Ames i: Norman Ammoiis v. People 492, Amor V. Fearon Anderson v. Anderson V. Brooks i\ Darby V. Gregg V. Layton 486, V. Mather 487, V. McGowan V. Roberts V. Smith V. Warde V. "Watson Anderton ;•. Gates Andover v. Merrimack County 122, Andrews, In re 407, V. Andrews V. Askey V. Garrett V. Jones V. Partington V. Salt Andrews' Heirs Case Angel V. Felton V. ]\lcLellan Angle V. Hanna Anne Walker's Matter Appleton V. Rowley Apthorp V. Backus Archer v. Frowde V. Hudson V. Rorke Archley v. Sprigg Ardis V. Printup Armfield v. Armfield V. Tate Armstrong t'. Armstrong ■ V. McDonald V. Ross 230, V. Stone V. Walkup 426, 443, 496, Arnold v. Bidwood V. Earle V. Norton 353, V. Ruggles Arnolds v. Woodhams Arrington v. Yarborougli Arthur v. Arthur 189, 227, Arthur's Appeal 402, Arundell v. Phipps Ashby V. Ashby V. Jolinston Ashfield V. Ashfield Ashley v. Harrison Aslilin V. Langton Ashton V. Ashton V. Aylett Ash worth v. Stanwix 643, Askew V. Dupree Aspdin V. Austin Atcherley v. Vernon Atcheson v. Everitt 300 502 614 195 203 47] 233 510 589 179 282 74 597 462 450 372 451 282 360 330 227 325 460 493 102 553 625 326 194 593 594 375 189 306 264 264 588 112 346 325 340 500 139 525 369 117 199 126 242 410 282 124 491 584 632 540 559 222 645 44 618 191 647 Atchison v. Bruff 554 Atkin V. Acton 613 Atkins V. Curwood 81, 83 Atkinson, Ex parte 447 V. Atkinson 478 V. Medford 29 V. Phillips 281 t'. Whitehead 470, 474 Atkyns v. Pearce 90 Atlee V. Hook 255 Attorney-General v. Riddle 84, 105 V. Siddon 647 Atwood V. Atwood 185 V. Meredith 250 Aucker v. Levy 266 Auster v. Powell 376 Austin V. Wilson 104 Averson v. Lord Kinnaird 64, 66 Avery v. Griffin 75, 136, 224 Ayer v. Warren 76 Aylitr V. Archdale 556 Ayliffe V. Tracy 267 Ayling i-. Whicher 106 Aylward v. Kearney 513 B. B. & B. 31 Baason r. Baehr 624 Babb V. Perley 144, 149 Babcock v. Doe 536 V. Eckler 282 V. Smith 265, 301 Bachman v. Chrisman 215 Bacon v. Taylor 462, 471 Badger v. Phinney 566, 691 Badgley v. Decker 359 Bagsiet V. Meux 198, 254 Bagiey v. Mollard 388 Bailey, Ex parte 334 V. Bailey 61 V. Bamberger 591 V. Calcott 91 V. Duncan 143 V. Fiske 28 V. Pearson 215, 232 V. Rogers 502 Baillie v. KeU 615 Bain v. Doran 160 V. Lescher 190 Bainbridge v. Pickering 553 Baker v. Baker 37, 349 V. Barney 94 V. Bolton 109 V. Bradley 198, 375 V. Chase 185 V. Gregory 233 V. Haldeman 861, 362 V. Hall 116 V. Hathaway 235 V. Lovett 542, 574 V. Ormsby 462 TABLE OF CASES CITED. XXIX Baker u. Richards 475 V. Sampson 95 V. Wood 492 V. Young 104 Baker's Trusts, In re 196 Bakers v. Winfrey 605 Balch V. Sniitli 408 Baldwin v. Baldwin 133 V. Carter 151, 266 V. Casella 637 V. Parker 64 Bale V. Coleman 274 Ball V. Ball 336, 415 V. Bennett 102 V. Bruce 359 V. BuUard 215 V. Coults 133 V. Montgomery 133 t'. Storie 273 Ballard v. Brummilt 491 V. Russell 109 Ballin v. Dillaye 230 Ballou V. Farnum 645 Baltimore, &c., R. R. Co. v. State 571, 572 Bamford v. Shuttleworth 628 Banbury Peerage Case 306 Bangor v. Readfield 370 Bank r. Garlinghouse 238 Bank of Albion v. Burns 234 Bank of Louisiana v. Williams 68 Bank of Virginia v. Craig 505 Banks v. Conant 349 Bannister v. Bannister 454 Banton v. Campbell 288 Barbat v. Allen , 67 Barbae v. Armstead 59 Barber v. Harris 149 V. Slade 119, 121 V. State 386 Bard v. Wood 497 V. Yohn 639 Bardwell v. Purrington 605 Barela v. Roberts 384 Barham v. Earl of Clarendon 264 Barker v. Dayton 186 V. Dixie 64 Barkshire v. State 28 Barlow v. Bishop 245 V. Grant 327 Barnaby v. Barnaby 510, 545, 580 Barnard v. Ford 130 I'. Hevdrick 596 Barncord v. Kuhn 282, 289 Barnes v. Allen 57 V. Barnes 341 V. Camack 64 V. Compton 514 V. Harris 104, 105 I'. Haybarger 235 V. Jarrett 84 V. Powers 430 V. Underwood 160 Barnet v. Commonwealth 462 Barney v. Saunders 477 Barns v. Branch 434 Barnum v. Frost 456 Barrack v. M'Culloch 195, 254 Barrere v. Barrere 340 Barrett v. Churchill 484 r. Oliver 208 V. Seward 522 Barron v. Barron 119, 122, 129, 131, 133, 214, 243, 282, 286 Barry v. Barry 415 Barrymore v. Ellis 198 Bartholemew v. Finnemore 591 Bartlett, Ex parte 453 V. Bartlett 228, 234 V. Cowles 426 V. Gillard 226 V. Gonge 185 V. Janeway 121 Bartley v. Richtmeyer 356, 357 Barto's Appeal 166 Barton v. Beer 249 V. Morris 36 Bartonshill Coal Co. v. Reid 642 Barwick v. Rackley 593, 594 Basford v. Peirson 235 Bass V. Cook 454 Batchelder v. Sargent 238 Bates V. Dandy 120, 124 V. Enright 94 V. Seely 288 V. Shraeder 149 Battle V. Vick 414 Bauer i-. Bauer 232 Baum V. Mullen 215 Bavington v. Clarke 560 Baxter r. Bodkin 154 V. Bush 566, 588 V. Nurse 607 V. Prickett 248 Bay V. Gunn 580 Bayard v. Hoffman • 279 Bayler v. Commonwealth 155 Bayley v. Manchester, &c., R. R. Co. 641 Baylis v. Dineley 537 Bayspoole v. Collins 282 Bazeley v. Forder 90, 322 Beach v. Beach 294 V. MuUin 607, 613, 622 V. Ranney 107 V. White 282 Beachcroft v. Beachcroft 387, 388 Bcal V. Harmon 409 V. Warren 235, 281 Beall V. Beall 312 Reals V. Cobb 234 Bean v. Smith 282 Bear v. Hays 243 Bear's Administrator v. Bear 214 Beard v. Webb 245 Beasley v. Magrath 326 XXX TABLE OF CASES CITED. Beasley v. Watson 324, 459, 474 1 Beattie v. Jolinston . 445 1 Beaufort v. Collier 203 Beaumont v. Weldon 81 Beaver ;'. Lane 143 Beazley v. Harris 426, 508 Becher, Ex pdrte 486 Beckham v. Drake 619 Bedell v. Bedell 340, 341 V. Constable 393, 408, 436 V. Lewis 596 Bedford v. M'Kovvl 360 Beech v. Keep 284 Beecher v. Crouse 462 Beeler v. Bullett 636 V. Dunn 457 V. Young 538, 649, 555 Beeston v. CoUyer 614 Beilby, Ex parte 193 Belford v. Crane 282 Bell V. Bell 179 V. Drummond / 620 V. Hallenback 374 V. Herrington 605 V. Jasper 492 V. Morrison 581 Bellefontaine, &c., K. R. Co. V. Snyder 572 Beller v. Jones 343 V. Marchant 545 Bellinger v. Shafer 473 Belloc V. Davis 155 Bellows V. Kosenthal 247 Bellune v. Wallace 492 Belt V. Ferguson 270 Belton V. Briggs 579, 586 V. Hodges 544 Beniis v. Call 237 Benadum v. Pratt 295 Benedict v. Martin 641 Benham v. Bishop 679, 580 Benison v. Worsley 420 Benjamin v. Bartlett 102 V. Benjamin 76, 100 Bennet v. Bennet 340, 342, 350 Bennett v. AUcott 356 V. Byrne 416/417, 418, 490 V. Davis 188, 540 V. Gillett 367 V. Ives 629 V. Smith 32, 57, 58 V. Welder 528 Benson v. Benson 196 V. Kemington 345 Bent V. Bent 285 V. Manning 515, 549, 553 Bently v. Cooke 65 V. Griffin 83 V. Shreve 478 Benton v. Benton 36 Benwell v. Inns 610 Benyon r. Jones 73 Beresford v. Archbishop of Armagh 227 Bergen v. Udall Berger v. Jacobs Berreblock v. Michael Berry v. Donley V. Owens I'. Johnson Bertrand v. Elder Best V. Best V. Givens Bethlem v. Roxbury Bethune v. Green Bettle V. Wilson Betton's Trust Estates, hi re Betts V. Betts V. De Vitre V. Kimpton Bibb V. McKinley Bigelow V. Grannis V. Kinney Bill V. Cureton Billings V. Baker V. Taylor Bindley v. MuUoney Binion v. Miller Binnington v. Wallis Bird V. Brown V. Davis V. Jones V. Pegg V. Pegrum V. Randall 625, Birdsong v. Birdsong Birt V. Barlow V. Bontinez Biscoe V. Kennedy Bishop, In re V. Bishop V. Blair V. Shepherd Bissell V. Bissell Black V. Bryan V. Galway V. Hills V. Tricker V. Whitall Blackborne v. Haigh Blackburn v. Crawfords 42, 44 V. Mackey Blacklow V. Laws Blacl^man v. Baumann V. Davis Blackmore v. Brider V. Shelby Blackwell v. State Blades v. Free Blagden, Ex parte Blake v. Blake V. Douglass V. Lanyon V. Leigh V. Lord V. Pegram 439, 496 Blaker v. Cooper 375 215 78 154 881 419 282 37 580 384 470 294 142 218, 231 637 161, 162 443 590 584 281, 284 164 185 293 516 386 634 155 93 593 194 631, 632 285 109 47 221 317 65 157 349 42,43 90, 230 155 585 244 377 106 , 305, 308 329 191, 192 485, 486 593 28 469 527 87, 180 131 153, 440 559 631 317, 337 66 497, 500 301 TABLE OF CASES CITED. XXXI Blanchet v. Foster 270 Blandford v. Marlborough 272 Blanflin, In re 232 Blaiikensliip v. Stout 586 Blaymire v. Haley 357 Bledsoe v. Britt 429 Blevins v. Buck 213 Bliss I'. Sheldon 274 Blodgett V. Brinsniaid 28 Blodwell V. Edwards 387 Blogg V. Kent 618 Blonifield v. Eyre 506 Blossom V. Barrett 34 Blood V. Harrington 593 Blount V. Bestland 116 Bloxam i-. Elsee 633 Blue V. Marsliall 464 Blunt V. Melcher 660 Blythe v. Granville 274 Boast V. Firth 605 Bobe V. Frowner 105 Bobo V. Bryson 371 V. Hansell 582 Boggs V. Adger 476 Boini V. Headley 374 Bold V. Hutchinson 268, 272 Bolden v. Nicholay 224 Bolingbroke v. Kerr 136 Bollin V. Shiner 46 Bolton V. Miller 360, 368 Boniar v. MuUins 289 Bond, Ex parte 324 414 420 V. Lockwood 321, 472, 491, 500 513 V. Simmons 126 132 Bones' Appeal 606 Bonham v. Badgley 28 Bonnell v. Berryhill 448 449 Bonney v. Reardin 74 ,558 Bonsail's Case 467 Bonshiugh v. Bonslaugh 145 Boobier v. Baobier 370 Boody V. McKenney 579, 585 588 Bookter, Succession of 431 Bool V. Mix 538, 539 546 587 Boon V. Bovvers 446 Boos V. Gomber 232 Booth V. Dean 622 Borst V. Spelman 285 Borton v. Borton 529 Boston Bank v. Chamberlin 584 Boston Glass Manufactory v. Bin- ney 632 Bostvvick, Matter of 327 , 457 V. Atkins 586 Bosvil V. Brander 120 ,130 Botham r. M'Intier 467 Bowen t'. Lebree 218 287 Bowie r. Stonestrcet 286 Bowman's Ap])eal 472 Bowyer's Appeal 145 Boyd V. Boyd 376 ,493 V. Blaisdell 355 Boyd V. Gault V. Glass v. Sappington Boyden v. Boyden Boyers v. Newbanks Boyes v. Bedale Bo\ett V. Hurst Boy kin r. Ciples Boyle V. Brandon V. Chambers Boynton v. Clay V. Dyer r. Hubbard Bracegirdle r. Heald Braekett v. Lubke r. Wait Bracy v. Kibbe Bradford ik Goldsborough V. Greenway Bradley v. Hughes V. Pratt V. State Bradshaw i^. Beard V. Bradshaw Brame v. McGee Brand v. Abbott Bratney i\ Curry Bray v. Wheeler Brayshaw i\ Eaton Brazer v. Dean Brazier ik Clark Breadalbane v. Chandos Breadalbane Case Bred in v. Dwen Breed v. Judd V. Pratt Brent v. Grace's Adm'r Brett V. Green well Brewer v. Swirles Bridge v. Bridge V. Brown Briers v. Hackney Briggs V. Briggs V. McCabe V. Morgan V. Titus Brigham i-. Boston, &c., R. R. 679, 688, 201, 202, 496, 009, 537, 552, 327, 476, 648, 421, Co. 400, V. Wiieeler Brinton v. Hook Brisbane v. Bank Bristow i". Eastman Britter v. Robertson Britton v. Williams Broadus ?•. Rosson Hrock V. Parker Brockbank v. Whitehaven Junction R. R. Co. Bromley v. Wallace Bronson v. Southbury Brook i\ Brook V. Turner Brooke v. Brooke 196, 492 444 330 589 472 313 477 208 359 154 695 614 378 618 642 153 360 282 218 196 558 61 166 438 264 477 171 371 664 171 498 272 43 456 562 605 496 133 224 284 327 613 57 646 31 234 421 407 289 474 667 237 542 457 605 108 109 672 49 252 254 XXXll TABLE OF CASES CITED. Brooker v. Scott 549 Brookfiekl v. Allen 94 Brooks V. Brooks 493, 506 V. Dent 266 V. Martin 171 Brown v. Ackroyd 79 V. Bamford 198, 223 V. Belmarde 310 V. Bonner 273 V. Brown 236, 285, 462, 530, 531 V. Burk 377 V. Caldwell 635, 575 V. Carter 282 V. Chase 462 V. Christie 486 V. Croft 613 V. Deloach 330 v. Dunham 474 V. Fifield 106 V. Gale 144 V. Hull / 596 V. Jones 265 V. Kemper 215 V. Laselle 66, 72 V. Lent 630 V. Lynch 313, 412, 413 V. McCune 568 V. M'Donald 874 V. Midgett 91 V. ]\Iullins 458 V. Patton 90 V. Purviance 638, 645 V. Ramsay 346 V. Scott 374 Browning i\ Reane 29 Bruce v. Burke 33 V. "Wood 147 Bruin v. Knott 324, 326 Bruner v. Whcaton 288 Brunnel v. Witherow 264 Brunner's Appeal 74, 236 Brunswick v. Litchfield 47 Brush V. Blanchard 878 Bryan v. Doolittle 215 V. Jackson 330 V. Manning 485 V. Rooks 162 V. Spruill 121, 126 r. State 632 Bryant ?-. Bryant 232 V. Craig 477 V. Flight 620 V. Merrill 217 V. Richardson 549 Brydon v. Stewart 643 Bubliers v. Hardy 135 Buchanan v. Buchanan 274 V. Deshon 265 V. Turner 258 Buck V. Gilson 233 V. Goodrich 143, 165 Buckell V. Blenthorne 254 Buckley v. Wells 231, 249 Bucksport V. Rockland 371 Buckworth v. Buckworth 823 Buell V. Shuman 155 Buffaloe v. Whitedeer 301 Buford V. McLung 109 Bugg V. Franklin 126 Bulkley v. Noble 377 Bullard v. Briggs 282 Buller V. Harrison 629 Bullock V. Babcock 362, 563, 564 V. Knight 137 Bullpin V. Clarke 221 Bumpas v. Dotson 490 Bunker v. Bennett 67 Bunn V. Winthrop 388 Burchard i\ Frazer 233 Burclier v. Ream 232 Burdens v. Amperse • 288 Burdick v. Burdick 318 V. Moon 234 Burger v. Belsley 109 Burgess v. Burgess 28 V. Carpenter 652 Burghart v. Angerstein 552 V. Hall 554 Burk V. Howard 100 Burke, Matter of 323, 324 Burleigh v. Coffin 114, 165, 166 Burley v. Russell 568 Burlingame v. Burlingame 368 Burnaby v. Griffin 220 Burnard v. Haggis 565 Burnet r. Burnet 444 Burnett v. Kinnaston 123 Burnham v. Bennett 122 V. Dalling 496, 514 V. Holt 348 V. Seaverns 564 Burns i'. Hill . 567 V. Lynde 235 Burr V. Sherwood 117 V. Wilson 371, 530 Burrett v. Booty 95 Burris v. Page 184 Burritt )-. Burritt 322 Burrows v. Burrows 133 Burson's Appeal 216 Burton v. Burton 73 V. Holley 257 V. Pierpont 175 V. Tunnell 441 Burwell v. Corbin 595 Bush V. Lindsey 87 Bushnell r. Bishop Hill Colony 830 Butterfield r. Ashley 354 V. Beall 147 r. Forrester 639 V. Heath 265, 282 V. Stanton 282 Butler V. Breck 69, 559 V. Buckingham 153 V. Butler 322 TABLE OF CASES CITED. XXXlll Butler r. Clieatham 185 V Freeman 334, 396 V Gastrin 27, 28 V. Slam 378 V Tucker 624 Buzzell 1 •. Laconia, &c., Co. 643 Bybee r. Sharp 458, 514 Byers v- Des Moines, &c., R. R. Co. 595 Byraiii v . McGuire 640 Byrne v. Van Hoesen 399, 424 c. Cadogan v. Kennett 277 Cadwell v. Slierman 349 Caffee v. Kelly 112 Caffey i-. McMicliael 516 CafFrey r. Darby 473 Caliill V. Campbell 248 V. Patterson 347 Cairns v. Colburn 285 Caldwell v. Drake 72 V. Renfrew 256, 259, 261 Calhoun v. Calhoun 500 Calkins v. Long 94, 95 Call V. Ruffin 502 Callahan v Patterson 215 Callo (.'. Brouncker 614 Calmady v. Calmady 173 Calvert v. Godfrey 481 Camden v. Mullen 250 V. Vail 235 Camelin v. Palmer Co. 98 Cameron v. Baker 385 Cammack v. Lewis 179 Canipau v, Shaw 405 Campbell v. Bainbridge 274 V. Campbell 349, 370, 374 I'. Cooper 346, 632 V. French 134 r. GuUatt 44 V. Ingilby 529 V. Mackay 317, 454, 460 V. Stakes 362, 566 V. Twemlow 65 V. Wallace 165 V. White 230 Campion v. Cotton 166, 264 Canajoharrie r. Johnson 384 Can by v. Porter 144 Canefield v. Chamber 109 Caney v. Bond 473 V. Patton 80, 90, 94 Canjolle v. Ferrie' 306, 308 Cannel v. Buckle 266, 529 Cannon v. Alsbury 535 V. Caimon 308 V. Grantham 215 Canovar v. Cooper 347 Cantine v. Pliillips 87,88 Cape V. Cape 192 Capehart v. Huey 461 Capel V. Powell 104, 300 Card V. Patterson 154 Carelton v. Haywood 105 Carew v. Rutherford 604 Carey i-. Berkshire R. R. Co. 110 Carl V. Wonder 102 Carleton v. Earl of Dorset 269 V. Lovejoy 112 Carlisle v. Town of Sheldon 110 f. Tuttle 313, 445 Carll i: Prince 32 Carlysle i'. Carlysle 477 Carmichael v. Hughes 324 V. Wilson 4 58 Carnahan v. Allderdice 537 Carne v. Brice 193 Carow V. Mowatt 521 Carpenter v. Leonard 237 V. McBride 470 V. Mitchell 238 V. Moore 67 V. Schermerhorn 156 Carr v. Carr 113 V. Clough 543, 546, 591 V. Eastabrooke 133 V. Taylor 116, 119, 134 Carr's Trusts, In re 157 Carrell v. Potter 548, 579, 588 Carrol v. Bird 625 Carskadden v. McGhee • 462 Carson i'. Murray 185 V. Watts 349 Cartw. Rees 162 Carter v. Anderson 226 V. Carter 130, 133, 216 V. Grimshaw 374 V. Howard 83 V. Towne 670 V. Wann 181 Cartledge v. Cutliff 263 Cartwright v. Bate 96 v. HoUis 212 Carutliers v. Caruthers 529 Cary v. Gary 512 Casey v. Wiggin 120 Casey's Trusts, In re 274 Cassedy v. Jackson 135 Cassin v. Delany 104 Castle V. Wilkinson 152 Caswell V. Hill 282 Case V. Phelps 282 Cater v. Everleigh 206 Cateret v. Paschall 1H8 Cathcart v. Robinson 281 Catherine Strong, In re 530 Cato V. Gentry 470 Caton V. Rideout 219, 227 Catron v. Warren 230 Caughey r. Smith 354 Caulk V. Prcon 16 Cave V. Roberts 169 Cavenaugh v. Ainchbacker 257 Cawthorn v. Cawdrey 609 XXXIV TABLE OF CASES CITED. Cayzer v. Taylor Chadbounie i-. Rackliff Chamberlain v. Hazlevvood V. Milwaukee R. R. Co. Chamberlin i-. Morgan Chambers v. Perry 113, Chambles v. Vick Cliampney, Ex parte Chandler v. Broughton V. Commonwealth V. Glover 581, V. McKinney V. Simmons Chandos v. Talbot Chaney v. Smallwood Cliapin V. Livermore Chapline v. Moore Chapman v. Foster V. Qiay V. New York, &c., R. R. Co. V. Tibbits V. Williams Chappel V. Causey Chappie V. Cooper Charles v. Charles I'. Coker Chase v. Chase V. Elkins V. F.athaway I'. Smith Cheek v. Waldrum Cheesman v. Exall Cheever v. Wilson Cheney v. Arnold V. Pierce Cheshire v. Barrett V. Payne Chester v. Greer Chetwynd v. Chetwynd Cheuvete v. Mason Chew V. Beall Chew's Estate Chicago V. Robbins Chicago, &c., R. R. Co. v. Dunn V. Jackson V. McCarthy Child V. Hardyman Childress v. Cutter 15, V. Mann Childs V. McChesney V. Smith Chilton V. Cabiness Chorpenning's Appeal 469, Chretien v. Her Husband Christensen v. Stumpf Chubb V. Stretch Church V. Landors V. Mansfield Churchill v. Corker V. Dibbin 194, 462, 167, 179, 552, 218, 421, 228, 100, 579, 231 643 588 109 645 619 517 466 433 640 524 584 537 505 124 495 492 457 238 258 637 474 233 116 558 274 228 300 371 424 369 144 626 299 43 185 589 270 208 341 234 227 430 642 215 642, 643 612 91 212 93 234 185 506 511 54 250 264 100 639 285 254 Cincinnati v. Newell 154 V. Stone 612 Cincinnati, &c., R. R. Co. v. Clark- son - 624 Cipperley v. Rhodes 186 City of Chicago v. Major 572 V. Starr 571, 573 City Council v. Van Roven 75 Glamorgan v. Lane 585 Clanton v. Burgess 281 Clapp V. Greene 349 V. Houghton 143 V. Stoughton 115, 165 Clarges v. Albermarle 174 Claridge v. Crawford 593, 594 V. Evelyn 521 Clark V. Bank of Missouri 218 V. Burgh 142 V. Burnside 471, 472 462 162, 164, 217, 301, 302 38 369 642 477 560 218 415, 459, 502 198 213 289 185, 474, 498 593 V. Casler V. Clark V. Field V. Fitch V. Fry V. Garfield V. Goddard V. Maguire V. Montgomery V. Pister V. Tennison V. Thompson V. Tompkins V. Turner V. Waterman 617 V. Watson 595 V. Whitaker 494 Clark's Appeal 439 Clarke, In re 458 V. Clay 497 V. Cordis 412, 447 V. Darnell 434 V. Gilmanton 597 V. Jaques 199 V. Leslie 552, 555 V. Lott 301 V. Windham 202 V. Wright 388 V. Van Surlay 446 Claussen v. La Franz 135 Clawson v. Clawson 215 Clay V. Brittingham 487 V. Clay 477 V. Irvine 160 Cleaveland v. Mayo 362 Cleaver v. Kirk 377 Cleland v. Cleland 134 Clement v. Mattison 30 Clementstine v. Williamson 581 Clemson v. Bush 597 Clerk V. Laurie 225 Cleveland v. Hopkins 421 Clifford V. Burton 100 V. Laton 81, 93 TABLE OF CASES CITED. XXXV Clifton V. Goodbun 387 V. Haig 116 Clinton v. Hooper 178 V. Kowland 328 V. York 369, 370 Cloud V. Hamilton 346, 347, 370 Clough V. Bond 160 V. Clough 629 Clowes V. Clowes 37 V. Van Antwerp 469, 500, 513 Coates V. Gerlach 282, 285, 286 V. Wilson 549 Cockayne, Ex parte 404 Cocker v. Quayle 224 Cochran v. Van Surlay 446 Cochrane, In re 61 Cockrell v. Cockrell 431 Coe's Trust, In re 327, 458 Coffin V. Bramlitt 476 V. Dunham 79 V. Jones 66 V. Morrill 122, 151 Coggshall t'. Tibhetts 185 Coham v. Coham 410 Cohen V. Armstrong 576 Colburn v. Patmore 626 V. Woodworth 619, 620 Colby V. Lamson 249 Colcock V. Ferguson 537 Colcord V. Swan 156 Cole V. Cole 29, 339 V. Eaton 456, 462 V. O'Neill 270 V. Pennoyer 585, 588 V. Seeley 74 V. Sliurtleff 70 V. Van Riper 235 Coleman v. Hallowell 163 V. Satterfield 231 Collins V. Brook 695 V. Collins 36, 294 V. Evans 618 V. Hoxie 388 V. Mitchell 91 V. Price 619 V. Vining 460 Colsten i;. Morris 337 Colton V. Goodson 430 Coltman v. Hall 448 Columbine v. Penhall 264 Colvin I'. Currier 214 V. Holbrook 628 Commissioners v. Hildebrand 86 Comm'rs of Poor v. Gausett 321 Commonwealth v. Addicks 340 V. Baird 616 V. Briggs 340 V. Cox 492, 503 V. Fee 384 V. Feeney 102 V. Fletcher 231 V. Gamble 560 V. Green 524 Commonwealth v. Hamilton 321 V. Hunt 48 V. Hutcliinson 527 V. Lewis 102 V. McAfee 59 V. Mead 523, 524 V. M'Keagy 343 V. Moore 605 V. Murray 349 V. Phillipsburgh 73 V. Khoads 446, 503 V. Stump- 42 V. Tryon 102 V. Van Lear 605 Compton V. Bearcroft 47, 48 V. Collinson 255 V. Compton 416 Congdon v. Perry 624 Conkey v. Dickinson 441, 497 Conklin v. Ogboni 582 V. Thompson 563 Conlin v. Charlestown 645 Connolly v. Hull 552, 553 Connor v. Berry 215 Conovar v. Cooper 370 Conrad v. Thomo 235 Conroe v. Birdsall 638, 568 Converse v. Converse 286 Conway v. Beazley 48 V. Smith 287 Cook V. Baker 262 V. Bradley S66 V. Burton 64 V. Cook 340 V. Toumbs 584 Cooke V. Beale 432 Cooke's Case 415 Coolidge V. Parris 104 Coombs V. Janvier 505 V. Queen's Proctor 255 V. Read 216 Coomes v. Houghton G41, 645 Coon V. Cook 442 Cooney v. Woodburn 207 Cooper V. Alger 242 V. Hepburn 486 V. Hunchin 73 V. Lloyd 92 V. Maddox 159 V. Martin 77, 320, 378 V. Phillips 617 V. Summers 413 V. Sunderland 485 V. Thornton 414 V. Whitney 185 V. Witham 105 Cooper's Case 430 Copp V. Copp 408, 429, 432 Coppedge v. Threadgill 134 Coppin V. 115 Corbet r. Tottenham 394, 433 Corbin v. American Mills 612 Corey v. Corey 369, 371 XXXVl TABLE OF CASES CITED. Corley v. Corley V. Green Cornelia v. Ellis Cornell v. Vanartsdalen Corning v. Fowler Corpe V. Overton 544, Corrie's Case Corrigan v. Kiernan 407, 408, V. Union Sugar Refinery Corj' v. Gertcken Cosegayne, Ex parte Coster 0. Coster Costigan v. Mohawk R. R. Co. Cotliran v. Lee 78 Cotteen v. Missing Cotter V. Layer Cotterell v. Homer Cottle V. Tripp Cotton V. Wood Cottrell's Estate, In re 824, Couglilin *'. Ryan Countess Da Cunlia, Goods of Countess of Portland v. Progers Countess of Portsmouth v. Earl of Portsmouth Countess of Strathmore v. Bowes Counts V. Bates Coverdale v. Eastwood Covington r. Leak Cowan V. Anderson Cowden v. Wright 353, Cowell V. Daggett Cowles V. Morgan Covviey v. Robertson Cowls V. Cowls 326, Cowton V. Wickersham Cox V. Combs 129 167 7'J 66 166 556 526 ,423 637 516 132 132 620, 623 i, 85 284 251 264 282 285 326 295 445 255 35 269 536 207 477 462 361 350 233 72 429 153 35 98 93 Hoffman V. Kitchin V. Midland Counties R. R. Co. 635 V. Morrow 161 V. Muncey 605 Cozine v. Home 418 Cozzens v. Whitney 230 Craft V. Rolland 230 Craig V. Brendel 67 Grain v. Barnes 497 Cramer v. Reford 112 Crandall v. Slaid 596 Crane v. Brice 113 V. Crane 310 V. Kelley 232 Cranston v. Sprague 490 Cranz v. Kroger 349 Crapster v. Griffith 519 Crawford i'. Verry 167 Cray v. Mansfield 513 Craycroft v. Morehead 68 Credle v. Carrawan 264 Crehore v. Creliore 37 Crensliaw v. Crenshaw 462, 497 Cresinger v. Welch 579, Creuze v. Hunter Cricket v. Dolby Crittenden v. Alexander Crocker v. Molyneux Crockett v. Calvert V. Crockett Ci-oft V. Alison V. Terrell Crofton V. Ormsby Crofts V. Middleton V. Waterhouse Cromwell v. Benjamin Cronise v. Clark Crook V. Henry V. Hill V. Turpin Cropsey v. McKinney Crosbie v. Hurley Crosby v. Crosby Cross V. Guthery V. Noble Crostwaiglit v. Hutchinson Crouch V. Martin Crowell's Appeal Croxton v. May Crozier v. Bryant Cruger v. Douglas V. Hey ward Crumb, Ex parte Crump V. Gerock V. McKay V. Morgan Crutchfield's Case 416 Crymes v. Day Cuckson V. Stones V. Winter Culberson v. Culberson Cummings v. Miller V. Powell Cummins v. Cummins V. Sharpe Cunningham v. Cunningham V. Fontaine V. Pool V. Reardon Curren v. Driver Currie v. TurnbuU Curry v. Bott V. Fulkinson V. Shrader Curtin v. Patton Curtis V. Bailey V. Curtis V. En gel V. Fox V. Hobart V. Ripiion Curtton V. Moore Gushing v. Cushing Cujisons V. Skinner Cutler V. Butler V. Cutler 586, 591 335, 337 387 127 609 639 185 638 431 274 225 637 85, 327 537 66 387 129, 443 112, 246 521 441, 500 107 152 266 123 498 133 108 286 322 428, 429 496 107 31 , 430, 467 542 628 521 274 236 540, 546 457, 500 230 311, 498 215 500 167 185 42 214 116, 161 215 537 498, 503 378, 605 205 165 472 410 70 377 615 258 55 TABLE OF CASES CITED. XXXVll Cutter V. Powell 619, 620, 622, 623 V. Waddiiigliam 212 Cutting V. Seabury 354 D. 392, 359, Dagley v. Tolferry Dailey v. Dailey Dain v. Wyckoff Dalbiac v. Dalbiac Daley W.Norwich & Worcester R.R. Co. 571, Dallam v. Walpole Dallas V. Heard Dalrymple v. Dalrymple 35, 40, 41, Dalton, In re V. Gib V. State Damon v. Osborn Dana ". Coombs 584, V. Stearns Daniel v. Adams V. Newton Dankel v. Hunter Dannelli v. Dannelli Darby v. Calligan Darkin v. Darkin Darley v. Darley 190, Darling v. Noyes Darlington v. Pulteney Davenport v. Bishop w. Davenport Davey v. Turner Davidson v. Graves V. McCandlish V. Young Davies v. Davies 530, V. Locket V. Solomon V. Turton V. Williams Davis V. Baugh V. Cain V. Caldwell 545, 550, V. Davis V. Detroit, &c., R. R. Co. V. Dickson ?j. Dinwoody V. Goodenow 373, V. Harkness V. Herrick V. Jones V. McDonald V. Meredith V. Prout V. Roberts Davis's Appeal 113, 151, Davison, Matter of V. Atkinson 188, (;. Johonnot 421, Dawes v. Howard 414 340 360 227 572 228 228 42, 43 530 554 406 633 589 581 151 419 152 310 238 219 322 331 147 264 237 153 265 230 585 620 F594 107 501 357 526 203 555 151 642 502 64 378 457 282 151 185 633 190 457 467 327 199 446 325 Dawson, Ex parte 446 V. Dawson 366, 387 V. Jay 453 u. Massey 608,515 Day V. Burnham 84 V. Croft 191 V. Everett 345 V. jNIessick 70 r. Padrone 115 Dayton v. Fisher 213 Deadrich v. Armour 165 Dean v. Bailey 232 V. Brown 199 V. Phillips 155 V. Richmond 301 V. Shelly 156 V. State 306 Deane v. Annis 330 V. Aveling 31 Deare v. Soutten 79, 94 Dearin v. Pitzpatrick 129 Deason v. Boyd 579 De Barranti v. Gott 265 De Bathe v. Lord Fingal 40? Dedham v. Natick 325 Deerfield v. Delano 640 Deerl}' v. Mazarine 255 Deery v. Cray 153 Dcford V. Mercer 510 Degg V. Midland R. R. Co. 644 Delafield v. Tanner 597 Delagarde ;•. Lempriere 129, 138 Delano v. Blake 579 De Manneville v. De Manneville 336, 396 154, 155, 228 409 285 631 155 282 108 43, 65 64 351, 352 65 Demarest v. Wynkoop De Mazar v. Pybus Deming v. Williams Dcmyer v. Souzer Den V. Demarest V. York Dengate v Gardiner Denison v. Denison Denn v. White Dennis v. Clark V. Crittenden Dennison v. Page 306 Dennvs v. Sargeant 78 Dennysville v. Trescott 370 Denson v. Patton 218 Dent V. Bennett 515 Derbishii-e v. Home 199 Dering v. Kynaston 274 Dermott v. Jones 623 Deroclier v. Continental Mills 562 De Roo V. Foster 569 Descelles v. Kadnius 90 Devanbagh v. Devanbagh 31 De Vries v. Conklin 232 De Witte v. Palin 480 Dexter v. Blanchard 331 Diaper r. Anderson 496 Dibble v. Dibble 410, 424 XXXVlll TABLE OF CASES CITED. Dibble v. Jones 570 Dickens v. N. Y. Central K. E. Co. 110 Dickenson v. Blisset 30 Dickerman v. Graves 64 Dickinson v. Swatman 259 V. Winchester 849 Dicks V. Grissom 370 Dickson v. Dickson 49 V. IMiller 205, 206, 229 Dietterich v. Heft 469 Digby V. Irvine 223 Dilk i\ Keighley 544 Dillage v. Parks 285 Dillaye v. Greenough 266, 274 Dillon V. Lady Mount Cashell 433 Dinsmore v. Biggert 206 Dixon V. Bell 631 r. Dixon 199,120 V. Hamond 626 V. Harrison 148 V. Homer 500 V. Hurrell 84, 94, 96 V. Olmius • 190 Doane v. Covel 605 Dobson V. Butler 300 V. Dobson 170 Docker v. Somes 511 Dodd V. Acklom 100 Dodge V. Favor 370 V. Hollinshead 235 Dodgson V. Bell 117 Doey. Ford 134 V. Himelick 627 V. Manning 281 V. Eusham 281, 284 V. Weller 148 V. Wilkins 139 Doe d. Birtwhistle v. Vardill 311, 313 Doker v. Hasler 64 Dold V. Geiger 124 Dominick v. Michael 261, 535, 536, 587 Donahoe v. Eichards 355 Donaldson v. Donaldson 284 Donne v. Hart 140, 219 Donnington v. Mitchell ' 160 Donovan v. Needham 327 Doolan v. Blake 198 Dorman v. Ogboume 412 Dorr, Petitioner 467 Dorrell v. Hastings 549 Doty V. Mitchell 227 Douglas V. Watson 590 Dover v. McMurphy 321 Dow V. Clark 595 V. Gould 68, 285 V. Jewell 154 Do we V. Smith 95 Dowling, In re . 152 V. Maguire 225 Downin v. Spreoher 487 Downing v. Sevmour 141 Downs V. New York Central B. E. Co- 571, 572 Doyley v. White Drake v. Eamsay Drane v. Bayliss Draper v. Jackson V. Joinville Draper's Case Dresel v. Jordan Drew V. Long V. Peckwell 73 585 441 118 478 137 100 157 605 V. Sixth Avenue E. E. Co. 360, 641 Driggs V. Abbott 163 Driver v. Driver 559 Druce v. Dennison 123, 134 Drue V. Thorn 72 Drury v. Conner 471 V. Drury 629 V. Scott 194 Drybutter v. Bartholomews 149 Duberly v. Gunning 109 Dublin & Wicklow E. E. Co. v. Black 583, 597 Dubois V. Jackson 216 Dubose V. Wlieddon 538, 557 Du Boulay v. Du Boulay 386 Duckworth v. Johnson 352 Duel V. Harding 681 Duffey V. Shockey 610 Dutield V. Cross 846 Duhring v. Duhring 185 Duke of Beaufort v. Berty 335, 429 Duke of Hamilton v. Lord Mohun 513 Dumain v. Gwynne 343 Dumaresly v. Fishly 40, 42 Dumond v. Magee 129 Duncan v. Crook 403 V. Duncan 43 V. Eoselle 243 Duncan's Appeal 270 Dunham v. Hatcher 408 V. Osborne 185 Dunn V. Bank of Mobile 203 V. Dunn 259 V. Lancaster 179 V. Sargent 116, 122, 217 Dunnahoe v. Williams 100 Dunning v. Pike 288 Dunsford v. Eidgwick 608 Duntze v. Levett 23 Durant v. Eitchie 287 Durell V. Hay ward 167 Duren v. Getchell 288 Duress v. Horneffer 245 Durgin v. Munson 642 Durnford v. Lane 529 Durr V. Bowyer 129 Durrant v. Friend 888 Dutcher v. Hill 485 Dutton V. Dutton 294 Duvall V. Farmers' Bank of Mary- land 129 D3'ce Sombre's Case 424 Dye V. Kerr 372 TABLE OF CASES CITED. XXXIX Dyer v. Cornell 481 Elliott V. Bentley 243 V. East 81 V. Cordell 125, 132 Dyer's Case 410, 424 V. Horn 559 Dygert v. Reraerschneider 282 Elhs V. Ellis V. Kenyon Ellison, Matter of V. Ellison 555, 556 228 487 284 E. V. Elwin Ellsworth V. Hinds 124 121, 151 E. B. V. E. C. B. 410 Elrod V. Lancaster 511 Eager v. Grimwood 355, 356, 359, V. Myers 552, 553 360 Elton V. Sliephard 193 Eagle Fire Ins. Co. v. Lent 539 Elwell V. Martin 666, 567 Eames v. Sweetser 81 Elzey V. Elzey 30 Earl V. Dresser 445 Emerick v. Coakley 289 V. Ferris 198 224, 225 Emerson, Appellant 500 Earl of Buckinghamshire v. D rury 169 V. Blounden 100 Earl of Durham v. Wharton 273 V. Clayton 238 Earl of Ilchester's Case 394 450 V. Harris 185 Earl of Salisbury v. Newton 130 V. Spicer 399 Earl of Shaftesbury v. Lady Han- Emery v. Emery 90 nam 394 V. Gowen 357 Earl of Thomond v. Earl of S affolk 71 V. Kempton 348 Earle v. Cram 443 V. Neighbour 95, 258 V. Dawes 381 V. Vroman 485 V. Hall 641 V. Ware 151, 152 V. Peele 555 Emmet v. Norton 81, 85, 95, 98 V. Reed 557 Emmons v. Murray 546, 586 Eaton V. George 235 Enders v. Beck 104 V. Hill 566 England v. Downes 269, 271 V. Nason 154 228 English V. Cropper 66 V. Tillinghast 265 V. Foxall 263 Eastern Counties R. R. Co. V. V. Wilson 621, 623, 626 Broom 640 Errat v. Barlow 327 Eckert v. Reuter 237 Ervin v. Brady 185 Eckford v. De Kay 510 Espey V. Lake 443, 516 Ede V. Knowles 278 Essex V. Atkins 155 Edelen v. Edelen 236 V. Essex 81 Edgarton v. Wolf 591 Esslinger v. Huebner 234 Edgerly v. Shaw 580 Estabrook i-. Earle 237 V. Whalan 94 231 Estill I'. Rogers 43 Edgerton v. Jones 234 Etherington v. Parrott 82, 88, 91, Edmond's Appeal 59 93 Edmondson v. Machell 359 Etna, The 345, 370 Edrington v. Harper 143 Evans v. Bennett 623 V. Leach 623 V. Chester 73 Edward v. Freeman 376 V. Davies 387 Edwards, Ex parte 409 V. Secrest 118 V. Davis 329 , 365 , 366 V. Walton 357, 358 V. Freeman 376 Evansville R. R. Co. v. Baum 641 V. Jones 284 Evarts v. Nason 499, 500 V. Stevens 248 Evelyn v. Templar 281 V. Towels 91 Everett v. Sherfey 347, 356, 370 Eichelberger's Appeal 462 Everitt v. Everitt 274 Eitel V. Walter 330 EversoU v. King 110 Elder (.'. Hemis 641 Everson v. Carpenter 638, 584 Elderton v. Emmens G18 Everts v. Everts 514 Eldredge v. Forrestal 185 Evertson v. Evertson 608 Eldridge v. Lippincott 406 Ewers r. Hutton 95 V. Preble 21^ ,216 Ewing V. Smith 227 Elgin's Case 433 Eyre v. Countess of SI aftesbury 425, Elijah V. Taylor 232 437, 450, 517 Elliot V. ColUer 162 Ezelle V. Parker 235 xl TABLE OF CASES CITED. Fairlie v. Hastings Falk V. Turner Falmouth Bridge Co. i'. Tibbetts Fane, Ex parte Fanning v. Chadwiek Farmers' Bank v. Long Farmington v. Jones Farnsvvorth v. Oliphant V. Richardson Farr p. Sherman V. Sumner Farrance v. Viley Farrell v. Ledwell V. Patterson 214, Farrer v. Bessey IK Chirk Farrinston v. Parker Farweil v. Boston & Worcester R. R. Co. Faulkner v. Davis V. Erie R. R. Co. 643, Favorite v. Booher Fawcet v. Beavres Fawcett v. Cash Fa w try v. Fa w try Fay V. Hurd 429, V. Taylor Feigley v. Feigley Felch V. Allen Felker v. Emerson Feller v. Alden Fellows V. Tann Feltliam v. England Felton V. Long 507, V. Reid Fenton v. Clark Feran v. Rudolphsen Ferguson v. Bell 539, V. Tweedy Fernslee c Moyer Fettiplace v. Gorges 219, 253, Fewell V. Collins Fewings v. Tisdal 607, 619, Fidler v. Higgins Field V. Evans V. Goklsby V. Lucas V. Moore V. SchiefFelin V. Sowle V. Torrey Fielder v. Hanyer Fielding's Case Fields V. Law Filleul V. Armstrong Filliter v. Phippard Filmer v. Lynn 81, Finch V. Finch V. Gore Finley v. Jowle Finn v. Rose 215 Finney v. State 419 Fire Ins. Co. v. Bay 228 635 Firth V. Denny 171 274 Fish v. Miller 516 155 Fisher v. Fisher 373 252 V. Grimes 184 506 V. Kimball 258 282 V. Lunger 605 321 V. Mowbray 537 498 Fisk V. Cushman 218 343 V. Lincoln 457 235 Fitch V. Peckham 372 542 V. Hill 65 458 Fitler v. Filler 322 67 Fitts V. Hall 566, 567 216 Fitzgerald v. Fitzgerald 275 72 Fitzgibbon v. Blake 199 418 V. Lake 484, 485 223 Fitzhue v Dennington 519 Fitzmaurice v. Sadlier 282 642 Fitzpatrick v. Fitzpatrick 33,46 481 Flaherty v. Sutton 185 645 Flanagan v. Bishop Wearmouth 90 502 V. Flanagan 151 631 Fleet V. Perrins 122, 163, 227 607 Flenner v. Flenner 266, 275 168 Fletcher v. Ashley 270 434 V. Fletcher 466, 477 493 V. People 333 285 V. Walker 474 642 Flint V. Gloucester Gas-Li ghtCo. 645 100 Floyd V. Johnson 510 232 Flynn v. Beebe 643 202 FoUit V. Koetzow 385 645 Foltz's Appeal 496 514 Fonda v. Van Home 374, 392, 538 235 Foote V. Bryant 282 623 V. Murray 458 248 Ford V. Miller 456 586 V. Monroe 360, 361 164 V. Phillips 581 454 V. Stuart 263, 264 254 V. Teal 153, 215 106 Forbes v. Moore 16 620 Foreman v. Foreman 590 481 Forman v. Marsh 481, 590 198 Forney v. Hallaker 109 485 Fornstill v. Murray 48 462 Forse v. Hembling's Case 251 529 Forster v. Fuller 464 471 Forsyth v. Hastings 580, 605 221 Foss V. Foss 37 506 Foster v. Alston 340, 451 162 V. Bisland 503 37 V. Essex Bank 362, 638 406 V. Mott 416 614 Foteaux v. Lepage 441 457, 478, 502 637 Foulks V. Rhea 185 ,100 Fountain v. Anderson 466 265 V. Boodle 625 605 Fowle V. Tidd 242 593 1 Fowler v. Colt 378 TABLE^ OF CASES CITED. Xli Eowler v. Frisbie 107 V. Rice 213, 214, 216, 233 V. Seaman 237 V. Shearer 155 V. Sir John Dineley 94 V. Trebein 288 Fowlkes V. Baker 329 Fox V. Doherty 179 V. Jones 232 V. Minor 422, 462 Foxwortli V. Magee 234 Fraim v. Frederick 65 Frampton v. Frampton 293 Francis v. Felniet 561, 562 Frank v. New Orleans, &c., R. R. Co. 352 Frankfort v. New Vineyard 368 Franklin v. Creyon 202 V, Mooney 560 V. South-Eastern R. R. Co. 353, 360 Franks, Ex piuln 255 V. Martin 268 Frary v. Booth 295 Eraser, Goods of 261 Frazer v. Freeman 640 Frazier v. Gelston 228 V. Massey 535 V. Rowan 562 V. Steenrod 486 Frederick v. Coxwell 151 V. Moore 492 Freelaconey v. Coleman 109 Freeman v. Bridger 551, 553 V. Fairlee 132 V. Freeman 202 V. Hartman 269 V. Hill 266 Freestone v. Butcher 81, 84 French v. Currier 476, 478 V. Davidson 460 V. French 278 V. Mehan 288 V. Thompson 466 Freto V. Brown 321, 378 Fridge v. State 513, 537 Friend v. Thompson 57, 58, 321 Friend's Case 617 Frierson v. Frierson 285 V. Travis 596 Frost V. Willis 93 V. Winston 478 Fry V. Derstler 109 V. Fry 133, 204 Fugate V. Pierce 67 Fulgham v. State 59 Fuller V. Naugatuck R. R. Co. 110, 165 V. Wing 469, 494 Fulton V. Smith 377 Fuqua v. Hunt 462 Furillio v. Crovvther 385 Furlong v. Bartlett 591 Furlong v. Hysom 84 Furman v. Coe Fuss V. Fuss Fussell V. Dowding Fynn, In re G. 470 287 300 337 G. V. G. 31,32 Gage V. Dauchy 232 t'. Reed 72, 102 Galley v. Crane 581 Gaines v. Poor 218 V. Spann 407, 408 Gainor v. Gainor 271 Galbraith v. Black 374 Gale V. Parrot 845, 369 V. Wells 470, 516 Gallego V. Gallego 116, 122 Galusha v. Hitchcock 100, 154 Galway v. Fullerton 234 Gamber v. Gamber 214 Gambs v. Covenant, &c., Life Ins. Co. 289 Gandall v. Pontigny 619 Gannard v. Eslava 285 Gannaway v. Tapley 508 Gardiner v. Holt 597 Gardner v. Baker 282 V. Gardner 228 V. Heyer 388 V. Marshall 132 Garin v. Burton 638 Garlick v. Strong 282 Garner v. Board 562 Garrard v. Garrard 274 Garrett v. Dabney 258 Garth v. Howard 685 Garthshore v. Chalie 170 Garver v. Miller 294 Garvin v. Ingram 287 V. Williams 515 Gary v. Cannon 476 V. James 370 Gaston v. Frankum 221 Gaters i\ Maddeley 115, 118 Gates V. Brower 100 u. Davenport 562, 623 Gaudet ik Gaudet 438 Gault i: Saffin 214 Gazynski r. Colburn 110 Gedder, Ex parte 129 Gee V. Gee 205 V. Lewis 238 Gelston v. Frazier 228 Genet v. Tallmadge 462 Genner v. Walker 649, 550 George v. Bussing 253 V. Goldsby 126 V. Ransom 234 V. Spencer 285 V. Thomas 688 V. Van Horn 359 xlii TABLE OF CASES CITED. Georgia R.R. Co. v. Wy Getts, Petition of Gliolston v. Gholston Giacometti v. Prodgers Gibbes v. Cobb Gibbins v. Eyden Gibbs V. Harding V. Merrill Gibson v. Walker Gilbert v. Guptill V. Mayford V. McEachen V. Plant V. Schwenk V. Wetlierell Gilchrist v. Cater Gilker v. Brown Gill V. Read V. Shelley Gillespie v. Worford Gillet V. Camp V. Stanley Gilliat V. GiUiat Gillis V. Brown Gilman v. Andrus V. D wight V. Eastern R. R. Gilniartin i'. New York Gilmore v. Rodgers Gilson V. Spear V. Zimmerman Ginochio v. Porcella Girand v. Richmond Girty v. Logan Gishwiler v. Dodez Given v. Charron V. Marr Glaister v. Hewer Glascott V. Warner Ghiss V. Warwick Glassey v. Hestonville, Co. Gleason v. Gleason Glen, Ex pm-te Glidden v. Taylor V. Unity Gloucester v. Page Glover, Ex parte V. Alcott V. Glover V. Ott V. Proprietors Lane Godard v. Wagner Goddard v. Snow Godfrey v. Brooks Goldbeck r. Goldbeck Goldsmith v. Russell Goleman v. Turner Gonsolis V. Gearhart Good V. Harris Goode )'. Harrison Goodenough, In re m 110 498 59 135 275 164 293 570 228 477, 497, 507 155 457 100, 230 438, 439 376 192 521 92, 322 887 154 116, 378 539 395, 407 184 Co. 79,85 610 643 637 485 547 288 87, 175, 180 609 598 339 619, 623 300 129 411 230 &c., R. R. 353, 361 55 29 232 605 416 337 214, 243, 246 470 545 of Drury 112 324 269 84, 100, 247 42 264, 277 463 613 202, 203, 207 544, 577, 583 342, 343 Goodhue v. Dix 647 Goodman v. Goodman 313 V. Kennell 638 V. Pocock 619, 620 Goodrich v. Bryant 294 V. Goodrich 341 V. Tracy 100 Goodriglit v. Straphan 148 Goodrum v. Goodrum 218 Goodsell V. Myers 538, 581, 590 Goodson V. Goodson 514 Goodwin v. Kelly 98 V. Moore 593 V. Thompson 33, 355 Goodyear v. Rumbaugh 214, 217 Gordon v. Dix 366 V. Gordon .387 V. Haywood 153 V. Potter 327, 329 V. Rolt 640 Gore V. Gibson 30 V. Knight 220 Gornall's Case 418 Goshen v. Richmond 31, 47 Goss V. Cahill 231 Gould V. Carlton 112 V. Webster 144 Goulding v. Davidson 75, 235 Gove V. Farmers', &c., Ins. Co. 104 Govier v. Hancock 92 Grace v. Hale 546, 549 Graham, Goods of 259, 261 V. Bennett 310, 311 V. Davidson 440 V. Dickinson 151 V. Graham 202 V. Houghtalin 399 V. Londonderry 173, 174, 175 Grant v. Whitaker 429 Grantman v. Thrall 595 Grapengether v. Fejervary 230 Grattan v. Grattan 377 Gray v. Crook 201 V. Dowman 225 V. Durland 359 V. Fox 476 V. Otis 98 V. Thacker 72, 102 Greedy i'. Lavender ' 133 Green, Ex parte 327 V. Greenback 513.5 V. Hudson R. R. Co. 109 . V. Johnson 494 V. Macnamara 641 V. New River Co. 626 V. Otte 132 V. Pallas 247 V. Scranage 228 V. Sperry lOO Greenfield Bank v. Crafts 367 Greening v. Hall 473 Greenly v. Daniels 490 TABLE OF CASES CITED. xliii Greenwell v. Greenwell 323 Hall V. Lay 415 Greenwood v. Greenwood 357 358 V. Simmons 586 Gre^g V. Gregg 497 ,498 V. Storer 417 Gregory v. Piper 640 V. Waterhouse 254 Gridley v. Watson 282 V. Weir 79 V. Wynant 154 V. Young 119 Griffin V. Banks 294 Hall's Estate, In re 185 V. Brown 65 Hallenbeck v. Berkshire R. R. Co. 110 V. Reynolds 104 Ham V. Boody 100 V. Taylor 152 V. Ham 410 Griffls V. Younger 588 Hamaker v. Hamaker 31 Griffith V. Griffith 201 202 Hamersley v. Smith 207 V. Parks 491 Hamilton v. Bishop 201, 202, 203 204 V. Schwenderman 539 V. Douglas 249 Griffiths V. Teetgen 357 V. Hamilton 42 Grigsby v. Breckenridge 176 V. Hector 293 Grimke v. Grimke 253 V. Moore 430 Grindell v. Godniond 7 9, 88 Hamley v. Gilbert 325 Grinnell v. Wells 351, 352 355 356 Hamlin v. Atkinson 514 Grist V. Forehand 445 i\ Bridge 72 Griswold v. Penniman 116 V. Jones 150 Gronfier ;;. Puyniirol 421 V. Stevenson 519 Gross V. Reddy 214 Hammer r. Pierce 353 Grove v. Xevill 567 Hammersley v. De Biel 266 267 Grubb's Appeal 312 Hammond v. Corbett 215 349 Grute V. Locroft 139 140 Hamner r. Mason 492 Guernsey, Ex parte 474 484 Hampden, Case ot 395 Guild V. Cranston 695 Hampstead v. Plaistow 38 V. Guild 130 Hampton, Case of 469 Gulick V. Grover 100 V. State 65 Gunn V. Samuel 230 Hamrico v. Laird 274 Gunter v. Astor 360 Hanchett v. Briscoe 223 V. Williams 235 Hancock v. Merrick 90 322 Gunther v. State 442 V. Peaty 29 Gurley v. Gurley 168 Hands v. Slaney 523 549 Guthrie v. Morris 557 Handy v. Cobb 238 •Guttman v. Scannell 250 Hanford v. Bockee 166 234 Guy V. Du Uprey 473 Hanks v. Deal 574 Gwaltney v. Cannon 456 Hanly v. Downing 230 Gwin V. Vanzant 431 Hannen v. Ewalt Hanson v. Miller V. Millett 471 122 214 H. Hantz V. Sealy Harbman v. Kendall 42 589 Haase v. Koerschild 324 Hardenburgh v. Lakin 154 Haig V. Swiney 193 Hardie v. Grant 92 Haine v. Tarrant 557 Harding v. Harding 341 Haines v. Corliss 73 V. Earned 467, 471, 477 483 V. Haines 214 374 Hardinge, Goods of 135 V. Oatman 595 Ilardwick v. Paulet 372 Hair v. Avery 151 Hardy v. Boaz 217 V. Hair 55 t'. Waters 535, 541 543 Halt V. Houle 155 Harford v. Morris 35, 36, 47 Hale V. Plummer 282 Hargrave v. Ilargravo 306 308 Haley v. Bannister 326 Hargrove v. Webb 457 Hall V. Cone 513 Harkins v. Coalter 202 203 V. Creswell 216 Ilarland's Case 322 500 V. Eaton 73 Harlow v. Ilumiston 637 642 V. Gerrish 581 Harmer v. Cornelius 623 V. Hall 92, 130, 318, 371, 373 460 V. Killing 590 V. Hardy 152 Harnett v. ^M'Dougall 198 V. Hollander 351, 352, 355, 631 Harney v. Owen 561 V. Jones 439 1 Ilarover v. Cornelius 614 xliv TABLE OF CASES CITED. Harper v. Archer V. Gilbert V. Lemon V. Luff kin V. Scott Harring v. Coles Harris v. Butler V. Currier V. Harris V. Hicks V. Lee V. Morris V. Mott V. Nicholas V. Taylor V. Wall Harrison v. Adcock V. Andrews V. Bradley V. Cage V. Fane V. State V. Stewart Harriss v. Maby Harrod v. Harrod Harrop v. Howard Harshaw v. Merryman Hart, In re V. Gray V. Hart V. Logan V. Stephens Harten v. Gibson Hartfield v. Roper Hartley v. Cummings V. Hurle V. Tribber V. Wharton Hartman v. Dowdel V. Ogborn Hartness v. Thompson Hartwell v. Rice Harvey v. Ashley V. Hall V. Harvey V. Norton Harwood w. Fisher V. Lowell Hasheagan v. Specker Hassard v. Rowe Hastings v. DoUarhide Haswell v. Hill Hatch V. Gray V. Hatch Hatcher v. Cutts Hatliaway v. Bennett Hatz's Appeal Haugh V. Blythe Hause v. Gilger Havens v. Patterson Haviland v. Bloom V. Myers Hawcott V. Collins 116, 117, 121 I Hawkes v. Hubback 192, 195 605 Hawkins v. Craig 112 330 V. Jones 381 359 V. Obin 124 286 V. Watts 325 323 Hawkins' Appeal 513 356 Hawksworth t\ Hawksworth 317 372 Hawley v. Bradford 155 227, 467 V. Burgess 160 28 V. James 185 78, 79 Hay v. Bowen 124 90, 92 Hayden v. Smithville, &c., Co. 620, 643 220, 254 V. Stone 500 640, 641 Hayes v. Watts , 46 122 Haygood o. Harris 205 576 V. McKoon 503 587 Haynes' Adm'r u. Waggoner 321 119 Hays v. Henry 170 508 V. Seward 349, 373 262 Haywardy. Ellis 499,512 649, 550, 555 v. Hay ward 115 28 Hazard, In re 487 295 Head v. Briscoe 104 638 V. Halford 279 30 V. Head 306 198 Headen v. Rosher 219 84 Heard, Ex parte 445 407 V. Daniel 469 431 V. Stamford 69, 70, 159 372 Hearst v. Sybert 353 185 Heath v. West 584, 591 117 V. Withington 261 388 Heathman v. Hatl 202 351, 352 Heckle v. Lurvey 104 610, 618 Hedgeley v. Holt 621 192 Hedges v. Riker 471 387 V. Taffg 357- 576 Heffer v. Heffer 38 120, 123 Pleirn v. McCaughan 107 236 Helps v. Clayton 549 535, 536 Helyear v. Hawke 633, 635 377 Hemmenway v. Towner 308 274, 529, 535 Hemmingway v. Matthews 118 522 Hemphill v. Lewis 498 187 Hemstead v. Gas Light Co. 110 84 Henderson v. Coover 493 119 Hendin v. Colgin 161, 162 110 Hendry v. Hurst 500 230 Hennessy v. Stewart 348 473 Henry v. Dilley 217 541, 580 V. Pennington 508 214 V. Root 570, 578, 589 282 Herbert i\ Torball 526 512, 513 Herndon v. Lancaster 484 605 Herrick v. Fritcher 347 607 Herring l-. Goodson 411, 412 234 Hersclifeldt v. George 282 235 Hervey v. Moseley 355 216 Hesketh v. Gowing 385 487 Hetherington v. Hixon 179 129, 208 Hetrick v. Hetrick 160 208 Heugh v. Jones 237 282 Hewison v. Negus 282 TABLE OF CASES CITED. xlv Hewson, In re 174, 176 HodsoU V. Stallebrass 631 Heygate v. Annesley 1-27 Hornsby v. Lee 124 Heysliam v. Heysham 323 ' HoUman v. Gordon 629 Heyward v. Cuthbert 327, 334 V. Savage 185 Hey wood v. Brooks 372 V. Toner 246 Hickman's Appeal 514 Hoggan V. Cragie 42 Hicks V. Cochran 289 Hoit V. Underbill 680, 583, 590 V. Johnston 227 Holbrook v. Brooks 467, 510 Hierstand v. Kuns 521 V. Walters 116 Higgins V. McChire 514 Holcombe r. Holcombe 500 V. Watervliet Turnpi ke Co. 641 Holden r. Cope 95, 98 Higginson v. Kelly 274 V. Scanlin 413 Hileman v. Bonslaugh 157 Hollenbeck v. Pixley 171 Hill V. Anderson 543, 583 Holley V. Chamberlain 418 V. Caverly 629 Holliday v. Gamble 605 V. Childress 316 Hollingsworth's Appeal 409 V. Edmonds 149 HoUis V. Francois 286 V. Filkin 317 Holloway v. Headington 284 V. Foley 113 V. Millard 277 V. Goodrich 160 Holman v. Gillette 135 V. Gord 28 Holmes v. Blogg 544, 583, 588 V. Hill 317 V. Field 408, 423 V. Hunt 122 V. Holmes 43, 119, 161, 256, V. Johnston 508 802 V. Mclntire 507 V. McGinty 155 V. Morey 611 V. Onion 626 V. Saunders 143, 148 V. Penney 225, 278 V. Sew aid 100 V. Thorpe 153 V. State 65 Holmes's Apj)eal 481 V. Townsend 126 Holt V. Brien 82, 84, 92 V. West 156 V. Holt 134, 548 Hillegass v. Hillegass 597 V. Sindrey 388 Hilliard v. Richardson 642 V. Ward 535 Hills V. Hobert 355 Holyoke v. Haskins 452 Hillsborougli v. Deering 386 Homer v. Thwing 566 Hillyer v. I3ennett 591 Ilonner v. Morton 123, 125 Hinde's Lessee v. Longwort 1 374 Hood V. Archer 259 Hindiey v. Westmeath 91, 94, 95 V. B rid port 473 Hinds, Estate of 116 V. Hood 299 V. Jones 106 Hooker v. Bancroft 494 Hinely v. Margaritz 590 Hooks V. Lee 267 Hiues V. Mullins 422, 4G2 V. Perkins 605 V. State 445 V. Smith 593 Hinney v. Pl^lips 232 Hooper v. Eyles 468 Hinton v. Hudson 96 V. Haskell 108 Hiram v. Griffin 258 Hoover v. Heim 353, 360 Hitchins v. Eardley 307 Hope r. Carnegie 106 Hite V. Hite 464 V. Hope 292, 412 Hitncr's Appeal 294 Hopkins, Ex parte 333, 337, 342 Hoard v. I'cck 109 V. Carey 112, 214 Hoare v. Harris 462 V. Molliiieux 100 Hoben V. Burlington, &c., R. R.Co. 642 Hopper r. ]\lcWhorter 112 Hobensack v. Hallman 218 Hore V. Becher 126 Hobson ?'. H()i)S()U 155 Horner r. Wheelwright 225 Hocker v. Woods 440, 503 Hornsby v. Lee 145 Hodgden r. Hodgden 197 Hort V. Sorrell 207 Hodges V. Cobb 232 Horton v. Byies 107 V. Hunt 582 V. Horton 502 Hodgkins v. Rockport 318 r. McCoy 481, 487 Hodgkinson v. Fletcher 95,98 V. McMurtry 613 Hodgson V. Macy 377 Horwood V. Hefler 89 V. Scarlett 625 Hoskins r. Miller 112 Hodsden v. Lloyd 251, 253 1 V. Wilson 469 xlvi TABLE OF CASES CITED. Hoste V. Pratt 323, 325 Houghton V. Houghton 375 Houliston V. Smyth 57, 90 House V. House 373 Houston V. Cooper 545 Hovey v. Harmon 413, 424, 432 Howard v. Baillie 635 V. Eraithwaite 636 V. Bryant 121 V. Digby 227, 240, 241 V. Hooker 269 V. Menifee 174, 201 V- Whetstone 91 V. Windham County Sav- ings Bank 285 Howarth, In re 480 Howe V. Colby 285 I'. Newmarch 637 r. Peabody 493 Howell V. Batt 629 V. Cobb 503 V. Maine 115 ■0. Williamson 470 Howes V. Bigelow 167 Howett V. Alexander 596 Hewlett V. Haswell 565 Howman v. Corrie 117 Hoyle V. Stowe 584, 587 Hoyt V. Hellen 399 V. Swar 537 V. White 243 Hoyt's Case 407 Hoxie V. Lincoln 561, 562 Hubbard v. Curamings 588 Hubbs V. Rath 139 Huchting v. Engel 564 Hudson V. Plelmes 469 V. Hills 406 V. Jones 539 ?;. Lutz 378 I'. Worden 605 Huey's Appeal 521 Huflpy. Price 147 V. Walker 471 V. Wright 212 HufTer's Api)eal 500 Huffman r. Rout 605 Huger V. linger 481 Hughes V. Hughes 326 V. Knowlton 388 V. McFie 571 V. Merritt 186 V. Peters 234 V. Ringstaff 498 V. Sciene 399 V. Seller 596 V. Stokes 98 V. Watson 587 V. Wells 224, 261 Hughes's Appeal 471 Huguenin ?-. Baseley 515 Hulme V. Tenant 190, 221, 222 Hultz V. Gibbs 90 Hume V. Hord 227 V. Hume 516 Humphrey v. Bullen 162 V. Douglass 523, 564 V. Richards 189, 220 V. Royce 72 Hunt, Ex parte 366 Hunt V. Booth 201, 202 V. De Blaquiere 78 V. Johnson 285 V. Massey < '576 V. Peake 535 V. Thompson 553 V. White 502 Hunter v. Atkins 513 V. Boucher 92 V. Bryant 263, 266 V. Dashwood 472 V. Duvall 238 V. Hallett 161 V. Lawrence 470 V. Macrae 451 V. Rice 127 Huntoon v. Hazleton 349 Hurd V. Cass 164 Hurdle v. Leath 477 Hussey v. Roundtree 378, 456, 552, 553 Huston V. Cantril 282 V. Seeley 164 Hutchcraft v. Shrout 492 Hutcheson v. Peck 57, 58 Hutchins V. Colby 213, 234 V. Dixon 285 V. Dresser 462 V. Johnson 462, 463 Hutchinson v. Hutchinson 456, 457 V. Underwood 230 V. York, &c., R.R. Co. 642 Hutson V. Townsend 341 Hutton V. Duey 286 Huzzey v. Field 637 Hyatt V.Adams 107,110 Hyde v. Hyde 48 V. Johnson • 576 V. Stone 112, 392 V. Warren 156 V. Woodmansee 34 Hylton V. Hylton 512, 513 Hyman v. Cain 553 I. Thl V. Street R. R. Co. 353 Ihler, Goods of 168 Illidge V. Goodwin 638 Illinois Central R. R. Co. v. Baches 639 V. Downey 641 Illinois, &c., R. R. Co. v. Grable 143 Inge V. Forrester 203 Ingersoll v. Ingersoll 596 Ingham v. Bickerdike 432 V. White 275 TABLE OF CASES CITED. xlvii Inglefield v. Coghlan 190 Jenney V. Gray 144, 216, 231 Inman v. Inman 585, 569 Jennings v. Davis 214, 285 Insole, In re 301 V. Jennings 185 Irvine v. Armistead 185 V. Kee 469 V. Irvine 536, 579, 580, 586 V. Looks 467 Irwin V. Dearman 359, 360 V. Rundall 665 Isaacs V. Taylor 416, 431, 438 Jernegan v. Baxter 134 Ishan V. Gibbons 312 Jervois V. Silk 323 Ivey V. Ingram 598 Jervoise V. Jervoise 173 Izard V. Izard 265 Jeston h ■ Key 274 Izod V. Lamb 189, 199 Jewell I . Jewell 45 I . Porter 288 Jewett, Ex parte ■ 481 J. V. Davis 154 Jewsbury v. Newbold 81, 84, 86 Jackson v. Bridge 621 Jewson V. Moulson 123, 129, 130 V. Burchin 585, 587 Joel V. Morrison 638 V. Carpenter 587, 588 Jodrell V. Jodrell 198, 240 V. Combs 350 Joim V. Bradbury 442 V. De Watts 399 Johnes V. Lockhart 192 V. Gilchrist 153 Johnson V. Avery 487 V. Hankey 453 V. Ballard 366 V. Hill 129 V. Barber 629, 641 V. Hobhouse 197 V. Bennett 120 V. Innes 177 V. Blenkensopp 609 V. Jackson 377, 473 V. Bruner 643 V. Jones 177 V. Carter 472 V. Kirby 104 V. Chandler 602 V. McAliley 201, 204 V. Cummins 230 V. McConnell 139 V. Gallagher 226 V. Peek 374 V. Gibson 370, 371 V. Sears 462 V. Johnson 123 196, 441, 514 V. Suffern 144 V. Kirkwood 295 V. Town 281 V. Lines 553, 655 V. Vanderlieyden 76, 156 V. Lusk 289 V. Winne 36 V. Parcels 185 Jacobs V. Amyatt 191 V. Payne 145 Jacobson v. Williams 130 V. Pye 565, 668 Jacqiiot V. Boiirra 613 V. Rockwell 535 Jaffray v. F retain 536 V. Runyan 214, 234 James v. Taylor 245 V. Silsbee 371 Jamison v. Cosby 492, 503 V. Snow 234 Jaques v. Short 165 V. Spaiglit 116 V. The Methodist Ep isco- V. State 333 pal Church 227 V. Stone 367 Jarman v. Lucas 596 V. Sumner 85 V. Wooloton 244 V. Terry 348 Jarrett v. State 406 , 418, 502 V. Tuteweiler 237 Jefford V. Ringgold 536 V. Vail 232 Jeffrey v. Guy 148 V. Williams 79 Jeffreys v. Vanteswartsworth 453 Johnston v. Coleman 458 Jenison v. Graves 370, 374 V. Johnston 117, 232, 285, Jenkins, In re 122 251, 287 V. Jenkins 536 V. Jones 153 V. Kemis 264 V. Sumner 89, 96, 98 V. Mitchell 377 Johnston's Case 439 V. Tucker 166 Johnstone r. Beattie 407, 408 V. Walter 474 V. Lumb 195 Jenks V. Langdon 183 Joliffe I •. Higgins 462 Jenkyn v. Vaughan 277, 278 Jolly V Rees 82, 83, 86 Jenness v. Emerson 321, 345 , 346, 347 Jones I . ^.tna Ins. Co. 208 V. Robinson 165 V Beverly 506, 611 Jenney v. Alden 371 ! . Billstein 487 xlviii TABLE OF CASES CITED. Jones V. Blanton 492 Kekewich v. Manning 284 V. Brewer 185, 464 472, 560 Kelchner v. Forney 514 V. Brown 160, 260 Kellaway v. Johnson 224 V. Buckley 346 Keller v. Phillips 83, 85 V. Butler 530, 582 i\ Ruis 234 V. Cuthbertson 226 Kelley v. Davis 327 V. Foxall 478 Kellogg V. Robinson 100 V. Hart 637 Kelly V. Drew 214, 248 V. Hicrgins 274 V. Kelly 61 V. Hollopeter 472 V. Small 64 r. Jones 16 286, 474 Kemble v. Kean 610 V. Littledale 628 Kemp V. Cook 543, 570 V. Patterson 143 V. Downham 94 V. Perr_y 446 Kempe v. Pintard 151 V. Phenix Bank 580, 586 Kenan v. Hall 478 V. Pliimmer 151 Kendall v. Lawrence 539 V. Steele 593 V. Miller 467 V. Stockett 318, 325 Kendrick v. Wilkinson 492 V. Tevis 354, 355 Kenly v. Kenly 266 V. Waits 293 Kennaird v. Adams 469 V. Ward 425, 426 Kennard v. Burton 361 Jones's Appeal 66, 264, 383, 440 Kennedy v. Doyle 543 Jordan c. Cummings 238 Kenningham v. M'Laughlin 350 V. Jones 1-51 Kennison's Trusts, In re 325 0. Norton 636 Kenniston v. Leighton 485 V. Wikes 148 Kenny v. Udall 126, 129 130, 517 Jorden r. ^loney 268 Kenrick v. Wood 198 Joyce V. McAvoy 294 Kensington i\ DoUowd 189 Joyner v. Denny 126 Kent V. Burgess 50 Judge of Probate i'. Hinds 413 V. Dunham 185, 378 Judkins v. Walker 561 V. State 46 Judson f. Blanchard 595 Keogh V. Cathcart 222 V. Storer 597 Kerman v. Howard 289 Junction Railroad Co. v. Harris 143 Kerns v. Peeler 154 Justices V. Willis 502 Kerr v. Bell 591 V. Forgue 571, 573 Kessee v. Mayfield 623 K. Kettletas v. Gardner 418, 430, 460 Kevan v. Waller 408, 439 Kane, Matter of 322 323, 324 Kejes V. Keyes 35 Kantrowitz v. Prather 230 Kidney v. Coussmaker 278 Karr v. Karr 441, 475 Kilcrease v. Shelby 560 Kauffelt (-•. Modervvell 347' Kilgore v. Jordan 569, 570 Kavanaugh v. Janesville 108, 110 Killick, Ex parte 189 Kay V. Crook 268 Kimball v. Boston 645 V. Wliittaker 149 V. Fisk 421 424, 485 Kaye v. Crawford 374 V. Keyes 95, 322 Kaye's Case 414, 418 Kimm v. Weippert 227 Keane v. Boycott 354, 534, 535 Kincaid's Trusts, In re 131 Kearney o. Denn 308 King r. Cotton 270 Keating v. Condon 179 V. Gottschalk 214 Keaton v. Davis 328 V. Hodnett 382 V. Scott 232 V. Luffe 307 Kebble, Ex parte 327 V. Mittalberger 230 Kee V. Vasser 207 V. Rother Field Grays 560 Keecli V. Keech 56 V. Seals 466 Keegan v. Smyth 95 Kingman v. Perkins 541 Keeler v. Fassett 350 Kinnard v. Daniel 267 Keen v. Hartman 105 Kinnen v. Maxwell 545, 591 Keeney v. Good 236 Kinner v. Walsh 234 Keister v. Howe 135 Kinney v. Showdy 536 Keitli V. Miles 500 Kinnier v. Kinnier 35, 299 V. Woonibell 282 Kintzinger's Estate 300 TABLE OF CASES CITED. xlix Kippen v. Darley 273 Laing »>. Cunningham 243 Kirby v. Bruns 166 Lamb v. Lady Palk 638 V. Taylor 514 Lamb's Appeal 478 V. Turner 439 Lanibe v. Eames 388 Kirk V. Paulin 190 Lamburn v. Cruden 621 Kirknian, Ex parte 487 Lammoth v. Maulsby 605 Kirkpatrick v. Bauford 213 Lamphir v. Creed 112, 116 V. Lockliart 354 Lancaster, hi re 295 Kitchen v. Bedford 285 V. Dolan 227 V. Lee 185, 545, 546, 591 V. Evors 178 Kittredge v. Betton 514 Lance v. Norman 269 Kleinert v. Ehlers 308 Lane v. Cotton 629, 630 Kline v. Beall 591 V. Ironmonger 81,82 V. Beebe 392, 583 V. McKeen 153 V. Central Pacific R. R. Co. 571 V. Phillips 622 V. Kline 271 Lang V. Pettus 414 V. L'Amoreux 553 Lange v. Werk 610 Kline's Estate 271 Langford i'. Frey 537 Klopfer V. Bromme 360 Langfort v. Tyler 81 Knapp V. Crosby 596 Langham v. Nenny 114 V. Smith 214, 215, 231, 238 Lanoy v. Athol 63, 276, 326 V. Windsor 289 Lansier v. Ross 205 Knight V. Branner 121 Lantz V. Erey 378 V. Knight 59, 196 Lapsley v. Grierson 311 17. Wilcox 356, 359 Larkin v. Mann 596 Knott V. Carpenter 166 Lashbrook v. Patten 361 V. Cotter 418 451, 477 Lassence v. Tierney 265 Knowles v. Hull 248 Latouche v. Latouche 222 Knowlton v. Brade y 474 475, 500 Latourette v. Williams 120 I^ox V. Bushell 79 Laugher v. Pointer 638 V. Flack 540 Laughlin v. Eaton 107 V. Jordan 230 Laurence v. M'Arter 540 V. Picket 205 V. Sinnamon 215 Knye v. Moore 386 387, 388 Lavender v. Blackstone 282 Kolls V. De Leyer 235 Lavie v. Phillips 244 Konigniacher's Appeal 477 Law V. Wilkin 829 Koontz V. Nabb 230 Lavves v. Lumpkin 141 Kowing V. Manley 104 Lawrence v. Bartlett 261 Kraft V. Wickey 444, 445 V. Finch 231 Kraker i'. Byrura 457, 553 V. Kidder 610 Krebs v. O'Grady 100 Lawson v. Lovejoy 579 Kreig v. Wells 361, 572 V. Perry 620 Kreiser's Appeal 185 V. Shotwell 300 Kriger v. Day 301 Lawson's Appeal 377 Kuchenbeiser v. Beckert 598 Leach v. Duvall 271 Kuhn V. Stansfield 282 V. Noyes 153 Kurtz V. Hibner 373 V. Prebster 179 V. Saylor 252, 253 V. Rogers 624 Kyle V. Barnett 478, 511 Leadbitter v. Farrow 628 Kynnaird v. Leslie 49 Leaphart v. Leaphart 65 Leavel v. Bettis 416, 433 L Leavitt v. Peel 228 V. Leavitt 37, 38, 282 Labaree v. Colby 23 Leaycraft v. Hedden 227 Lacey, Ex paric 469 Lebanon v. Griffin 365, 366 Lacon v. Higgins 47 Lecone v. Sheires 394 Lacy V. Osbaldiston 614 Ledlie v. Vrooman 230 V. Williams 412 Lee V. Bennett 253, 257, 258 Ladd V. Hildebrant 152, 231 V. Brown 516 V. Lynn 79 V. Hodges 357 Lady Chester's Case 407 V. Lanahan 75, 217 Lady Teynham v. Lennard 417,418 V. Lee 421, 432 Lady Teynhara's Case 317 V. Morris 230 TABLE OF CASES CITED. Lee's Appeal Leeds v. Vail Lees V. Wliitconib Lefever v. Lefever Lefevre v. Laraway Letevres r. Murdock Lefils V. Sugg Legard r. Hodges V. Johnson Legeyt v. O'Brien Legg V. Goldwire V. Legg Lehman v. Brooklyn Leidig V. Coover's Ex'rs Leigh V. Byron Leighton v. Sheldon Leitensdorfer v. Hempstead Leland v. Whitaker Lemley v. Atwood Lemon v. Hansbarger Lenderman )'. Talley Lenoir v. Binney V. Bristow Leonard v. Leonard V. Townsend Lester v. Garland Lethem v. Hall Letts V. Brooks Levering v. Heighe V. Levering Levett V. Penrice Levinz v. Will Lewellin v. Cobbold Lewin's Trusts, In re Lewis V. Babcock V. Caperton V. Eutsler V. Harris V. Johns V. Littlefield V. Mathews V. Peachey V. Price V. Sawj'er Lewson v. Copeland Libhart v. Wood Lichty V. Hagar Liddlow V. Wilmot Light's Appeal Eighty V. Clouston Lilley v. Elwin Linipus V. London, &c., Co Lindley i-. Cross V. Smith Lindo V. Belisario Lindsell v. Thacker Lingen v. Lingen Linner v. Grouse Linton v. Walker Lipe V. Eisenlerd Lippitt V. Huston Litchfield v. Cadworth Litson V. Brown 410 100 625 430, 433 469 302 649 274 292, 293 30 272 112, 300 571 372 387 65 588 213, 216 508 506 115, 119 202 621 422 238 274 419, 453 346 279 530 83 275 270 133 . 108 282 381 228, 233 231 566 193 605 121 629 473 613 166 90, 95, 98 478 633 607, 613, 619 639 234 153 40 189 310, 313 595 506 372 154 144 Little V. Downing 165 V. Duncan 538, 579 V. AVilletts 231 Little Miami R. R. Co. v. Stevens 645 y. Wetmore 638 Livermore v. Bemis 491 Liverpool Adelphi Loan Associa- tion V. Fairhurst Livesej' v. Harding Livesle}' r. Lasalette Livingston, In re V. Livingston 105 460 231 552, 559 266, 286 Lloyd, In re 383, 384 V. Lloyd 274 r. Mason I'. Petigean V. Pughe Locke V. Smith Lockett V. James Lockhart v. Phillips Lockwood V. Fenton V. Salter V. Stockholm V. Thomas Lockyer v. Savage V. Sinclair Loftris's Case Logan V. Fairlee V. Goodall V. Hall V. Phillips V. Thrift V. Wienholt Long V. Morrison V. Norcom Longley v. Hall Longmeid v. Holliday Longmire v. Pilkington Longstreet v. Tilton London & North- Western R. R. Co. V. M'Michael Loomis V. Cline V. Newhall 321, 330 Lord V. Hough 416, 450 r. Parker 248, 249 V. Poor 371 Lord Cloncurry's Case 50 Lord Montford v. Lord Cadogan 224 Loring i'. AUine 502 V. Bacon 492 V. Thorndike 50 Loud V. Loud 294 Louisville & Nashville R. R. Co. v. Collins 645 Love V. Graham 273 V. IMoyneham 295 V. Robertson 216 V. Watkins 235 Lovelace v. Smith 473 Lovell V. Minot 477 Lover v. Lover 135 Lovett V. Salem, &c., R. R. Co. 572 468 133 50 135 655 185 508 416 71 162 95 274 41 140 419 266 232 275 155 267 110 458 500 108 462 462 543 574 95 1 Low V. Purdy TABLE OF CASES CITED. li Lowe V. Cody 117 Mallory v. Vanderheyden 71, 73 V. Griffith 552 Maltby v. Harwood 605, 620 V. Sinklear 561, 562 Manby v. Scott 67, 81, 82, 91 Lowell v. Boston & Lowell R. R .Co. 638 Manchester v. Smith 371 Lower Augusta v. Salinsgrove 384 Mandabach i^. Mock 246 Lowery v. Craig 127 Mangam v. Brooklyn R. R. Co. 572 Lowry v. Button 343 Mangan v. Attertou 571 V. Drake 591 Manion v. Titsworth 126 V. NaflP 100 Manley v. Field 357 Lowndes v. Lowndes 387 Mann v. Higgins 124 Loyd V. Malone 486, 510 V. McDonald 469 Lufkin V. Mayall 561 Manning v. Baker 496, 500 Luishaber v. Hairman 218 V. Chambers 279 Lumb V. Milnes 191, 196 V. Joiinson 691 Lumley v. Gye 354, 360, 631, 632 Manson v. Felton 438 Lunay v. Vantyne 314 Manvell v. Thomson 366, 359 Lunday v. Thomas 464 Manwaring v. Sands 92 Lush's Trusts, //( ?-e 135 Maples V. Wightman 537 Lushington v. Sewell 194 March v. Bennett 467 Luttrell V. Hazen 641 V. Berrier 481 Lygo V. Newbold 572 Marchioness of Annandale v. Har- Lyman v. Cessford 282 ris 386 Lyn V. Ashton 226 Margetts v. Barringer 190 Lynch v. Lynch 54 Marlett v. Wilson 386 V. Nurdin 572 Marlow v. Pitfeild 556 V. Rotan 496 503 Marsh, Ex parte 263 Lynde v. Budd 584, 589 V. Alford 237 V. McGregor 215 V. Blackmau 366 V. Lyne 190 V. Loader 523 Lyne, Succession of 520 V. Marsh 213, 216 V. Bank of Kentucky 286 V. Rulcsson 622 Lynn v. Bradley 126 V. Tyrrell 259 Lyon V. Boiling 370 371 Marshall v. Blew 176 Lyons v. Blenkin 336 337 V. Fowler 131 V. Martin 638, 640 V. Miller 237 Lytle's Appeal 232 V. Oakes 102 V. Rutton 76,93 M. V. Stewart i;. Wing 644 598 Maas V. Slieffield 252 253 Marston v. Fox 251 Macauley v. Phillips 127 128 V. Norton 258 MacKinley v. McGregor 98 247 Martin, Ex parte 453 Maclay v. Love 218, 230 235 Goods of 255 Maclin v. Smith 458 V. Curd 216 Macready v. Wilcox 399 450 V. Foster 159, 167, 433 Madden v. Gilmer 215 V. Mayo 580 Maddox v. State 605 V. McDonald 445, 446 Madox V. Nowlan 267 V. Mitchell 151 Magee v. Holland 360 V. Payne 357 Magness v. Walker 67 V. Stevens 470 Magniac v. Thompson 264, 282 V. Weynian 693 Magruder v. Darnall 75 443 500 Marvin v. Schilling 467, 485 V. Goodwyn 606 514 Mary Clark's Case 611 V. Peter 471 Mason, Matter of 467 Maguinay v. Saudek 359 V. Fuller 68, 213 Mahoney v. McGee 485 V. Homer 68 Mainwaring v. Leslie 93 V. Hutchins 505 Mainwaring's Settlements 274 V. Mason Maitland v. Backiiouse 516 V. McNeill 126 Major V. Symmes 230 235 237 V. Mitchell 244 Male V. Roberts 521 V. Morgan 75, 118 Mallan v. May 610 V. The Blaireau 633 Mallinson v. Mallinson 341 ,342 V. Wait 484 lii TABLE OF CASES CITED. Mason i'. Wright Massey v. Massey V. Parker I'. Taylor Massie v. Sebastian Massingale v. Tate Master v. Fuller Matherson r. Davis Matliews ;'. Waile Matthewman's Case Matthews v. Brise V. Fiestel V. State Matthewson v. Ferry Mattiiigly ;-■. Nye Mattouks V. Stearns Mattoon v. Cowing Maull V. Vaughn Maunsell o. White Mavvson v. Biane Maxsoni v. Sawyer Maxwell, Ex jiarte May V. Koper Mayburry v. Brien Mayde v. Biggs Mayer v. Calhichat V. Mc'Lnre Mayfield r. Clifton Mayhew v. Baker V. Thayer Maynard r. Williams Mayne v. Baldwin Mayo V. Hutchinson 545, 561 475 191 623 156 416 221 589 421 226 474 102 65 349 282 144, 149 491, 493, 497 179 268 576 424 418 134 185 100 239 590 116 ■ 246 78,89 216 343 230 Mnzouck V. Iowa Northern R. R.Co. 232 McAfee v. Kentucky University McAllister v. Olmstead McBride v. McBride McBurnie, Ex parte McCahan's Appeal McCandless ?•. Engle M'Cartee v. Teller M'Carthy v. Guild McCarthy v. Hinman McCarty v. Carter V. Murray M'Clallan v. Adams McClary i'. Lowell M'Clellaii, Ex parte McClellan v. Kennedy McClendon v. Harlan McClintic v. Ocheltree M'Closkey v. Cyphert McClure v. Evans McClurg V. Terry McClurg's x\ppeal McCluskeyi'. l-'rovident Institution 243 M(}<;;oon V. Smith 564 McCormick v. Holbrook 230 V. McCormick 54 McCormie ii. Leggett 546, 586 McCosker v. Golden 160 M'Cov V. Huffmann 561 M'Crillis v. How 557 55 433 341 264 470 153 530 361 326 688 541 80 350 333 514 491 227 370, 371 876 38 54 285, McCrory v. Foster 120 McCubbin v. Patterson 218, 294 M'CuUochs, In re 432 McCuUough V. Wilson 155 McCutchen v. McGahay 82, 83, 91 McDaniel v. PMward 356 V. Mann 456 V. Whitman 113 McDermott i\ French 295 McDonald, In re 560 V. Meadows 491 V. Montague 562 V. Snelling 658 M'Donald v. Crockett 202 McDonell v. Harding 474 McDow V. Brown 514 McDowell V. Caldwell 458 M'Dowles' Case 560 McElhenny's Appeal 499, 500 McElroy's Case 29 McFaddin v. Grumpier 230 McFaddyn v. Jenkins 284 McFarland v. Conlee 508 McFarlane v. Handle 499 McFerrin v. White 154 McGan v. Marshall 533, 587, 588 McGavock v. Whitfield 230 M'George v. Egan 81 M'Giffin V. Stout 598 M'Gill V. Woodward 588 McGregor v. Sibley 246 McGuire v. Grant 612 McGunigal v. Mong 384, 605 McHenry v. Davies 93, 295 Mclnnes v. More 42 Mclntyre v. Knowlton 231 McKarlin v. Bresslin 243 McKay v. Allen 205, 207 McKee v. Eevnolds 294 McKennan r.' Phillips 201, 202 M'Kenzie v. McLeod 638 McKeown v. Johnson 102 McKinney v. Clarke 38 V. Hamilton 234 McKinnon v. McDonald 247 M' Knight v. Hogg 605 McLean, Succession of 16 V. Longlands 242 McLaren r. Hall 231 McLaughlin v. McLaughlin 185 McLaurie v. Partlow 350 McMahon v. Davidson 642 V. Lewis 83 McManus v. Crickett 362, 640 M'Minn v. Richmond 538, 557 McMullen v. McMuIlen 287 McMurray v. McMurray 596 M'Nair y. Hunt 469 McNeely v. Jamison 446 McNeilage v. HoUoway 118 McQueen v. Fulgham 104 Mead v. Hughes 295 Meader v. Page 100 TABLE OF CASES CITED, liii Meals V. Meals 128 Miller v. Blackburn 113 Means v. lioljinson 619 V. Brown 230 Meara v. Ilolhrook 645 V. Carnall 503 Mears v. Biekford 349 V. Delamater 98 Mel)ane v. Mebane 462 V. Edwards 232 Meiibury i;. Watrous 561 V. Goodwin 266 Med worth v. Pope 387 388 V. Harris 408 Meek v. Kettlewell 284 V. Hine 235 V. Perry 514 V. Miller 301 372 Meeker v. Hurd 562 621 626 V. Newton 230 Melbourn, Ex parte 16 V. Shackleford 147 149 Melley v. Casey 235 V. Sims 545 Mellingen v. Bausmann 122 217 V. State 64 102 Mellish V. Mellish 443 515 V. Stewart 381 Mendes v. Mendes 408 424 425 V. Sweitzer 104 Menifee v. Hamilton 482 V. Talley 185 Menvill's Case 145 V. Wetherby 235 Mercein v. People 292, 340 343 V. W^illiams 138 Mercer v. Jackson 353 V. Williamson 241 V. Whall 615 Miller's Appeal 376 377 Mercliants' Bank i'. Scott 230 Miller's Estate 473 Merchants,' Fire Ins. Co. V. Grant 585 Mills V. Graham 566 Meredith v. Crawford 620 V. Humes 593 Meriwether v. Smith 242 V. Wyman 321, 330 366 Merrells v. Phelps 492 Milner v. Lord Harewood 461 529 Merriam v. Cunning! lara 549, 552, 555, 568 V. Milnes Milwaukee & Miss. E, R . Co V. 106 0. Ilarsen 286 287 Finney 641 V. Wilkins 582 Minard v. Mead 100 Merrick v. Plmnley 232 Miner v. Miner 339 Merrill v. Bullock 218 Minfee v. Ball 443 V. Smith 243 Minier v. IMinier 67 Merritt v. Fleming 386 Minock v. Shortridge 545 V. Lyon 207 Minor v. Betts 488 V. Simpson 473 Miss AVatson's Case 197 V. Williams 574 Mitchel V. Reynolds 610 Merriweather v. Broi ker 138 Mitchell V. Berry 598 Merry v. N-ickalls 644 V. Crassweller 639 Messervey v. Barelli 508 V. Gates 274 Messinger v. Clarke 188, 195 220 V. Holder 258 Metcalfe v. Shaw 83 I'. Holmes 160 Meth. Ep. Church v. Jaques 201, 206, V. Jones 487 227 V. Mitcliell 605 Metier v. Metier 67 I'. Moore 265 Metropolitan Bank v Durant 282 V. Otey 214 Mews V. Mews 242 V. Sawyer 247 Meyer v. Haw worth 74 I'. Treanor 84, 93, 95 Michael v. Alestree 637 V. Union, &c., Ins Co. 349 V. Baker 257 V. Williams 507 V. Morey 264 Mitford V. Mitford 123, 124 138 Middlebury College ;. Chandler 550 Mizen v. Pick 76,94 Middleton v. Hoge 589 Mockey v. Grey 593 Midland R. R. Co. v. Pye 295 Modawell v. Holmes 433 Miles V. Boyden 350, 593 596 Moehring v. Thaver 258 V. Chilton 34 Moffatt V. Moffatt 55 V. Lingernian 589 591 Mohney v. Evans 550 552 V. Williams 71 124 142 Moloney v. Kennedy 194 Milford V. Milford 326 Molton V. Martin 214 V. Peile 274 Moncriof v. Ely 385 Millard v. Hewlett 642 Monell V. Burns 623 Miller, Matter of 129 V. Monell 506 I'. Aris 629 f. Scherrick 374 V. Bingham 207 Money v. Jorden 268 liv TABLE OF CASES CITED. Monroe v. Twistleton 64 Monson v. Williams 86 Montague v. Benedict 79, 80, 84, 93 Montefiore v. Belirens 132 V. Belireno 121 Montgomery v. Clianey 377 V. Henderson 267 V. Montgomery 37, 311 V. Smith 410, 432 V. Sprankle 249 V. Tate 144, 215 V. Tilley 279 Montgomery Bank v. Albany Bank 630 Moniimental, &c., Association v. Herman Moody V. Matthews V. Osgood Moon V. Towers Moore v. Abernethy V. Baker V. Calvert V. Graves V. Hazelton Hood 588, 546 139 215 363 585, 587 502 164 522, 523 514 502 V. Metropolitan K. R. Co. 637 V. Moore 124, 130, 198, 526, 528 189, 219 145 640, 641 295 634 154 491, 492 194 47 498 267 417, 430 Morris V. Richardson V. Sanborne V. Stevenson V. Tickle V. Titman V. Wallis V. Webster V. Whittaker Moorehead v. Orr Moorhouse v. Colvin Morehouse v. Cooke Morrell, In re V. Dickey Morgan v. Anderson V. Bolles V. Dillon V. Elam V. Hughes V. McGhee V. Morgan V. Perry V. Thames Bank V. Thorne Moritz V. Garnhart Morony v. O'Laughlin Morrill v. Aden Morris v. Davies V. Garrison V. Harris V. Low V. Martin V. Miller V. Morris V. Palmer V. Stephenson Morrison v. Holt 444, 445 430 243 429, 433 227 82 48 495, 500 310 112 594 386 67 565, 567, 591 307 462 408 349, 369 92 109 483 87 152 79 Morrison v. Norman Morrison's Case Morrow v. Whitesides Morse v. Royal V. Thompson V. Welton V. Wiieeler Mortara v. Hall Mortimer ;;. Mortimer Mortimore v. Wright Moseley v. Rendell Moses V. Forgartie V. Stevens Mosher v. Mosher Moss V. Pacific R. R. Co. Mosteller's Appeal Motley V. Head V. Motley V. Sawyer Mott V. Comstock Motte V. Alger Motteux V. St Aubin Mount V. Kesterton Mountain v. Fisher Mountfort, Ex parte Mousler v. Harding Moyer's Appeal Muckenburg v. Holler Mudway v. Croft Mulhallen v. Marum Mulhern v. McDavitt Muller V. Bayly Mulvey v. State Mumford v. Gething Mundy v. Earl Howe Munger v. Hess Munn V. Reed Munro v. Munro V. Saunders Munroe v. De Chemant Munson v. Munson V. Washband Murdock v. Murdock Murphree v. Singleton Murray v. Barlee V. Currie V. Elibank V. Mann Murrison v. Seller Musser v. Gardner V. Oliver V. Stewart Mustard v. Wohlford Myatt V. Myatt Myer v. Rives Myers v. Myers V. Pearsoll V. Wade N. Nace V. Boyer Naill V. Maurer 218 445 70 512 259 371 590 554 292 327, 329 181 83 561, 562 185 643 372 505 516 288 94 288 536 153 562 337 67 159 302 29 513 500 287 102 610 325 567 571 309 313 86 412 552 378 135 221, 224 645 129, 133 626, 635 16 66 507, 514 386 538, 584 42 514 322, 324, 325 431 457, 459 274 TABLE OF CASES CITED. Iv Nairn v. Prouse 203 Nance v. Nance 476, 477, 496 Nanney v. Martin 127 Napier v. Effingham 528 Nasli V. Nash 115, 118 V. SpoflFord 156 Nashville, &c., R. R. Co. v. Elliott 561, 562 National Bank v. Sprague Nations v. Cudd Naylor ?,'. Winch Neal V. Gillett Nedby v. Nedby 260 Needham v. Bremner 114, Needles v. Needles Neill V. Neill Neilson ?'. Cook Neimcewicz v. Gahn Nelson v. Eaton V. Goree V. Green t»./Lee V. Searle V. Stocker V. Wyan Nettleton v. State Neufville v. Thompson Neves v. Scott Newbery, In re Newcomen v. Hassard Newcomer's Appeal New Hampshire Ins. Co. v. Noyes 536, 549 Newliouse v. Miller 67 Newlands v. Paynter 113, 189, 220 Newlin v. Freeman 253, 258 Newman v. James 202 Newport v. Cook 323, 324, 327 Newry & Enniskillen R. R. Co. v. Coombe 543 Newsome ?'. Bowyer 255 Newton v. Hatter 108, 110 Newton v. London, Brighton, &c.. 247 619 512 563 286 92 126 491 499, 500 1.55 536 161 414 446 74 569 377 431 243 265, 267 460 220, 221 492 Noble V. Noble V. Withers Nolen's Appeal Nolte V. Libbert Norbury v. Norbury Norcross v. Stuart Norman v. Norman Norris v. Dodge's Adm'r V. Lantz V. Vance North, In re North American Coal Co North Penn. R. R. Co. v. Norton, Ex parte V. Fazan r. Rhodes V. Turrill V. AVarner Norwood V. Stevenson Nowlan v. Ablett Noyes i'. Blakeman Nugent V. Vetzera Nunn V. Hancock Nurse v. Craig 164 67 123 686 476 108 228 830 130 582, 590 317, 4.50 . V. Dyett 228 Mahoney 572, 573 121 92 86 196 109 102 607, 609 228 444 480 95,98 O. Oakes V. Oakes 873 Oakley v. Pound 230 Obermayer r. Greenleaf 264 O'Brien v. Barry 106 V. Ram 73 O'Daily v. Morris 75, 238 Offley V. Clay 75, 112 O'Flaherty v. Union R. R. Co. 571, 572 O'Gara f.'Eisenlohr 168 Ogden V. Prentice 82, 83 Oglander v. Baston 120, 127, 142 Oglesby v. Hall 250 O'Hara v. Shepherd 471, 477, 497 Ohio, &c., R. R. Co. v. Ilammersley 644 R. R. Co. 595 O'Keefe v. Casey 432, 433 Newton v. Roe 73 O'Kill V. Campbell 207 Nichol V Martyn 626, 632 Oldin V. Samborn 515 Nichols V. Allen 885 Oliver v. Houdlet 457, 464, 535 V. O'Neill 144 V. McClennan 563 Nicholson v. Spencer 457 I'. McDuffie 554 V. Wilborn 87 426 654, 593 V. Woodroffe 641 Nicholson's Appeal 430, 431, 470 Olivier, Succession of 366 Nickerson v. Easton 368 O'Neal V. Robinson 235 V. Howard 605 O'Neil's Case 430 Nickson v. Brohan 636 O'Neill V. Cole 270, 275 Nicoll, Matter of 410 Opdyke's Appeal 381 V. Greaves 608 Ord'y. Blackett 451 Nightingale v. Withington 345, 370, Oriental Bank v. Haskins 282 371, 535, 537 Orland's Case 144 Niller v. Johnson 282 Orvis V. Kimball 679 Nimmo c. Walker 622 Osborn v. Allen 884 Nims V. Bigelow 233 r. Gillett 631 Nix i\ Bradley 227 V. Morgan 129, 131 Noble V. Enos 259, 260 Osborne v. Edwards 130, 145, 151 Ivi TABLE OF CASES CITED. Osborne v. Van Horn Osgood V. Breed "»8, Oswald V. Broderick Oswell V. Probert 129, 130, 131, Ottnian v. Moak Outcalt V. Van Winkle Overliolt V. Ellswell Overseers of Alexandria v. Over- seers of Betblebem Overton v. Banister V. Beavers Owen V. Bryant 387, V. Cawley V. Gooch V. Peebles 475, V. White Owens V. Chaplain V. Cowan I'. Dickenson V. Walker Oxford V. Peter Oxnard v. Swanton Oxley V. Tryon Ozard u. Darnford ' 327 377 582 132 584 124 102 346 568 456 388 230 628 500 328 605 486 221 549 638 249 543 5,98 P. Packard r. Arellanes Packer v. Windham Paddock r. Wells Page V. Defries V. Marsh V. Page Paine v. Hunt Palmer v. Davis V. Miller 538, V. Oakley 418, 42i, 473, V. Portsmouth V. Trevor Palmes v. Danby Panand v. Jones Pancoast v. Burnell Parish of St. Andrew v. De Breta Park V. Hopkins ^ ^ Parke i'. Kleeber 78, <9, V. Barron Parker ;;. Baker V. Brooke 189, 197, V. Elder V. Kane V. Lincoln V. Parker V. Simonds 232, V. Way Parkes v. White 198, Parks V. Cushman Parmelee i'. Smith Parnell, Goods of Parsons v. Ely V. Hill V. Parsons V. People 16 140 28 637 605 153 233 238 585 486 645 116 467 212 215 321 102 236 35 536 '226 542 237 416 30 248 306 224 116 349 408 265 536 129 67 Parsons v. Trask Parteriche v. Powlet Parton v. Hervey Partridge v. Stocker Paschail v. Hall v. Thurston Passenger R.R. Co. i-. Stutler V. Young Patchett V. Holgate Patchkin v. Cromack Paterson v. Gandasequi V. Wallace Patnote v. Sanders Pattee v. Harrington Patten v. Rea Patterson v. Flanagan V. Gaines V. High Patton V. Hassington V. Stewart V. Thompson Paul V. Children V. Hummel Paul Neal's Case Paulding's Will Paulet V. Delavel Paulmier v. Erie R. R- Co Payne v. Scott V. Stone Peacock v. Peacock V. Pembroke Peake v. La Baw Pearce v. Olney V. Spierin Pearson v. Darrington I'. McMillan Peaslee v. McLoon Peck V. Braman V. Brummagim V. Hendershott V. Walton Peckhara v. Hadwen Pedley i-. Wellesley Peiffer i: Lytle Peigne v. Snowden Pell V. Cole Pemberton i'. Johnson Pence v. Dozier Pendleton r. Pomeroy Pendrell v. Pendrell Penfold V. Mould Penleaze. Ex pcrte Penn v. Heisey V. Whitehead Pennington v. Fowler Pennsylvania Co. v. Foster Pennsylvania, &c., Co. v. Neel 611 178 83 246 285 138 574 641 306 538 628 644 623 108 639 284 33, 48, 308 162 330 236, 288 484, 511 387 361 242 55 226 643 457 473 620 120, 122 232 325 205 79, 83, 95 502, 507 64 498 16 238 216 185 64 286 279 234 238 360 185 305, 306 226, 284 323 516 232, 246, 247 443 227 285 Pennsylvania R. R. Co. v. Bantom 3o2 V. Keller 3o3 V. Kelly 361 Penrose i^. Curren 566 Pentz V. Simonson 230, 2.->o People V. Board of Education 318 TABLE OF CASES CITED. Ivii People V. Boice 341, 406 PhilUps V. Graves 230 V. Brooks 341 V. Green 539 , 546 584, 586 V. Byron 438, 439 V. Gregg 48 V. Chegaray 340 V. Hassell 184 V. Circuit Judge 488 V. Phillips 487 V. Dean 522 V. Wooster 282 V. Gates 605 Phillipson v. Hayter 78, 81, 82 V. Kearney 409, 411, 413 Phorhe v. Jay 622 V. Kendall 524 Picard v. Hine 221 V. Kling 384, 406 Pickens v. Hill 160 V. Mercein 339, 341, 842, 343, Pickering v. De Rochemont 506 849 V. Pickering 98 V. New York 598 Pickett V. Buckner 185 V. Olmstead 833, 339 Picklor V. State 540 V. Overseers 306 Pidgin V. Cram 96, 327 V. Pillow 605 Pierce, Matter of 400 V. Randolph 524 V. Irish 497, 514 V. Reagle 67 V. Waring 512 V. Slack 32 Pierson v. Smith 126, 216 V. Townsend 524 Pike V. Raker 100 213, 287 V. Turner 350 V Collins 126 V. Wilcox 834, 416 , 421, 449, 451 Pilkington v. Scott 610, 618 V. Winters 60 Pillow V. Bushnell 107 Pepper v. Stone 428, 438, 439 Pim V. Downing 439 Perkins v. Cortrell 144, 216 Pina V. Peck 310 V. Elliott 230 Pingree v. Goodrich 25 I'. Finnegan 430 Pinkston v. McLemore 248 V. Smith 629 Pinney v. Fellows 201 205, 279 f. State 102 Pitcher v. Laycock 539 587, 591 Perlinaw v. Phelps 847 V. Turin Plank Road Co. 574 Perrin v. Wilson 553 Pitt V. Pitt 141, 165 Perry v. Brainard ■ 424 V. Smith 30 V. Hindle 148 Pitts V. Cherry 410 V. Perry 372 Pittsburgh, &c., Passen ger R. R. r. Rieketts 643 Co. V. Donahue 641 V. Simpson, &c., Co 619, 623 Pixler V. Nichols 621, 626 V. Whitehead 387 Place V. Rliem 282 Perryman v. Burgster 595, 597 Planche v. Collnirn 619 Person v. Chase 543, 561 Piatner v. Patehin 72,73 Peru V. French 802 Plimmer v. Sells 100 Peters v. Fleming 548, 549, 555 Plotts V. Rosebury 330 V. Fowler 214, 238 Plowes V. Bossey 306 V. Lord 632 Plumer v. Lord 248 Petersham v. Dana 384 Plummer i-. Wobb 345 853, 354 Peterson v. Laik 587 Poindexter v. Jeffries 134, 282 Petre, Ex parte 826 Pomeroy v. Manhattan, &c.. Ins. Pettingill v. Butterfield 126 Co. 289 Pettus V. Clauson 478 Pond V. Curtiss 462. 471 V. Sutton 475 Ponsford v. Johnson 49 Petty V. Anderson 100, 245 Pool V. Blakie 215, 257 V. Roherts 588, 591 V. Everton 93 Peyton v. Smith 408 V. Gott 343 Pilaris V. Leachman 143 V. Morris 129 Phelps V. Culver 605 Pooley V. Webb 207 V. Phelps 115 Poor ('. Ilazleton 124 V. Wait 630 Pope V. Jackson 483 V. Worcester 551, 555 V. Sale 383 Philbrooks v. McEwen 154, 179 Porch I'. Fries 149, 154, 215, 426 Phillipi V. Commonwealth 386 Porcher v. Daniel 257, 258, 259 Phillips, Ex parte 467, 481 Porter i'. Bank of Rutland 202, 204 V. Allen 806, 308 V. Bleiler 606 V. Davis 457, 500 V. Bobb 93 V. Foxall 625 V. Mount 104 Iviii TABLE OF CASES CITED. Posey V. Posey 526 Poston V. Young 415 Potingcr v. Wightman 313 412 452 Pott V. Clcgg 113 Potter V. Faulkner 644 V. Hiscox 474 502 V. State 492, 493 502 Potts V. Cogdell 267 Poultney v. Glover 372 V. Randall 503 Poulton V. South- Western R. R. Co 639 Powell V. Boon 476 V. Cleaver 337 396 V. Cobb 38 V. Evans 473 V. Felton 151 V. Gott 541 V. Jones 505 V. North 473 V. Powell 55,56 Power V. Lester 275 Powes V. Marshal 106, 113 Prater v. Hoover 234 Prather v McDowell 185 Pratt V. Battels 154 V. Jenner 300 V. McJunkin 493, 502, 513 V. Wright 446, 490 Pray v. Gorhain 349 Prebble v. Boghurst 266 Preble v. Longfellow 457 Prentice v. Decker 349 Prentiss v. Ledyard 607, 615, 623 Prescott V. Brown 112 V. Fisher 69 V. Norris 567 Presley v. Davis 324 Price V. Duggan 595 V. Hewett 568 V. Strange 169 Prichard v. Ames 190 V. Prichard 59 Prickett v. Prickett 372 Pride v. Bubb 293 Priestley v. Fowler 642 Pritchard v. Hitchcock 626 Probate Court v. Hibbard 445 V. Niles 116, 121 V. Strong 490 Proctor V. Sears 577, 581, 584 Prodgers v. Langham 282 Prole V. Soady 300 Proper v. Cobb 248 Proudfoot V. Poile 595 Proudley (;. Fielder 194 Prout V. Roby 218 Prouty V. Edgar 559, 560 570 Pryor v. Hill 132 Pugh, Ex parte 133 225 Pulbrook, In re 337 Pulliani V. PuUiam 205 Pulsford V. Richards 268 Purdew v. Jackson 124, 126, 130, 157 Parsley v. Hayes 485 V. Hays 686 Pusey V. Harper 282 Putnam v. Bicknell 288 V. Putnam 49 V. Ritchie 471 i\ Town 372 Pybus V. Smith 155, 188, 197, 198 Pye, Ex parte 273 Pyke V. Pyke 134, 274 Pyle V. Cravens 640 Q. Queen v. Carnatic R. R. Co. 199 V. Lumley 34 Quidort v. Pergaux 243 Quigley v. Graham 216 Quincy v. Quincy 92 Quinlan v. Quinlan 268 R. R. V. Pucklechurch 607, Rabb u. Aiken 145* V. Griffin 164 Rabe v. Hanna 67 Racouillat v. Raquena 497 Ragan v. Simpson 155 Ragland v. Justices 603 Railroad v. Hanning 645 Railroad Co. '■. Harris 149 Rainsford v. Rainsford 586 Ralston, Ex parte 461 V. Lahee 559 Ramsay v. Ramsay 416, 430, 450 V. Richardson 264 Ramsdale v. Craighill 120 Ramsden v. Smith 274 Rancliffe v. Parkyns 274 Randall v. Lunt 282 V. Sweet 555, 556 Raney v. Rainey 234 Rankin v. Kemp 462 Ransom v. Nichols 160, 236 Ransome v. Burgess 325 Rapalje v. Norsworthy 514 Ratcliff V. Wales 65 Ratcliffe v. Dougherty 216 Rathbun v. Colton 600 Rawlings v. Bell 618 Rawlins v. Rounds 106 V. Vandyke 91, 96 Rawson v. Pennsylvania R. R. Co. 172 Ray, Ex parte 190 V. Adden 79 V. Haines 661 Raybold v. Raybold 243 Raylon v. Tongue 261 Raymond v. Loyl 327, 329, 330, 831 V. Sawyer 462 TABLE OF CASES CITED. lix Raymond v. Minton 605 Rea V. Durkee 90, 93 V. Tucker 64 Read v. Beazley 294 V. Earle 233 V. Drake 416 Reade v. Armstrong 273 V. Livingston 201, 265, 279, 282 Reading v. Mullen 250 Ready v. Bragg 282 V. Hamm 179 Reakert v. Sandford 100 Ream v. Watkins 370, 371 Reciprocity Bank, Matter of 117, 217 Reddie v. Scoolt 359 Redfield v. Buck 282 Redman i'. Chance 421 Reed u. Batchelder 536, 538 V. Bosliears 590 V. Legard 94 V. Moore 90 V. Ryburn 500 V. Williams 360 Rees V. Keith 115, 120, 122 Reese v. Chilton 93 Reeve v Hicks 177 V. Marquis of Conyngham 94 Reeves v. Reeves 34 Regina v. Bleasdale 646 V. Brooks 102 V. Chadwick 28, 33 V. Clark 449 V. Clarke 317, 342 V. Collingwood 385 V. Daniel 631 V. Edwards 333 V. Howes 342 V. Inhabitants of Wendron 77 V. Kelly 60 V. Lord 536, 537, 543 V. Millis 37, 42, 43, 44 V. Kicholas 528 V. Orgill 36 V. Phillips 524 V. Plummer 62 V. Preston 608 V. Ravenstonedale 608 V. Robinson 102 V. Smith 342, 617 V. White 333 ?;. Williams 66 Reid }\ Laing 42 Reinhart v. Miller 275 Renaux v. Teakle 78, 84, 85 Rennie v. Ritchie 187 Resor v. Rcsor 116, 266, 286 Reuncclcer tJ. Scott 215 Revel V. Revel 116 Revett V. Harvey 513, 514 Rex V. Barton 614 V. Bcttesworth 252 V. Bra)Tipton 50 V. Birmingham 46 Rex V. Brazier 527 V. Burton-iipon-Trent 38 V. Coggeshall 608 V. Delarel 337 V. Flintan 77, 92 V. French 113 V. Great Bowden 608 V. Greenhill 337, 339, 342, 449 V. Hodnett 46 V. Hopkins 382 V. Hoseason 638 V. Huggins 646 V. Inhabitants of Sourton 306 V. Inhabitants of Wigston 560 V. Isley 337 V. Killingholme 608 V. Locker 66 V. Luffe 305 V. Martha Hughes, co?-am Thom- son 102 r. MinshuU 38 I'. IMoseley 382 V. Mountsorrel 561 V. Munden 321, 365, 366 V. North wingfield 608 V. Oakley 893, 471 V. Pierson V. Pike V. Reading V. Roach V. Rotherfleld Grays V. Saunders V. Shinfield V. Soper V. Sow V. Standon Massey V. St. Helen's V. Sutton V. Twyning V. White V. Williams V. Wilmington V. Woodhurst V. Worfield Reynard v. Spence Reynolds v. Lansford V. Reynolds V. Sweetser V. Walker Rhea v. Rhcnner Rhett V. Martin Rlioads V. l^hoads Rice V. Ilofiinan V. Lumley I-. Rice V. Thompson Rich V. Cockell Richards, Goods of V. Burden V. Hay ward V. Lewis ?'. Richards Richardson v. Boright 424 527 65 368 367 617 620 382 608 608 608 393 811 528 528 368 608 607 185 285 37 90, 822 477, 496 295 598 598 144 300 47 160 189, 219, 253 261 64 625 269 60, 115 538, 582, 583 Ix TABLE OF CASES CITED. Richardson v. Boynton 490, V. Dagfcett V. Du Bois V. Fonts V. Hittle V. Kimball V. Linney V. Merrill 218, 245, V. Richardson V. Smalhvood V. Stodder Richart v. Ricliart Richmond v. Tibbies Ricker v. Ham Ridgely v. Crandall Rider i'. Hulse 242, Rideout's Trusts, fn re Ridout V. Bristow V. Earl of Plymouth 174, Ridgway v. English V. Hungerford Market Co 614, 615, Riley v. Byrd V. Jameson V. Mallory 543, V. Riley 140, 142, Rimell v. Sampayo Rippon V. Dawding Risdon, Goods of Ritter v. Ritter Rivers v. Durr V. Gregg V. Thayer Rives r. Sneed Roadcap v. Sipe Roach V. Garvan i". Jelks V. Quick Robalina v. Armstrong Robbins v. Cutler V. Eaton V. Mount Roberts, Matter of V. Adams V. Dixwell I'. Place V. Polgrean V. Spicer V. Smith V. Stanton V. Wiggin Robertson v. Cowdry V. Norris V. Robertson V. State Robinson v. Burton V. Cone V. Gee V. Huffman V. Miller V. Nahon V. Robinson V. Weeks 234, 426, 429, 432, 69, 584, 538, 288, 166, 378, 478, 536, 491 118 94 360 153 629 513 246 471 278 214 185 235 281 536 243 306 74 175 372 622 381 349 546 266 636 266 162 238 559 554 267 314 104 449 500 559 384 543 588 564 500 121 194 135 138 191 643 596 587 42 146 294 43 360 572 178 231 185 86 508 543 Robinson v. Wheelwright 199 V. ZoUinger 408, 429 Robison v. Gosnold 92, 93 V. Robison 66 Robson V. Osborn 593 Roby V. Boswell 216 Roche V. Cliaplin 466 V. Hart 478 Rochfort V. Fitzmaurice 272 Roe V. Deming 355 Rogers, In re 295 V. Acaster 126 V. Boyd 215 V. Brightman ^65 V. Dill 481, 487 V. Hinton 261 V. McLean 445 V. Rogers 201 V. Smith 351 V. Steele 562 V. Ward 230, 237 Rohrer v. Morningstar 597 Rooke V. Lord Kensington 273 Roosevelt v. ElUthorp 162 Root V. Stevenson's Adm'r 567 Roper V. Roper 232 Rose V. Sanderson 215 Ross V. Adams 164 V. Cobb 471 V. Gill 471 V. Winners 72 Ross's Trust, In re 198 Rotch V. Miles 99 Roundtree v. Thomas 215 Roundy v. Thatcher 561, 562 Routh V. Howell 474 Routledge r. Carruthers 304 Rowe I'. Chicheste 139 V, Hopwood 577 V. Jackson 133 V. Smith 215, 230 Howley f . Adams 152 V. Rowley 293 V. Unwin 227 Rowney's Case 144 Rover's Appeal 467, 470 Royston v. Royston 157, 457, 498, 500 Ruddock V. Marsh 98 Ruding V. Smith 49, 50 Rumfelt V. Clemens 235, 236 Rumney v. Reyes 86, 322 Rundel v. Keeler 545, 549 Runkle v. Gale 497 Runnells v. Webber 185 Ruscombe v. Hare 155, 178 Rush V. Vought 232, 368 Russ V. George 119 Russel V. Russel 481 Russell V. Brooks 112 V. Fay 484 I'. Irby 639 Ruttinger v. Temple 386 Rvan V, Fowler 643 TABLE OF CASES CITED. Ixi Ryan v. Madden 107 Ryder, In re 329 V. Bickerton 224 V. Hulse 217, 218, 236 V. Robinson 165 V. Wombwell 549 550 Ryland v. Smith 118, 122 Sackett's Estate 400 Sadler v. Robinson 591 Sale V. Crutciifield 306 V. Saunders 144, 145 Salisbury v. Van Hoesen 602 Sallee v. Arnold 113 Salter v. Howard 632 Saltniarsh v. Candia 108 Sahvay v. Salway 134 Sammis v. McLaughlin 249 Sampley v. Watson 231 Sams V. Stockton 549 Sanborn v. Batchelder 257 Sanders v. Rodney 293 Sanderson c. Robinson 273 Sandiland, E.r parte 61 Sands v. Child 629 Sanford i'. Augusta 11# V. Lebanon 321 V. Sanford 289 Sanger r. Sanger 196 Sapp V. Newsora 42 Sargeant v. Fuller 185 Sargent v. Mathewson 354 Sartoris, Goods of 445 Sasseer i'. Walker 503 Satterthwaite v. Emley 265 Saul V. His Creditors 521 Saunders v. Saunders 59 Saunderson i'. Bell 635 V. Marr 540 Savage v. Benham 122 V. Davis 76, 100 V. Dickson 462 V. O'Neii 68, 217 V. Itobertson 388 V. Walthew 626 V. Winchester 234 Savery v. King 375 Saville v. Sweeney 107 Sawyer v. Cutting 100 V. Fernald 232 V. Knowles 506 Scales I'. ]Maude 284 Scammel r. Wilkinson 253, 255 Scarborough v. Watkins 154 Scarnian v. Castell 617 Scarpellini v. Acheson 115, 118 Scawen v. Blunt 114 Schaffer v. Renter 286 Schenk v. Strong 565 Schindel v. Schindel 90 Schlosser's Appeal 75 Schmidt v. Milwaukie, &c., R. R. Co. 571, 572 Schmitheinier v. Eiseman 154, 570, 589 Schneider v. Hosier 216 V. Starke 144 Schoch V. Garrett 378 School Directors v. James 452 School District v. Bragdun 563 Schullhofer v. Metzger 79 Schumpert, Ex parte 340 Schurman v. Marley 68 Schuyler r. Hoyle 116, 120 Schwartz i'. Saunders 234 Scidmore v. Smith 632 Scott V. Buchanan 536, 586 i\ Freeland 511, 516 V. Gamble 135 V. Hi.x 122 V. Mayor of ^lancliester 611 V. Paquet 30 V. Scott 234, 238 V. Slmfeldt 35, 38 V. Spashett 132 V. State V. Watson Scott's Account, In re Scott's Case Scrimshire i'. Scrimshire Seaborne v. Maddy Seaman, Matter of I'. Duryea Seager v. Sligerland Seagrave v. Seagrave Sears v. Terry Seaton v. Benedict Seaver v. Morse Seavey v. Seav^ Sebastian r. Bryan Sedgwick v. Walkins Selby I'. Selby Selden's Ajipeal Sellars v. Kinder Sellen v. Norman Selph V. Howland Semple v. Morrison Senseman's Appeal Serle v. St. Eloy Serres v. Dodd 107 Sessions v. Kell 410 Seward v. Jackson 374 Sexton V. Wheaton 279 Seymour v. Greenwood 637 Shaddock v. Clifton 215 Shafi'ner v. Briggs 480 Sliafher v. State 33 Shallenberger v. Ashworth 151 Shanck v. Northern, &c., R. R. Co. 645 Shanks v. Seanumds 483 Shannon v. Canney 232 Shartzver r. Love 76 Sharp V. Burns 215 28 564 503 441 47 329 494 496 359 274 412, 413, 421 82 623 374 492 65 423 350 360 617, 021 234 540 448, 506 528 V. Cosserat 274, 279 Ixii TABLE OF CASES CITED. Sharp V. Cropsey V. Maxwell V. Wickliffe Sharpe v. Foy 185, Sharrod v. London & North- West- ern R. R. Co. Shattock r. Siiattock Shaw, Succession of V. Attorney-General V. Coble V. Coffin V. Emory V. Gould V. Partridge V. Reed V. Shaw V. Steward V. Thompson Shearman v. A kins V. Angel Sheldon v. Bradley V. New'ton V. Patterson Shelley v. Westbrooke Shelton v. Pendleton V. Springett Shenk v. Mingle Shepard v. Pratt Shepardson v. Rowland Shepherd v. Bevin V. P^vans V. ^L'lckoul Sheppard v. Starke Sherman v. Ballou V. Brewer V. Champlain Trans. Co V. Elder V. Rochester R. B. Co. V. Sherman Sherrington v. Yates Sherry i-. Sansberry Slierwood v. Sherwood V. Smith Shields v. Keys Shipman v. Horton Shipp V. Bowman V. Wheeless Shirley v. Shirley Shirley, Ann, Ex parte Shock V. Shock Shoemaker v. Kunkle ShoUenberger's Appeal Shores v. Carley Short V. Moore Shrewsbury v. Shrewsbury Shropshire v. Burns Sliroyer v. Richmond Shumaker v. Johnson Shuman v. Reigart Shuster v. Perkins Shute V. Dorr Shuttlesworth v. Hughey 378 217 234 264 640 223, 261 445 299 500 666 100 49 143 638 471 140 94 439 388 185 586 185 305, 306 336 79 329 386 281 185 374 462 87 72 506 507 619 249 642 171 118, 124, 126 516 216 377 235, 238 546, 591 227 486 113, 207 220 274 100 602 164 121 165 580 404, 490 156 125 490 346, 369 595 264, 510, Sibbett V. Ainsley Sichel V. Lambert Sidney v. Sidney Sikes V. Johnson V. Smith Siles V. Fleming Sillings V. Bumgardner Silsby V. Bullock Simmons v. Almy V. McEIwain V. Wilmott Simms v. Hervey V. Norris Simonin v. Mallac Simons v. Howard V. Monier Simpson v. Alexander V. Graves Sims V. Renwick V. Rickets V. Spalding Simson v. Jones Singer v. McCormick Singleton v. Love Sinklear v. Emert Sir Edward Turner's Case Siter V. Jordan V. McClanachan Siter's Case Skarf r. Soulby Skelton v. Ordinary Skillman v. Skillman 112, 243 Skinner, Ex parte Skottowe V. Young Slanning v. Style Slattery v. Smiley Slaughter v. Cunningham f. Cupepper Slawson v. Loring Slaymaker v. Bank Sleath V. Wilson Sledge V. Clopton Sleeman v. Wilson Sleigh V. Strider Sleight V. Read Sloan V. State Sloper V. Cottrell Slowcombe v. Glubb Slowman v. Perryclear Smalley v. Anderson Smalman v. Agborow Smart v. Comstock Smiley i'. Smiley Smilie's Estate Smith V. Allen V. Atwood V. Bate V. Bean V. Boquet V. Bowen V. Chappell I'. Chirrell V. Davis 83 265 131, 511, 137, 151, 263, 313, 242, 115, 638, 74, 115, 430, 307 44 274 564 490 266 462 257 462 ,282 617 155 465 47 193 641 598 ,279 445 285 151 529 613 516 555 140 124 154 125 278 467 282 337 314 286 430 543 185 285 117 639 204 388 310 217 646 194 269 208 167 148 243 215 125 181 126 432 462 16 675 263 264 79 TABLE OF CASES CITED. Ixiii Smith V Derr V. Dibrell V. Evans V. Floyd V. Henry V. Hewett V. Kane V. Kelly V. Knovrlton V. Low V. Moore V. Oliphant V. Osborne V. Perry V. Philbrick V. Sackett V. Silence V. Smith 185, 347, 376, V. Starr V. Thompson V. Webster V. Woodworth V. Young Smith's Appeal Smodt V. Lecatt Smout V. Ilberry Smyth V. State Snediker v. Everingham 346 Snell V. Elam Snelson v. Corbet Snider v. Ridgeway Snodgrass' Appeal Snook V. Sutton Snover v. Blair Snovvden r. Lindsley Snowhill V. Snowhill Snyder v. Snvder V. Webb Soady v. TurnbuU Somers v. Pumphrey Somerville v. Somerviile Somes V. Skinner Soule V. Bonney SouUier i'. Kern Soutliall V. Clark Southard v. Plummer Southerland v. Southerland Southern v. How Soutlnvick v. Southwick Soutlnvorth c. Packard Spain V. Arnott Spalding v. Brent Sparhawk v. Allen V. Buel V. Buell's Adm'r ?.'. Sparhawk's Ex' Sparkes r. Bell Spauldiug V. Day Spaun V. Collins V. Jennings Spear v. Cummings V. Spear 313 474 691 596 214 214 129 581 371 684 267 556 274 154 502 585 295 377, 476, 477, 517 207 249, 619 641 49 653 457 301 180, 628 46 , 349, 3G9 514 174, 175 75 473 471 89 122 446 216 263 106 154 312 462 36 577 514 217, 283 266 637 54 109 612, 622 614 469 519 493 r 324 73, 223 218 417 207 355 478 Spear v. Ward 228 Speight I'. Kniglit 421, 431 V. Oliviera 359 Spence's Case 411, 415 Spencer v. Carr 539 V. Earl of Chesterfield 427, 428 V. Lewis 144 V. Spencer 269, 270 t'. Storrs 100 V. Tisue 100 Spier's Appeal 295 Spinning u. Blackburn 234 Spirett V. Willows 133 Spotswood V. Barrow 613, 615 Sprague v. Waldo 88 Spratt V. Spratt 341 Spring V. Woodworth 456, 457 S[)ringer v. Berry 235, 238 Sproule V. Botts 595 Square v. Dean 226 Squib V. Wyn 162 Squier v. HydlifF 561 Squire v. Whipple 605 St. George v. St. Margaret 311 V. Wake 269, 270 St. John V. St. John 292 St. Nicholas v. St. Bodolph 605 Stables, In re 325 Stacker v. Whitlock 235 Stackpoie v. Beaumont 617 Staley v. Barhite 107 Stall V. Macalester 486 Stammers !'. Macomb 83 Standetord v. Devol 115 Stanley v. Stanton 67 Stanley's Appeal 474 Stansbury i'. Bertrow 370 Stanton v. Bell 614 V. Hall 125, 131 V. Kirsch 214 V. Willson 822, 328, 545 Stanwood v. Stanwood 117 Stapleton v. Croft 67 Starbird i'. Moore 696 Stark V. Gamble 477, 514 Starke v. Harrison 145 Starkey v. Starkey 54 Starkie, Ex parte 459 Starr t\ Peck 310 V. Wright 559 Starrett v. Jameson 498, 500 V. Wynn 112 State V. Baird 339 V. Banks 340 i\ Barrett 343 V. Beatty 386 V. Bennett 65 V. Bierce 360 V. Brady 28 V. Brown 67 V. Clark 457, 483, 619 V. Cleaves 102 V. Clottu 350 Ixiv TABLE OF CASES CITED. State V. Cook 467 V. Dillon 52-1 V. Dole 46 V. Dyer 65 V. Foy 496, 499 V. Gibson 28 V. Grace 498 V. Hairston 28 V. Handy 524 V. Harris 29 V. Hays 172, 174 V. Herman 308 V. Hooper 28 V. Hughes 503 V. Hulick 215 V. Hyde 421, 454 V. Jolly 64 V. King 840 V. Learnard 523," 524 V. Libbey 343 V. Ludwick 66 V. Mabrey 61 V. McKown 482 V. Mooney 66 V. Murray 508 V. Paine 840 V. Parkerson 102 r. Paul's Ex'r 503 V. Plaisted 538, 582, 584 V. Potter 102 V. Rhodes 59 V. Richardson 340, 842 V. Robertson 126 V. Scott 384, 343 V. Shumpert 308 V. Smith 340, 844 V. Strange 496, 502 V. Straw 67 V. Steele 483 V. Stewart 494 V. Taylor 368 V. Thorn 491 V. Tunnell 497 V. Walker 630 V. Whittier 527 V. Williams 102 V. Wilson 67 State Bank v. Hinton 185 Stead V. Clay 194 V. Nelson 222 Steadman v. Wilbur 286, 287 Stearns v. Weathers 217 Steckel's Appeal 381 Steed V. Cragh 123, 142 Steedman v. Poole 198 Steel V. Steel 201 202, 371, 373 Steele v. Thacher 354 Steen v. State 67 Steffey v. Steffey 153 Stehman v. Huber 145 Stein V. Bowman 64 Steinberger v. Potter 274 Steinman v. Ewing 236 Steinmetz v. Halthin Stem's Appeal Stephens, Succession of V. Hume V. James Stephenson, Goods of f. Hall V. State V. Stephenson V. Westfall Sterling v. Adams V. Potts Stern v. Freeman Sterry v. Arden Stevens v. Armstrong V. Bagwell V. Owen V. Parish V. Savage V. Smith V. Story Stevenson v. Belknap V. Bruce V. Gray V. Hardy Stevenson's Appeal Stewart, In re V. Ball V. Harvard College V. Menzies V. Munchandler V. Stewart Stiffe V. Everitt Stigall V. Turner Stikeman v. Dawson Stiles V. Granville V. Stiles Still V. Hall Stilley V. Folger Stillman v. Ashdown V. Young Stillwell V. Miles Stimson v. White Stinson v. Prescott Stith V. Patterson Stock V. McAvoy Stocken v. Stocken Stocker v. Brockelbank Stockett V. Bird Stockton V. Wooley Stoddard v. Treadwell Stokes V. Brown V. Cofley I'. Hatcher V. McKibbin Stone V. Carr V. Codman V. Dennis 17. Dennis on V. Dorrett V. McNair V. Stone i 138 475 445 164 419, 446, 453 159, 442 355 524 595 519 570 181 579, 590 282 638 252 185 235 517 185 90, 93 358 462 48,49 79 496 135 214 644 39,42 29 162 126 340 568 370 286 621 263 265 441 502 246, 247 87, 180 295 376 825 618, 619 160 171 621 579 289 560 215 77 645 557 561 408, 430 79 74, 365, 366 TABLE OF CASES CITED. Ixv Stone V. Western Transportation Co. 609 Stoner v. Commonwealth 122 Stoolios V. Jenkins 570 Stopford V. Lord Canterbury 324 Storey v. Asliton 639 Storke v. Storke 460 Story V. Johnson 584 V. Marshall 282 V. Pery 553 Stoutenburg v. Lybrand 302 Stovall V. Johnson 346, 349 Strain v. Wright 591 Strangeways v. Robinson 383 Strathmore v. Bowes Stratton's Case Strawn v. Strawn Strickland v. Bartlett Stringfellow v. Mariot Stripiin v. Ware Strode v. Magowan V. Strode Stroebe v. Fehl Strohl V. Levan Strong V. Beroujon V. Birchard V. Moe V. Smith Stroop V. Swarts Strother v. Law Strouse v. Drennan Stuart V. Baker V. Lord Kirkwall Stubb V. Dixon Stumps V. Keiley Stupj) V. Holmes Sturdevant v. Norris Sturgis V. Champneys V. Corp Sturtevant v. Starin Stutely i». Harrison Sudderth v. McCombs Suggitt's Trusts, In re Sullivan v. Blackwell V. McGowen V. Sullivan Sullivan's Case Sumner v. Conant V. Sebec Sutherland v. GofF Sutphen v. Fowler Sutton V. Chetwynd V. HufTman V. Warren Swain v. Fidelity Ins. Co V. Tyler Swan V, Dent V. Wiswall Swartwout v. Oaks Swartz V. Hazlctt Swasey v. Vanderheyden Sweeney v. Damron V. Smith 270, 271 462 171 154 627 334 308 84 149 361 463 413 458, 483 116 102 155 486 591 221 320 595 559, 598 186 128, 131 219 93 420 476 133 513 170 38, 64 417 154 369 462 487 264 356, 357, 358 28, 49 598 329 462, 506 154 405, 477 372 557 285 232 Sweet V. Sweet 430 Sweetwater Co. v. Adney 617 Swift V. Bennett 555, 556 V. Kelly 38,48 Swindall v. Swindall 477 Sykes v. Dixon 618, 632 Sym's Case 140 Symes v. Lee 227 Syrames v. Drew 185 T. T. V. D. 32 T. V. M. 32 Taber v. Packwood 258 Taff V. Hosmer 420 Taft V. Sergeant 580 Taggart v. Boldin 120 Talbot V. Dennis 120 V. Earl of Shrewsbury 317, 453 V. Marshfield 245 Tallmadge v. Grannis 143 Tally V. Thompson 216 Tanham v. Nicholson 375 Tapley v. Tapley 153 Tarbell, Matter of 560 V. Tarbell 263, 274 Tarr v. Williams 227 Tarrant v. Webb 643 Tate V. Pene 308 V. Tate 590 Tatterson v. Suffolk Man. Co. 607 Taunton v. Plymouth 370 Tawney v. Crowther 268 V. Ward 274 Taylor v. Brewer 620 V. Croker 535 V. Green 100, 105 V. Jeter 312 V. Kilgore 462 V. Phillips 481 V. Pugh 270 V. Shelton 84, 230 V. Staples 374 V. Stone 202 V. Taylor 514 Teal V. Sevier 314 Tebbets i'. Hapgood 82 Tebbs V. Carpenter 473 Tefft V. Tefft 34 Teller v. Bishop 213, 282 Temple v. Hawley 530 V. Williams 208 Tenbrook v. M'Colra 436 Tennant v. Stoney 202 Tenney v. Evans 464, 473 Terry v. Belcher 64 V. Dayton 377 V. Hopkins 270 V. Hutchinson 358 V. Tuttle 487 Terry's Appeal 180 Ixvi TABLE OF CASES CITED. Thacher v. Dinsmore 462 V. Phinney 143 Thatcher v. Umans 288 Thayer v. Gould 151 V. White 329 Thing V. Libbey 558, 581 Thoenberger v. Zook 154 Thomas, In re 416, 419 V. Bennett 462 V. Burrus 429 r. Cliicago 121 V. T>e Baum 289 V, Dike 561, 562 593 V. Hargrave 66 V. Thomas 79 ,215 V. Williams 270,490, 562, 615, 621 V. Wood 151 Thomasson v. Boyd 579 Thompson v. American, &c., Ins. Co. 289 V. Boardman 472 V. Brown 481 V. Dorsey 330 V. Hamilton 543 V. Harvey 95 V. Ketcham 521 V. Lay 581 V. McKusick 202 V. Murray 208 V. Ross 356, 357 V. Thompson 79 Thoms V. Thorns 186 Thomson v. Davenport 628 V. Lee County 123 Thome r. Dillingham 107 Thornton v. McGrath 485 V. Thornton 186 Thorpe V. Eyre 127 Thrall v. Wright 552 Thrasher v. Tuttle 100 Throgmorton r. Davis 107 Thrupp V. Fielder 581 Thrustout V. Coppin 139 Thurlow V. Gilniore 576 Thurston v. Holbrook's Estate 422 Tibbs I'. Alien 559 V. Brown 107 Tidd V. Lister 125, 131, 157 Tifft V. Tifft 362, 564 Tillinghast v. Holbrook 546 Tillman v. Shackleton 245, 246 V. Tillman 150 Tillotson t'. M'Crillis 371 Tillotsons, In re 487 Tilton 1-. Russell 552, 553 Timbers v. Katz 117 Timmins v. Lacy 308 Timmons v. Timmons 593 Tipping V. Tipping 172, 175 Tipton V. Tipton 591 Tisdale v. Risk 185 Tllexan v. Wilson 173, 174 Tobey v. Smith Tobin V. Addison V. Crawford ?;. Dixon Todd V. Lee V. Kerrich V. Stokes Toler V. Slater Tomkins v. Tomkins Tompkins v. Tompkins Tone V. Sumners Torrey v. Torrey Torrington v. Norwich Totten's Appeal Tourville v. Pierson Towle V. Swasey Towne v. Wiley Townsend v. Bumham V. Cox V. Downer V. Kendall V. Maynard V. Tallant Townsley v. Chapin Tracy v. Keith Train v. Bayer Trapnall v. State Bank Trappes v. Meredith Trask v. Stone Tremain's Case 75, 104 462 635 129 230, 216 609 94 148 327, 328, 329 322 109 289 343 462 153 171 565, 566 328 596 559 444, 451 282 441 235 75 109 543 261 595 318, 460 Tremont v. Mount Desert 372 Trenton Banking Co. v. Woodruff 202 Treviband v. Lawrence 73 Trevor v. Trevor 272 Triggs V. Triggs 73 Trimmer v. Heagy 154 Tripner v. Abrahams 287 Tritt V. Colwell 114, 117, 120 Trotman v. Dunn 613 Troutbeck v. Boughey 193 Trueblood v. Trueblood 540 Trueman v. Loder 635 Trull V. Eastman 378 Truss V. Old 438, 462, 472 Tryon v. Sutton 118 Tubb V. Harrison 320, 378 Tubbs V. Gatewood 153 Tucker v. Andrews 269 V. Inman 252, 253 V. Magee 605 V. Mckee 457 V. Moreland 543, 585, 587 Tudor V. Samyne 140 Tugman v. Hopkins 193, 629 Tuswell V. Scott 387 Tuilett V. Armstrong 137, 187, 188, 195, 198, 199, 225, 227 Tullis V. Fridley 285 Tune V. Cooper 113 Tunks V. Grover 212 Tupper V. Caldwell 551 V. Fuller 289 TurberviUe v. Stampe 647 TABLE OF CASES CITED. Ixvii Turberville v. Whitehouse 553 Turner, In re 418 V. Collins 375 V. Cook G4 V. Crane 115 V. Mason 613 I'. Mevers 29 V. Robinson 614, 622 V. Rookes 87, 95 V. Turner 69, 327 V. Vaughan 386 Turnley v. Hooper 278 Turpin v. Turpin 534, 536, 543 Turton v. Turton 122 Turtle V. Fowler 126 V. Muncy 112 Tuttle V. Hoag 249 V. Holland 85 Twisden v. Wise 118 Tyler v. Lake 189, 191, 192 V. Tyler 522 Tyrrell v. Hope 190, 191 Tyrrell's Case 242 Tyrson v. Mattair 216 Tyson v. Sanderson 477, 493 u. U. V. J. 31 Uhl V. Commonwealth 102 Uhrig V. Horstman 245, 248 Ulp V. Campbell 185 Underbill v. Dennis 414, 417 V. Morgan 285 Underwood v. Brockman 464 Unger v. Price 282 United States v. Bainbridge 349, 350, 533, 534, 560 V. Metz 369 United States Bank v. Ennis 282 Unity and Banking Association, 7/i re 568 Updike V. Ten Broeck 372 Urban v. Grimes 685 Vaden v. Hance 377 Van Aernam v. Van Aernara 308 Vanartsdalen v. Vanartsdalen 400 Vance v. Smith 282 Vanderbilt v. Richmond Turnpike Co. 641 Vanderheyden v. Mallory 205, 228, 229 V. Vanderheyden 600 Vanderveer v. Alston 121 Van Deusen v. Brower 597 Vandevoort v. Gould 214 Vandevort's Appeal 579 Van Donge v. Van Donge 374 Van Dorn v. Young 346, 605 Van Duzer v. Van Duzer Vane v. Vane Van Epps v. Van Deusen 124, 129, Van Horn v. Freeman Van Home, Matter of V. Everson Vankirk v. Skillman Van Metre v. Wolf Van Note v. Downey Van Pelt v. Corwine Vansittart v. Vansittart 293, Van Valkenburg v. Watson 327, Van Winkle v. Schoonmaker Vanzant v. Davies Varick v. Edwards Varney v. Young 368, Vasse I". Smith Vastie v. Underwood 155, 179, Vaughan v. Buck V. Parr V. Vanderstegen 582, 220, 222, Velde V. Levering Verner, Ex parte Vernon v. Marsh 201, Verry v. Watkins Vidal V. Commajere 312, Villard v. Chovin Villareal v. Mellish 334, Vincent v. Parker Voorhees v. Presbyterian Church, &c. Voorhies v. Voorhies 585, Vossel V. Cole 356, 359, Voullaire v. VouUaire Vreeland v. Vreeland 213, 517 386 517 356 614 228 232 238 216 561 343 331 263 377 378 371 566 228 132 585 221, 223 455 274 206 360 314 467 394 144 288 587 360 417 214 W. W. V. H. 32 Wade, Succession of 16, 64 V. Cantrell 285 V. Lobdell 497, 614 V. Thayer 637 Wadhaus v. Am. Home Missionary Society 258 Wagener v. Bill 102 Wagner v. Ellis 253 WagstafTy. Smith 190 Wahl V. Braun 295 Wailing v. Toll 553, 697 Wainwriglit v. Hardisty 225 V. Straw 627 Wait V. Wait 300 Waite V. North-Eastern R. R. Co. 672 Waithman v. Wakefield 78 Wakefield v. Gibbon 278 V. Mackay 36 V. Phelps 269 Wakeman v. Sherman 581 Waldo V. Goodsell 110, 215 Waldron, Case of 340 Ixviii TABLE OF CASES CITED. Wales V. Cofl5n V. Newbould Walke V. Moody Walker v. Browne V. Burrowes V. Chambers V. Coover V. Crowder r. Davis V. Ellis V. Gilman V. Howard V. Hunter V. Laighton V. Reamy V. Simpson V. South-Eastern ■ v. Stringfellow V. Thomas V. Walker 114 Walker's Case Wall V. Rogers V. Tonilinson V. Williamson Wallace v. Holmes V. Lewis V. McCullough V. Morse V. Talliaferro Waller v. Armistead V. Campbell WaUingsford v. Allen Wallis V. Campbell V. Day Walsh V. Powers V. Wason Walter, Ex parte V. Walter Walton V. Erwin V. Green Waples V. Hastings Ward V. Amory V. Dulaney V. Evans V. Roper V. Shallet V. Thompson Warde v. Warde Warden v. Jones Wardlaw v. Gray Wardle v. Claxton Wardwell v. Wardwell Ware v. Brush V. Cartledge V. Coleman V. Gardner V. Polhill Warfield v. Bobo Waring, In re V. Darnall Warner v. Crouch V. Erie R. R. Co. V. Heiden 289 232, 286, 287 487 456 278 605 75, 236 459 566 588 238 16 635 83, 96, 322 234 79, 93 R. R. Co. 641 294 528 121, 160, 378 149 189 118, 122 48 474 586 265 567 116 513 503 202, 281, 288 418 610 585 133 609 216 600 66 540 134 29 636 340, 448 282 162 61, 336, 338 265 514 192 400, 407 585 574 412 279 467, 481 16 529 475 154 643 79 Warner v. Warren 231 V. Wilson 421 Warren, Ex parte 404 V. Haley 201, 202 203 V. Jen ni son 165 Warrender v. Warrender 49 293 Warwick v. Bruce 576 V. Cooper 535 V. Hawkins 191 Washband v. Washband 540 Washburn v. Hale 112 V. Nashville, &c. R. R. Co. 644 V. Sproat 166 Wass V. Bucknam 164 Water Co. v. Ware 612 645 Waterman v. Wright 498 Waters v. Brogden 636 V. Ebral 467 V. Tazewell 271 Watkins, Ex parte 410 444 V. Abrahams 238 V. Peck 472 V. State 441 442 V. Thornton 164 Watson V. Broaddus 218 V. Cross 556 V. Hensel 655 V. Marshall 134 V. Robertson 150 V. Stone 476 V. Threlkeld 86 V. Thurber 228 V. Warnock 418 420 Watt V. Watt 160 Watts V. Ball 164 V. Steele 324 Waugh V. Waddell 224 Waul V. Kirkman 16, 74 Wayland v. Elkins 638 Weaver v. Jones 640 591 Webb V. Cole 611 633 V. England 605 619 V. Sadler 263 Webb's Appeal 125 Webster v. Conley 472 V. Hildreth 166 231 V. McGinnis 99 Weed V. Beebe 586 V. Ellis 463 V. Panama R. R. Co. 641 Weeks v. Holmes 349, 364 V. Leighton 371, 561 V. Merrow 331 Weems v. Bryan 144 Weger v. Penn. R. R. Co. 642 Weisbrod v. Chicago, &c., R. R.Co. 233 Weiser v. Lowenthal 83 Weisger v. Graham 635 Welborn v. Rogers 539 Welch V. Burris 456, 459 V. Welch 161, 548 Welchman v. Sturgis 622 TABLE OF CASES CITED. Ixix Wellborn v. "Weaver 106 Weller v. Baker 143 Wellesley v. Duke of Beaufort 320, 322, 326, 335, 397 V. Wellesley 318, 335, 336, 337 Wells V. Thormaa 231 V. Tvler 115 V. Wells 285, 51U Wells's Estate, In re 387 Wendell's Case 424 Wennall v. Adney 617 Wentworth v. Remick 289 West V. Errissey 273 V. Forsythe 430, 434 V. Gregg 551 V. Howard 266 V Penny 543, 580 V. Ward 186 V. West 258, 261 Westbrook v. Comstock 510 West Cambridge v. Lexington 301 Westervelt v. Gregg 217 Westgate v. Munroe 237 Westmeath v. Westmeath 293 Weston V. Stewart 463 Weymouth v. Chicago, &c., R. R. Co. 238 Whaley v. Whaley 184 Wharton v. Mackenzie 549, 552 V. Wright 100 Whatman v. Pearson 639 Wheatley v. Calhoun 185 Wheaton v. East 539, 586 V. Phillips 249 Wheeler v. Bowen 116 V. Caryl 282 V. Hotchkiss 300 V. Moore 116 Wheelwright v. Greer 386 Wheldale v. Partridge 481 Whichcote v. Lyle's Ex'rs 531 Whipple V. Dow 325, 373 Wliistler v. Newman 224 Whitaker v. Whitaker 161, 162 Whitaker's Case 426 Whitcomb v. Barre 108, 110 White V. Bayley 615 V. Callinan 232 V. Campbell 360 V. Dance 171 V. Flora 684 V. Graves 185 y. Henry 349,371 V. Herrick 530 r. Hildreth 166,231 V. Mchnett 230 V. Nesbit 476 V. Oeland . 244 V. Palmer 121, 469, 474, 475, 511 V. Pomeroy 414 V. Ross 308 V. Story 280 White V. Wager 258, 259, 288 White's Appeal 233 Whitfield, Ex parte 417 V. Hales 335 V. Lord Le Despencer 630 Wiiithead v. Mallory 185 Whiting V. Dewey 472 V. Earle 347, 368 V. Stevens 154 Whitley v. Murray 622 Whitman v. Delano 102 Wliitmarsh v. Robertson 137 Whitmore v. Whitcomb 605 Whitney v. Beckwith 243 V. Dutch 533, 540, 545, 580 V. Whitney 430, 497 Whittingham's Case 530 Whittlesey v. Fuller 289 Whitworth v. Carter 76 Whywall v. Champion 544 Wicklifie v. Dawson 235 Wieman v. Anderson 245, 246 Wier V. Still 37 Wiggins V. Blount 121 V. Keizer 885 Wightman v. Wightman 28 Wigmore v. Jay 645 Wilcox V. Roath 581 Wilder v. Aldrich 285 V. Ember ' 595 Wildman v. Wildraan 115, 118 Wiles V. Wiles 129, 130 Wiley V. Gray 282 Wilhelm i'. Hardman 553, 561 AVilie V. Brooks 591 Wilkes V. Rogers 327 Wilkinson v. Charles worth 115 V. Cheatham 234 V. Gibson 300 V. Parry 521 V. Wilkinson 231, 387 V. Wright 236 Willard v. Eastham 237 I'. Fairbanks 462 V. Pinard 626 V. Stone 535 William & Mary College v. Powell 282 Williams v. Amory 145 V. Avery 218 V. Baldwin 66 V. Barnes 372 V. Brown 540 V. Carle 160, 269 V. Chambers 021 V. Clough 643 V. Coward 76 V. Cranstoun 630 V. Duncan 487 V. Finch 605 V. Harrison 493 V. Heirs 626 V. Hutchinson 359, 360, 378 V. Kent 73 Ixx TABLE OF CASES CITED. Williams v. Mabee 588 V. Maull 286 !-'. McGaliay 93 V. McGrade 214 f. Monroe 79 V. Moor 541 V. Morgan 144 V. Morton 480,491.493 V. Norris 588 V. Gates 49 V. Powell 516 r. Prince 93 V. State 36, 40, 524 r. Wiggand 487 Williams' Case 168, 340, 481 Williamson v. Codrington 387 V. Parisian 34 V. Williams 31 Willis V. Caclenhead 217 V. Childe 618 V. Fox 471, 496 V. Roberts 163 r. Snelling 113 V. Twombly 546, 583 Williston V. White 505 Wills V. Savers 191 Wills' Appeal 471, 474 Willson V. Smyth 94, 95, 98 Wilson V. Bailer 218 V. Brown 295 V. Ford 79 V. Goit 107 V. Hill 154 V. Kohlheim 374 V. Loomis 249 V. McLaughlin 630 V. ^lerry 642, 646 V. Peverly 638 V. Tumman 635 V. Wilson 292, 441 Wilson's Estate, In re 274 Wilson's Trusts 49 Wilt V. Vickars 353, 361 Wilthaus I'. Ludicus 245, 247 Wilton V. Hill 225 Wimberley v. Jones 584 Winans v. Peebles 288 Winch V. James 282 Windsor i'. McAtee 430 Wing V. Taylor 27 Winn V. Sprague 371 Winslow V. Crocker 112 V. Winslow 462 Winslowe v. Tighe 139 Winsmore v. Greenbank 353 Winstell v. Kehl 148 Winston v. Newcomen 320 Winter v. Walter 214 Wise V. Wilson 613, 614 Wiser v. Lockwood 31 I'. Blachly 490 Wishard v. Medaris 343 Withers v. Hickman 493 Withers v. Weaver V. Sparrow Witman's Appeal Witter V. Witter Witty V. Marshall Wodell V. Coggeshall 344 Wolf V. Van Metre Wolfe V. Howes Wollaston v. Tribe Wolton V. Hele Womack v. Austin V. Womack Wood V. Adams V. Briant V. Cobb V. Corcoran V. Downes t'. Gale V. Genet V. Gills V. O'Kelly V. Warden V. Washburn Woodbeck v. Havens Woodbury v. Hammond Woodcock V. Reed Woodin V. Burford Woodman v. Chapman V. Neal Woodmeston v. Walker Woodruff V. Logan Woodruffe v. Cox Woods V. Mather V. Simmons Woodward, Ex parte V. Barnes V. Camp V. Dowse V. Seaver V. Wilson Woodward's Appeal Woodworth v. Spring AVoolscombe, Ex parte Wooster v. Hunts Lj^man Worcester v. Eaton V. Marchant Word V. Vance Worrall v. Jacob Worrell's Appeal Wortli V. York Wortman v. Price Worts V. Cubitt Wray v. Cox V. West V. Wray Wren v. Gayden V. Kirton Wright V. Arnold V. Brown ^ V. Donnell 378 V. Fearis 170 V. Germain 577, 586 V. Haskell 624 274 228 514 467 317 , 354, 370, 371 155, 228, 232 623 264 148, 156, 178 514 591 46 273 645 371 613 455 208 330 79 285 493 243 497, 503 248 635 70, 71 233 187 660 185 487 800 338 83, 85 260 186 235 234 468 444 436 Iron Co. 185 587 321, 354, 378 567 293 475, 476, 516 214 232 387 94 605 94 441 474 516 235, 605 TABLE OF CASES CITED. Ixxi Wright V. Hicks 308 V. Kerr 102 V. Leonard 105, 569 V. Maltlen & Melrose R. R. Co. 571 V. Naylor 450 V. Rutter 123 V. Sadler 288, 289 V. Steele 582 V. Vanderplank 375 V. Wilcox 639 r340 641 V. Wright 286 406 AVych V. Packington 514 Wyckoff 17. Boggs 46 Wylly V. Collins 227 230 Wyman v. Adams 558 V. Fox 185 V. Hooper 512 Wyngert r. Norton 620 Wynn v. Benbury 470 508 Yale I'. Dederer Yard v. EUard 229, 230, 232, 234 126 Yates V. Lyon 537 r. Squires 638 Yeager's Appeal 496 Yeatman v. Yeatman 54 Yerger v. Jones 510 Young V. Estes 184 V. Fowler 521 V. GraflP 228 V. Lorain 428 V. McKee 584 V. Paul 76 V. Smith 274 V. Tarbell 472 V. Young 431 Younge v. Younge 593 Yourse v. Norcross 154 Yundt V. Hartrunft 108, 109 Zerfing v. Mourer Zouch V. Parsons Zulkee v. Wing 360 532, 538, 539, 540, 546, 563 626 DOMESTIC RELATIONS. [1] *THE DOMESTIC HELATIONS. *3 PAKT I. INTRODUCTORY CHAPTER. The law of tlie domestic relations is the law of the house- hold or family, as distinguished from that of individuals in the external concerns of life. Five leading topics are embraced under this head : First, husband and wife. Second, parent and child. Third, guardian and ward. Fourth, infancy. Fifth, master and servant. These will be successively con- sidered in the present treatise. Our general rule of classification is borrowed from Kent.^ But other writers on the domestic relations have analyzed their subject differently. Blackstone omits infancy as a topic distinct from parent and child, and hence makes but four divisions.^ The same is true of Reeve.^ Such a method of treatment answered the purpose of these writers sufficiently ; but since their day the topic of guardian and ward has grown into importance, giving occasion to the discussion of many principles which apply as well to parent and child, for which reason it is found better to draw off from both what is peculiar to neither, and make the new heading of infancy. Bingham, on the other hand, wrote a treatise in which the only divi- sions observed were those of infancy and coverture* This plan would be found defective for a work like the present ; for, in the first place, the subject of master and servant must be ignored * altogether ; and, secondly, that of guar- * 4 dian and ward cannot receive the distinctive treatment 1 2 Kent Com. Lee. 26-32. 2 i Bl. Com. Lee. 14-17. 3 Reeve's Dom. Rel. * Bing. Inf. & Gov. [3] * 4 INTRODUCTORY. it deserves. Besides, the very juxtaposition of two such words as "infancy" and "coverture" suggests a similitude neither flattering to woman, nor in accordance with the present law of husband and wife; as will fully aj)pear hereafter. Fraser, who wrote for readers of the civil, or rather the Scotch law, while otherwise classifying like Blackstone, adds the relation of master and apprentice to that of master and servant,^ in which respect his example is not to be imitated by common- law writers. Upon the whole, therefore, the rule of Kent seems to us the preferable one, as being concise, comprehen- sive, and well adapted to the present state of English and American law. It is curious to notice that all of these writers — and there are none else of standard authority who profess to occupy the whole subject — plunge at once into the law of their leading topics with nothing by way of general introduction ; nothing to indicate to the reader whither they propose leading him. Not one has attempted to draw the chart which shall deter- mine his legal bearings. Nor is a definition of the term " domestic relations " to be found in the books above specified. Indeed were it not for the title-page of Reeve's work, and a few casual passages in Kent's Commentaries, where the same words occur, one might ask how the expression " domestic rela- tions " crept into general use among lawyers. Blackstone uses the terms " private economical relations," and " relations in private life ; " words which of themselves would seem to give a much wider scope to our subject.^ But Blackstone, at all times, manifests a strong predilection for independent anal- ysis, with special reference moreover to the arrangement of his course of lectures; and in this particular instance the con- text as well as the classification seems to show that " domestic relations " was the topic in his mind. Fraser's complete *5 title is * "personal and domestic relations." Notwith- standing all this it is certain that " domestic relations " is now the well-sanctioned title of that law which embraces 1 Eras. Dom. Rel. (Scotch). 2 vols. 2 1 Bl. Com. Lee. 14. The writer had just finished discussing at length the rights and duties of persons as standing in the public relations of magistrates and people ; and the word "private " marks the desired contrast. [4] INTRODUCTORY. * 5 the topics specified by us at the outset ; as those who exam- ine the digests of reported cases, and the codes of our leading States, can testify. To legal precision in this respect. Reeve certainly contributed not a little by the choice of a suitable title for his volume, so long the standard text-book for Eng- lish and American students. Starting then with a definition simple, natural, and well adapted to the materials in hand, we next ask what are the proper limitations of our subject ; what should a text-book on the English and American law of the domestic relations com- prise. As to three of our topics, — husband and wife, parent and child, and infancy, — the question is easily answered. Their very names convey a distinct significance even to the mind of the unprofessional reader. Except it be in the mean- ing of the word " infancy," Avhich the law appHes to all per- sons not arrived at majority, but popular usage restricts to the period of helplessness, all intelligent persons agree in the general use of the terms we have employed. And so strong are the moral obligations which attend marriage and the training of offspring, so intimately blended with the welfare and happiness of mankind are the ties of wife and child, that scarcely any one grows up without some knowledge of the general principles of law applicable to these topics, and par- ticularly of such of the rights and duties as concern the person rather than the property. For positive law but enforces the mandates of the law of nature, and develops rather than cre- ates a system. Yet even here it should be observed by the professional reader, that the term "husband and wife " is acquiring at law a more limited and technical sense than formerly. The idea of marriage involves both the entrance to the relation and the relation itself ; and aldn to marriage celebration is the disso- lution of marriage by divorce, or what we may term the legal exit to the relation. Hence marriage and divorce con- stitute an important * topic by themselves ; and we find * 6 treatises which profess to deal with these alone. The rights and duties which grow out of the marriage relation, on the other hand, still remain for separate discussion ; the con- sequence of the celebration ; the effect of marriage upon the [5] ♦ 6 INTRODUCTORY. property of eacli ; the personal status of the parties ; in short, what new legal responsibilities are assumed and what legal privileges are gained by the two persons who have once voluntarily united as husband and wife. It is to this latter subdivision rather than the former that the title of husband and wife seems at the present day to apply. Reeve devotes but a brief chapter to marriage and divorce. Kent separates the subdivisions completely, appljdng the title husband and wife as above. Yet Blackstone, writing before either, had devoted two-thirds of his lecture on husband and wife to the treatment of marriage and divorce alone, and very briefly dis- posed of the rights and disabilities of the marriage union under the same general heading. The many and rapid changes to which the entire law of husband and wife has been latterly subjected ; the growth of divorce legislation on the one hand, and of property legislation for married women on the other, fully justifies a subdivision so important. We shall subordinate, then, the topic of marriage and divorce to that of the marriage status, following in this respect the modern legal usage ; at the same time noting that if some special term could be coined to distinguish the subdivision husband and wife from that general division which bears the same name, our analysis would be more exact. As to guardian and ward, the limitations of our treatise are not so easily marked out. In respect of the domestic relations, the guardian is a sort of temporary parent, created by the law, to supply to young children the place of a natural protector. But the term " guardian " is used rather indiscrimi- nately in these days with reference to all who need protection at the law. Thus we have guardians of insane persons ; guardians of spendthrifts ; and even guardians of the * 7 poor. Blackstone * treats of these last guardians under the head of public relations ; and certainly they do not fall within the clear scope of private or domestic relations. Yet the legal princijDles apjDlicable to one class of guardians frequently extend as weU to aU others ; and we shall hardly expect in these pages to trace with distinctness that shadowy line which separates the temporary parent from the town officer ; nor would the consulting lawyer expect us to do so. [6] INTRODUCTORY. * 7 Again, a guardian's duties are chiefly with respect to prop- erty ; and herein they so nearly resemble those of testamentary trustees that one frequently finds himself gliding unconsciously from the law of the family into the law of trusts. With the last topic of the domestic relations — that of master and servant — the rule of classification becomes even more uncertain. If servants connected with the household w^ere alone to be considered in a treatise upon the domestic relations, the modern cases would be simple and few ; but no writer has presumed to hmit himself to such narrow bounds. In former centuries, this relation had a marked significance. In these days, we dislike to call any man master. The recent abolition of slavery in the United States has wellnigh removed all traces of an institution Imown to the ancient Roman empire ; elsewhere recognized as the common' barbarian ac- companiment of barbarian triumphs ; and in spirit, if not in the letter, cnce fastened upon the common law, while the feudal system lasted. As one of the domestic relations, this topic of master and servant is of little present importance in England or America'; although it has doubtless an existence. In its analogies, however, or as a relation suh modo, master and servant has features which the courts constantly regard. Apprentices are, without much violation of principle, included under this head ; they are generally bound out during minority and brought up in families. Clerks are not so readily con- fined within the circle of domestic relations as formerly ; and the same is to be said of factors, bailiffs, and stewards. The employes * of a corporation are frequently designated * 8 as servants ; so are laborers generally. But it cannot be denied that master and servant is rather a repulsive title, and fast losing favor in this republican country ; that as one of the purely domestic relations it rarely attracts attention ; and that in sounding its legal depths, one often loses sight of his landmarks, and finds himself drifting out into the more general subject of principal and agent. Whether we consult the facts of history or the inspu^ations of human reason, the family may be justly pronounced the earliest of all social institutions. Man, in a state of nature [7] * 8 INTRODUCTORY. and alone, was subject to no civil restrictions. He was inde- pendent of all laws, except those of God. But when man united with woman, both were brought under certain re- straints for their mutual well-being. The propagation of offspring alforded the only means whereby society could hope to grow into a permanent and compact system. Hence the sexual cravings of nature were speedily brought under whole- some regulations ; as otherwise the human race must have perished in the cradle. Natural law, or the teachings of a Divine Providence, supplied these regulations. Families preceded nations. These families at first lived under the paternal government of the person who was their patriarch or chief. But as they increased, they likewise divided ; their interests became conflicting, and hostilities arose. Hence when men cahie afterwards to unite for their common de- fence, they composed a national body, and agreed to be governed by the will of him or those on whom they had con- ferred authority. Thus did government originate. And government, for its legitimate purposes, placed restrictions upon the governed ; which restrictions "thenceforth were to apply to individuals in both their family and social relations.^ But the law of the domestic relations is nevertheless older than that of civil society. In fact, nations themselves are often regarded as so many families ; and the very name * 9 which is * placed at the head of this work, the legislator constantly applies to the public concerns of his own country as contrasted with those of foreign governments. The supremacy of the law of family should not be forgotten. We come under the dominion of this law at the very moment of birth ; we thus continue for a certain period, whether we will or no. Long after infancy has ceased the general obli- gations of parent and child may continue ; for these last through life. Again we subject ourselves by marriage to a law of family ; this time to find our responsibilities still further enlarged. And although the voluntary act of two parties brings them within the law, they cannot voluntarily retreat when so minded. To an unusual extent, therefore, is the law 1 See Burlamaqui Nat. Law, ch. iv. §§ 6, 9. [8] INTRODUCTORY. ♦ 9 of family above, and independent of, the individual. Society provides the home ; public policy fashions the system ; and it remains for each one of us to place himself under rules which are, and must be, arbitrary. So is the law of family universal in its adaptation. It deals directly with the individual. Its provisions are for man and woman ; not for corporations or business firms. The ties of wife and child are for all classes and conditions ; neitlier rank, wealth, nor social influence weighs heavily in the scales. To every one public law assigns a home or domicile ; and this domicile determines not only the status, capacities, and rights of the person, but also his title to personal property. There is the pohtical domicile, which limits the exercise of political rights. There is the forensic domicile, upon which is founded the jurisdiction of the courts. There is the civil domicile, which is acquired by residence and continuance in a certain place. The place of birth determines the domicile in the first instance ; and one continues until another is properly chosen. The domicile of the wife follows that of the husband ; the domicile of the infant may be changed by the parent.^ Thus does the law of domicile conform to the law of nature. * The most interesting and important of the domestic * 10 relations is that of husband and wife. The law of England and America, on this topic, is now undergoing a remarkable change ; and so unsettled are its principles at the present time, that the writer has felt constrained to depart somewhat from the usual plan of law treatises, adopting what might be termed a consecutive or historical arrangement of his materials ; since otherwise the subject Avould furnish to the reader's mind httle else than a series of unreconciled con- tradictions. To show clearly why the later cases conflict with the earlier, wiU at least aid the future legislator and jurist in their efforts to place tlie law of husband and wife upon a firm and just basis ; and meanwhile afford to the practising lawyer all the assistance which he can reasonably expect. This confused state of the law of husband and wife results 1 See 1 Burge Col. & For. Laws, 32, 33. [9] * 10 INTRODUCTORY. from a contest still going on between two opposing schemes, for adjusting the property rights of the married parties. The one is the common-law scheme ; the other that of the civil law. The former is at the basis of our jurisprudence, English and American. The latter has had a powerful influence in modern times, moulding the doctrines of the equity tribunals and shaping recent legislation. Let us examine these schemes separately. The common-law scheme makes unity in the marriage rela- tion its cardinal point. But to secure this unity the law starts with the assumption that the wife's legal existence becomes suspended or extinguished during the marriage state ; it sacrifices her property interests, and places her almost absolutely within her husband's keeping, so far as her civil rights are concerned. Her fortunes pass by marriage into her husband's hands, for temporary or permanent enjoyment, as the case may be ; she cannot earn for herself, nor, in general, contract, sue, or be sued in her own right; and this because she is not in legal contemplation a person. The husband loses little or nothing of his own independence by marriage ; * 11 but in order * to distribute the matrimonial burdens with some approach to equality, the law compels him to pay debts on his wife's account, which he never in fact contracted, not only where she is held to be his agent by legal implication, but whenever it happens that she has brought him by marriage outstanding debts without the corresponding means of paying them. Husband and wife take certain inter- ests in one another's lands, such as curtesy and dower, which become consummate upon survivorship. In general, their prop- erty rights are summarily adjusted by the law with reference rather to precision than principle. On the whole, however, the advantages are with the husband ; and he is permitted to lord it over the wife with a somewhat despotic sway : as the old title of this subject — haron and feme — plainly indicates. Yet marriage stood well at the common law, and the Anglo- Saxon home has long been proverbial for peace and purity. This is partly because of the liberal tendencies of the race, that love of justice and personal independence which always [10] INTRODUCTORY. * 11 characterized it, and the steadfast disposition of the courts both to administer the unwritten law impartially, and to extend and adapt its provisions to the ever-changing wants of society. Even in feudal times woman was the object of rev- erent esteem, if not of idolatry; her weakness made men all the more zealous to cherish and defend her ; and elevated to the pedestal of honor, the wife stood, perhaps, as securely as she ever can upon the prosaic ground of legal equality. The civil-law scheme pays little regard to the theoretic unity of a married pair. It looks rather to the personal inde- pendence of both husband and wife. Each is to be protected in the enjoyment of property rights. In the most polished ages of Roman jurisprudence, we find, therefore, that husband and wife were regarded as distinct persons, with separate rights, and capable of holding distinct and separate estates. The wife was comparatively free from all civil disabilities. She was alone responsible for her own debts ; she was com- petent to sue and * be sued on her own contracts ; .nor * 12 could the husband subject her or her property to any liability for his debts or engagements. ^ Whether in setting at naught that identity of interests which is essential to domestic happiness, such a scheme is fatally defective, need not here be discussed. Certain it is, however, that the policy of the Roman empire in respect of the marriage institution furnishes by no means an example of marked success, whether we regard its effect upon either husband or wife. Wide- spread incestuous intercourse, licentiousness most loathsome and unnatural, followed in the wake of marital independence ; and as the interests of husband and wife began to diverge, the bonds of family affection became weakened. When Rome sank into utter dissolution, woman possessed a large share of cultivation and personal freedom ; yet she had touched the lowest depths of social degradation. The more minute details of the common-law scheme of husband and wife belong to the main portion of this volume, and need not here be anticipated. Not so, ho'wever, with the » See 1 Burge Col. &. For. Laws, 202, 263. [11] * 12 INTRODUCTORY. civil-law scheme ; and we proceed to elaborate it somewhat further. In the earlier period of Roman law the marital power of the husband was as absolute as t\\Q ijatria potestas. But before the time of the Emperor Justinian it had assumed the aspect already noticed ; in which it is to be distinguished from all other codes. The commiinio honorum, which is to be found in so many modern systems of jurisprudence, might have been part of the Roman law, but it had long before the compilation of the Digest fallen into disuse. The peculiarities of the civil law in this respect may, perhaps, be referred to the disuse into which formal rites of marriage had fallen. Formal marriage gave to husband and wife a community of interest in each other's property. But marriage per usum, or by cohabitation as man and wife, which became universally prevalent in later times, did not alter the status of the female : she still remained subject to her father's power. Hence * 13 * parties united in a marriage jyer usum acquired no general interest in one another's property-, but only an incidental interest in certain parts of it. The wife brought her dos ; the husband his anti-dos ; in all other property each retained the rights of owners unaffected by their relation of husband and wife. The dos and anti-dos were somewhat in the nature of mutual gifts in consideration of marriage. Every species of property which might be subsequently acquired as Avell as that owned at the time of marriage, could be the subject of dotal gift. The father, or other paternal ancestor of the bride, was bound to furnish the dos, and the husband could compel them afterwards, if they failed to do so ; the amount or value being regulated according to the means of the ancestor and the dignity of the husband. This pecuniary consideration appears to have influenced the later marriages to a very considerable extent. And while the hus- band had no concern with the wife's extra-dotal property, — since this she could manage and alienate free from all control or interference, — over her dotal property he acquired a dominion which was determinable on the dissolution of the marriao-e, unles's he had become the purchaser at an estimated value. As incidental to this dominion he had the usufruct to himself, he might sue his wife or any one else who obstructed [12] INTRODUCTORY. * 13 his free enjoyment, and he could alienate the personal prop- erty at pleasure. But he could not charge the real estate unless a purchaser; and upon his death the wife's dotal property belonged to her, or if she had not been emancipated, to her father ; and to secure its restitution after the dissolu- tion of marriage, the wife had a tacit lien upon her husband's property. Of the anti-dos, or donatio projjter nuptias, not so much is known ; but this appears to have generally corre- sponded with the dos; it was restored by the wife upon the dissolution of marriage ; and was regarded as her usufructu- ary property in like manner. It was not necessarily of the same value or amount with the wife's dos. Over his general property the husband retained the sole and absolute power of alienation, and *his wife had no interest in it, * 1-1 nor could she interfere with his right of management.^ But the civil law allowed agreements to be made by which these rights might be regulated and varied at pleasure. And by their stipulations the married parties might so enlarge their respective interests as to provide for rights to the survivor.^ These agreements were not unlike the antenuptial settlements so well known to modern equity courts. The communio honorum, or community system, occupies an intermediate position between the civil and common-law schemes. The communio honorum may have been part of the Roman law at an earlier period of its history, but it had ceased to exist long before the compilation of the Digest ; though parties might by their nuptial agreement adopt it.^ This con- stitutes so prominent a feature of the codes of France, Spain, and other countries of modern Europe, whence it has likewise found its way to Louisiana, Florida, Texas, Cahfornia, and other adjacent States, once subject to French and Spanish dominion, that it deserves a passing notice. The relation of husband and wife is regarded by these codes as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of debts. This partnership or community applies to all property acquired » 1 Surge Col. & For. Laws, 202 ; ib. 263 et seq. 2 lb. 273. ^ lb. 203. [13] * 14 INTRODUCTORY. during marriage ; and it is the well-settled rule that the debts of the partnership have priority of claim to satisfaction out of the community estate. Sometimes the community is uni- versal, comprising not only property acquired during cover- ture, but all which belonged to the husband and wife before or at their marriage.^ It is evident, therefore, that the provisions of such codes may differ widely in different States or countries. The principle which distinguishes the com- munity from both the civil and common-law schemes is, however, clear ; namely, that husband and wife should have no property apart from one another. This law * 15 embraces profits, * income, earnings, and all property which, from its nature and the interest of the owner, is the subject of his uncontrolled and absolute alienation; but certain gifts made between husband and wife in contemplation of marriage are of course properly excluded.^ Whether antenuptial debts are to be paid from the common property, as well as debts contracted while the relation of husband and wife continues, would seem to depend upon the extent of the eommunio bonoriwi, as including property brought by each as capital stock to the marriage, or only such property as they acquire afterwards.^ The codes of modern Europe recognize no general capacity of the wife to contract, sue and be sued, as at the later civil law. On the contrary, the husband becomes by his marriage the curator of his wife. He has therefore the sole administration and management of her property and that of the community ; and she is entirely excluded in every case, in which her acts cannot be referred to an authority, express or implied, from her husband.* Hence, too, all debts and charges are incurred by the hus- band. The community ceases on the termination of marriage by mutual separation or the death of either spouse.^ And the various codes provide for the rights of the survivor on the legal dissolution of the community by death. 1 1 Burge Col. & For. Laws, 277 et seg. 2 lb. 281, 282. By the French law only the personal estate entered into the community; but the Spanish law included both real and personal estate. Child- ress V. Cutter, 16 Mis. 24. 3 lb. 294. * lb. 296, 301. 5 ib. 303. 305. INTRODUCTORY. * 15 The reader may readily trace the influence of the commu- nity system upon the jurisprudence of Louisiana and the other States to which we have referred, by examining their judicial reports. The civil code of Louisiana, as amended and promul- gated in 1824, pronounced that the partnership or community of acquets or gains arising during coverture should exist in every marriage where there was no stipulation to the contrary. This was a legal consequence of marriage under the Spanish *law.i The statutes of Texas, Florida, ]\Iis- *16 souri, California, and other States, are characterized by similar features. But all of these laws have been modified by settlers bringing with them the principles of the common law. So the doctrines of separate estate, revived in modern jurisprudence, are introduced into the legislation of these, as other American States.^ The American community doctrine, as we may term it, is that all property purchased or acquired during marriage, by either husband or wife, or both, shall be deemed to belong pri7na facie to the community, and be held liable for the com- munity debts accordingly. The husband, being the head of the family, has the right to administer or control this prop- ert}- ; and hence not only may he sell and dispose of any por- tion of it during marriage, but it is rendered primarily liable for all debts contracted by him during marriage, and for debts for necessaries contracted by the wife during the same period. He may enjoy the income of the property likewise. Upon the dissolution of marriage by death, this community property goes, after payment of all community debts, as generally regulated, to the survivor, if the deceased leaves no descend- ant ; otherwise, one-half to the survivor and one-half to the descendants. But it will be perceived that in these codes community, as an incident to marriage property, is only a presumption, which may be overcome in any instance by proof that the property was acquired as the separate estate of either the 1 Art. 2312, 2369, 2370. 2 Kent Com. 183 n. 2 Texas Digest, Paschal, " Marital Rights ; " Cal. Civil Code, " Husband & Wife ; " Parker's Cal. Dig. " Husband & Wife ; " Walker v. Howard, 3-1 Tex. 478 ; Caulk v. Picou, 23 La. Ann. 277. And see Forbes t;. Moore, 32 Tex. 195. [15] * 16 INTRODUCTORY. husband or wife. This community rule, moreover, as it is evi- dent, does not apply to the property which either husband or wife brought into the marriage ; such property, by the codes, being distinctly kept to each spouse apart, as his or her separate property. And, besides, it is now usually provided by legis- lation that property acquired during marriage, " by gift, be- quest, devise, or descent," with the rents, issues, and profits thereof, shall be separate, not common property. The ten- dency, then, in our States, where the law of community still exists — though all have not proceeded in legislation to the same length — is to limit rather than extend its apphcation. The wife has a tacit mortgage for her separate property, so far as the law may have placed it in her husband's control ; also upon the community property from the time it went into his hands ; so that, notwithstanding his conveyance without her consent and to her injury, during the marriage, she has an interest, and not a mere hope or expectancy left, which interest becomes absolute and enforceable at his death, she surviving him. In this respect our codes follow the Spanish rather than the French law. And for the wife's further pro- tection and benefit, judicial intervention is sometimes per- mitted, not only to secure her support from the funds in her husband's control, while marriage continues, but for a separa- tion of the common property altogether, where her interests are exposed to great hazard by his mismanagement. The tendency of the courts and legislatures is to make community property liable for community debts alone, and separate prop- erty of the wife for her separate debts alone. jNlore than this, agreements for a separation of property between husband and wife are now greatly favored ; and gifts for the wife's benefit, made after as well as before the mar- riage ; so long, at least, as they do not tend to impair con- jugal rights of the husband pertaining to wife and children, nor seek to alter the legal orders of descent. A husband may now make a grant or gift of community or of his separate property to his wife, without the intervention of trustees ; or they may stipulate that there shall be no community between them ; and their matrimonial regulations are hberally upheld, if not contrar}'- to good morals, it being always understood [16] INTRODUCTORY. * 16 that they conform to such formalities as the code may have imposed upon them.^ On the whole, there is in the doctrine of community much that is fair and reasonable ; but in the practical workings of this system it is found rather complicated and perplexing, and hence unsatisfactory ; while in no part of the United States can it be said to exist at this day in full force, since husband and wife are left pretty free to contract for the separate enjoyment of property, and so exclude the legal pre- sumption of community altogether.^ "WTiat are familiarly known as the " married women's acts," the product of American legislation during the last quarter of a century, aim to secure to the wife the independent control of her own property, and the right to contract, sue, and be sued, without her husband, under reasonable limitations. These acts, therefore, substitute in a great measure the civil for the common law. Three propositions may be laid down at this transition period. First. That the common law, in denying to the wife the rights of ownership in property acquired by gift, purchase, bequest, or otherwise, did her injustice, and that a radical change became necessary. This is shown, not only in the legislation of our States, buf by the fact that the equity tribunals have gradually moulded the unwritten law of England so as to secure like results. Second. That the courts of England and the American States (with scarcely an important exception) agree in regarding the wife's separate property rights as contrary to rule : in other words, that they require her in each case to rebut the presumption that what- ever she acquires vests in the husband, and to establish a distinct ownership. Tliird. That as to rights of the person, or what are sometimes * contrasted with civil as * 17 1 Murrison v. Seiler, 22 La. Ann. 327 ; Smith v. Boquet, 27 Tex. 507 ; Texas, Louisiana, and California Codes, supra; Succession of Wade, 21 La. Ann. 343; Peck V. Brummagim, 31 Cal. 440; Warfield v. Bobo, 21 La. Ann. 466. 2 See Packard v. Arellanes, 17 Cal. 525 ; Waul v. Kirknian, 25 Miss. 609 ; Succession of McLean, 12 La. Ann. 222; Jones v. Jones, 15 Tex. 143; Ex parte Melbourn, L. R. 6 Ch. 64 ; 1 Burge Col. & For. Laws, 277 et seq., where the law of community as it was about half a century ago is fully set forth ; and the leirned note to 2 Kent Com. 183. 2 . [ IT ] * 17 INTRODUCTORY. moral lii^lits, no essential changes are wanted ; the property- rights of married women coming alone within the scope of a sweeping reform. In this respect the peculiarities of the civil code are regarded ; for as to the conjugal duties of adherence, obedience, protection, maintenance and support, power of correction, and the like, it furnished little that the common law has not either recognized from the earliest times or else gradually improved upon.^ The danger to be apprehended from all legislation of this sort is that it will weaken the ties of marriage, by forcing both sexes into an unnatural antagonism ; teaching them to be independent of one another, and to earn their own living apart ; whereas God's law points to family and the mutual intercourse of man and woman as among the strongest safe- guards of human happiness. Where one pursues the objects of personal ambition, the intellect must soon predominate over the affections. Wandering out of her sphere of action, woman soon finds herself the object of affront instead of admiration ; for, whatever triumphs Art may achieve. Nature to the last remains the stronger. Trials we aU have ; we may make them subservient to high purposes, yet they remain to gall us to the last ; and if it be wrong to murmur at the impediments of physical infirmity, ft is supreme folly to chafe and fret and struggle continually against the fetters of sex. In England, the rights of married women have been gradually enlarged, and that, too, by judicial construction rather than statute , the law still holding fast to the stability of the marriage relation. With us, each Gordian knot is cut in twain by legislative enactment, and the courts have only to look on in bewilder- ment. When husband and wife can once be made to under- stand their respective bounds, they will doubtless respect them ; but so long as their rights remain in confusion and perplexity, collisions must constantly occur, and domes- * 18 tic peace remain in constant jeopardy. * Add to this loose divorce laws, loosely administered, and can it be said that the marriage relation is encouraged and fostered bv the State ? That it should be admits of no question. 1 See as to civil law, 1 Burge Col. & For. Laws, 202. [18] INTRODUCTORY. * 18 Our legislation regarding the rights of married women should then be harmonized and simplified as soon as practica- ble. This is not easy with so many independent States, each carving out its own career. Our difficulty is aggravated from the fact that the married women's acts had no common oriain : there was no model found to work from, English or Ameri- can, and the results were necessarily discordant. Yet should public sentiment once set in the right direction, much might be accomplished at no distant day. If, too, the married women's codes of this country are to serve as a guide to other nations, they should bear the impress of a clear and well-detined purpose. Either the ultimate object should be to place the wife on an independent footing, and enable her to maintain herself against the world, or else, providing honorably, faithfully, and generously against all pos- sible misfortune, to teach her still to lean upon the stronger arm of her husband, and look to man for guidance. But our legislators sometimes appear to attempt both systems together, as if goaded on by the gadfly of feminine persistency. Laws which invite married women to embark in separate trade, tend plainly to the wife's independence. Laws, on the other hand, which class widows and orphans together as subjects for special protection, preserve homestead exemptions, permit of settlements against the husband's creditors, are founded on the policy of the wife's dependence. It is not to be presumed that frank and straightforward discussion is inapj^rojiriate to any topic where radical changes are demanded ; nor can the fundamental relation of the sexes and the balance of society be lightly disturbed. Equality and freedom are precious words ; but if the respective spheres of man and woman are equally honorable, equally useful, equally free, need * they be precisely identical ? Does not inequality * 19 manifest itself when the two seek to run the same cir- cuit ? As a logical proposition, if woman in her pursuits has the right to become a man, man has no less the right to become a woman. Whether the change would be expedient and wise, however, is another question. Certain it is that woman cannot claim the privileges of the two sexes ; if she would grasp at civil honors she must surrender her time-honored [19] * 19 INTRODUCTORY. tribute of chivalrous homage. Our people can afford to -u-ait ; and, leaving the burden of proof upon those who would falsify all the teachings of human experience, and gain for woman a foothold in an untried sphere of action, the legislator need not feel called upon to press forward with new-fashioned privileges in the spirit of old-fashioned politeness, before he is assured that they are either desired or desirable. A calm and dispassionate investigation of many acts shows that the common-law disabilities of the wife have been more carefully pruned than those of the husband. Some legislative changes in favor of the latter are desirable. Thus the common law obliged the husband to pay his wife's antenuptial debts, because he might have received a fortune by her; if then she retains her property, notwithstanding the marriage, this liabil- ity on his part should not continue. Again, it is possible that the husband, in some States, has lost his tenancy by the cur- tes}^ in his wife's lauds ; if so, is there any reason why the wife should retain a dower interest in her husband's lands ? So, too, compensation was formerly recoverable by the husband for injuries sustained by the wife, while on the other hand he was compelled to respond in damages for her misconduct ; many statutes now give compensation to the injured wife for her injuries, yet the husband must respond for her ill-behavior as before. Xor is it clear that where a married woman being of ample means retains her property independently of her husband, while his income continues slender, he ought to be held as strictly liable for her necessaries as in the days * 20 when the beneficial * enjoyment of her proj)erty would have vested absolutely in him.^ But perhaps the worst that can be said of the married women's acts in their present state, is the constant temptation they hold out to fraud and perjury. If the wife can ever be made a willing party to dishonorable transactions, it is when the husband seeks her protection against his own creditors. A large proportion of the cases which have arisen under the married women's acts involve secret transfers of property between husband and wife, made for the purpose of defeating 1 lu 8ome States, particularly as to antenuptial debts, the desired legislation is supplied; in others it is wanting. [20] INTRODUCTORY. * 20 the payment of just debts ; and in not a few of these cases the courts seem to have connived at what they probably con- sidered a sort of pious fraud. Every American lawyer of moderate professional experience knows that it is now quite common for men when straitened to turn their property over to their wives, and thus, if not avoiding justice altogether, at least hoping to bring creditors to their own terms. Where solemn instruments are dispensed with, and the ownership of property as between husband and wife is a mere matter of circumstantial evidence, such transfers are easily effected, and the capital of one may furnish credit for the other. Let us not forget that the marriage relation is a close one, and in pecuniary matters places two persons before the world some- what in the light of partners. Under the common law no serious difficulty could arise. The community system recog- nizes the quasi partnership liability distinctly. And under the civil law, which our statutes profess to follow, while husband and wife could contract with each other for a valu- able consideration, and could buy and borrow, sell and lend, between themselves, they were absolutely prohibited from making mutual gifts without consideration ; and so strict was the law in this respect that all persons to whose power they were subject came within the terms of the prohibition ; nor did it matter that the gifts were made through the interven- tion of third persons. As it was said, such gifts only should be sustained between husband and wife as " did not make the donor poorer and the donee richer." ^ A * strict * 21 system of registry, apphed to the wife's separate prop- erty, might check the frauds now justly complained of under our present statutes. Of the remaining topics to be discussed in the present trea- tise, little need be said by way of general preface. These have felt the softening influences of modern civilization. The common-law doctrine of parent and child finds its most im- portant modifications in the gradual admission of the mother to something like an equal share of parental authority ; in the 1 1 Burge Col. & For. Laws, 274. Gifts causa mortis stood upon a different footing. And see Paschal's Texas Code, " Marital Rights." [lil] *2l INTRODUCTORY. growth of popular systems of education for the j'oung ; in the enLnrged opportunities of earning a livelihood afforded to the children of idle and dissolute parents ; and in the less- ened misfortunes of bastard offspring. Guardian and ward, a relation of little importance up to Blackstone's day, has rapidly developed since into a permanent and well-regulated sj-stem under the supervision of the chancery courts, and in this country of the tribunals also with probate jurisdiction ; and much of the old learning on this branch of the law has become rubbish for the antiquary. The law of infancy remains comparatively unchanged. Of master and servant, we have spoken. We are now to investigate in detail the law of these several topics. But first the reader is reminded that the office of the text-writer is to inform rather than invent ; to be accurate rather than original ; to chronicle the decisions of others, not his own desires ; to illumine paths already trodden ; to criti- cise, if need be, yet always fairly and in furtherance of the ends of justice ; to analyze, classify, and arrange ; from a mass of discordant material to extract all that is useful, sep- arating the good from the bad, rejecting whatever is obsolete, searcliing at all times for guiding principles ; and, in fine, to emblazon that long list of judicial precedents through wliich our Anglo-Saxon freedom " broadens slowly down." [22] *PAET II. *22 HUSBAND AND WIFE. CHAPTER I. MARRIAGE. The word " marriage " signifies, in the first instance, that act by which a man and woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife. The act of union having been once accomplished, the word comes after- wards to denote the relation itself. It is frequently said in the courts of this country that mar- riage is nothing more than a civil contract. That it is a con- tract is doubtless true, to a certain extent, since the law always presumes two parties of competent understanding who enter into a mutual agreement, which becomes executed, as it were, by the act of marriage. But this agreement differs essentially from all others. This contract of the parties is simply to enter into a certain status or relation. The rights and obligations of that status are fixed by society, in accord- ance with principles of natural law, and are beyond and above the parties themselves. They may make settlements and regulate the property rights of each other ; but they cannot modify the terms upon which they are to live togetlier, nor superadd to the relation a single condition. Being once bound they are bound for ever. Mutual consent, as in all contracts, brings them together ; but mutual consent cannot part them. Death alone dissolves the tie, — unless the legislature, in the exercise of a rightful authority, inter- poses * by general or special ordinance to pronounce a * 23 solemn divorce ; and this it should do only when the [23] * 23 HUSBAND AND "WIFE. grossly immoral conduct of one contracting party brings unmerited shame upon the other, disgraces an innocent off- spring, aud inflicts a wound upon the community. So in other respects the law of marriage differs from that of ordinary contracts. For as concerns the parties themselves, mental capacity is not the only test of fitness, but physical capacity likewise ; a new element for consideration no less important than the other. Again the encumbrance of an existing union operates here as a special disquahfication. Blood relationship is another. So too an infant's capacity is treated on peculiar principles, as far as the marriage contract is concerned, for he can marry young and be bound by his marriage. Interna- tional law relaxes its usual requirements in favor of marriage. And finally the formal celebration now prevalent, both in England and America, is something peculiar to the marriage contract ; and in its performance we see but the faintest analogy to the execution and delivery of a sealed instrument. We are then to consider marriage, not as a contract in the ordinary acceptation of the term ; but as a contract sici generis, if indeed it be a contract at all ; as an agreement to enter into a solemn relation which imposes its own terms. On the one hand discarding the unwarranted dogmas of the Church of Rome by which marriage is elevated to the character of a sacrament, on the other we rejaucliate that dry definition with which the laAv-giver or jurist sometimes seek to impose upon tlie natural instincts of mankind. We adopt such views as the distinguished Lord Robertson held.^ And Judge Story observes of marriage: "It appears to me something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties ; and in this view it has some peculiarities in its nature, char- acter, operation, and extent of obligation, different from * 2-i what belongs to * ordinary contracts." ^ So Fraser, while defining marriage as a contract, adds in forcible language : " Unlike other contracts, it is one instituted by God himself, and has its foundation in the law of nature. It is the parent, not the child, of civil societ3^" ^ And we may 1 Duntze v. Levett, Ferg. 68, 385, 397 ; 3 Eng. Ec. 360, 495, 502. 2 Storv Confl. Laws, § 108 ». 3 1 Fras. Dom. Rel. 87. [24] MARRIAGE. * ^4 acid that a recent American text-writer, of high repute, not only pronounces for this doctrine, after a careful examination of all the c^uthorities, but ascribes the chief embarrassment of American tribunals in questions arising under the conflict of marriage and divorce laws, to the custom of applying the rules of ordinary contracts to the marriage relation.^ A distinction is made at law between void and voidable marriages. This distinction, which appears to have originated in a conflict between the English ecclesiastical and common- law courts, is first announced in a statute passed during the reign of Henry VIII. ; and it is also to be found in succeeding marriage and divorce acts down to the present day. The distinction of void and voidable applies not to the legal con- sequences of an imperfect marriage, once formally dissolved, but to the status of the parties and their offspring before such dissolution. A void marriage is a mere nullity, and its valid- ity may be impeached in any court, whether the question arise directly or collaterally, and whether the parties be living or dead. But a voidable marriage is valid for all civil pur- poses until a competent tribunal has pronounced the sentence of nullity, upon direct proceedings instituted for the purpose of setting the marriage aside. When once set aside, the marriage is treated as void ah initio ; but unless the suit for nullity reaches its conclusion during the lifetime of both parties, all proceedings fall to the ground, and both survivor and offspring stand as well as though the union had been lawful from its inception.^ Hence we see that while a void marriage makes cohabitation at all times * unlaw- * 25 ful, and bastardizes the issue, a voidable marriage pro- tects intercourse between the parties for the time being, fur- nishes the usual incidents of survivorship, such as curtesy and dower, and encourages the propagation of children. But the moment the sentence of nullity is pronounced the shield of the law falls, the incidents vanish, and innocent offspring are exposed to the world as bastards ; and herein is the greatest hardship of a voidable marriage. 1 1 Bish. Mar. & Div. 5th ed. § 18. And see Adams v. Palmer, 51 Me. 480. 2 Stat. 32 Hen. 8, c. 38. See 1 Bish. Mar. & Div. 5th ed. § 108 et seq. [25] * 25 HUSBAND AND WIFE. The old rule is that civil disabilities, such as idioc)^ and fraud, render a marriage void; while the canonical impedi- ments, such as consanguinity and impotence, makent voidable only. This test vras never a clear one, and it has become of little practical consequence at the present day. Statutes both in England and America have greatly modified the ancient law of valid marriages, and it can only be affirmed in general terms that the legislative tendency is to make marriages void- able rather than void, wherever the impediment is such as might not have been readily known to both parties before marriage ; and where public policy does not rise superior to all considerations of private utility. Modern civilization strongly condemns the harsh doctrine of ah initio sentences of nullity ; and such sentences have now in general a prospec- tive force only, in order that rights already vested may remain unimpaired, and, still more, that children may not suffer for the follies of their parents.^ We shall briefly consider in this chapter that act by which parties unite in matrimony, — for to this the term " marriage " is most frequently applied. It may be stated generally that, in order to constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without disquali- fication of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, * 26 neither of * them being bound by a previous nuptial tie, neither of them withholding a free assent ; and the expression of their mutual assent should be substantially in accordance with the prescribed forms of law. These are the essentials of marriage. Hence we are to treat of the follow- ing topics in connection with the essentials of a valid marriage : first, the disqualification of blood ; second, the disqualification of social condition ; third, mental capacity ; fourth, physical capacity ; fifth, the disqualification of infancy, which in reality is based upon united considerations of mental and physical unfitness ; sixth, prior marriage undissolved ; seventh, fraud, 1 Shelf. Mar. & Div. 154; ib. 479-484 ; 1 Bl. Com. 434 ; 1 Bish. Mar. & Dir. 5th ed. §§ 105-120. See Stat. 5 & 6 Will. 4, c. 54 ; 2 N. Y. Rev. Sts. 139, § 6 ; Mass. Gen. Sts. c. 106, § 4 ; Pingree v. Goodrich, 41 Vt. 47. [26] MARRIAGE. * 26 force, and error ; eighth, the formal celebration of a marriage, under which last head may be also included the consent of parents or guardians, not to be deemed an essential, except in conformity with the requirements of the marriage celebration acts. These essentials all have reference solely to the time, place, and circumstances of entering into the marriage rela- tion, and not to any subsequent incapacity of either party. And, first, as to the disqualification of blood. On no point have writers of all ages and countries been more united than in the conviction that nature abhors, as vile and unclean, all •sexual intercourse between persons of near relationship. But on few subjects have they differed so widely as in the appli- cation of this conviction. Among Eastern nations, since the daj-s of the patriarchs, practices have prevailed which to Christian nations and in days of civilized refinement, seem shocking and strange. The difficulty then is, not in discover- ing that there is some prohibition by God's law, but in ascer- taining how far that prohibition extends. This difficulty is manifested in our language by the use of two terms: consanguinity and affinity; one of which covers the terra firma of incestuous marriages, the other offers debatable ground. The disqualification of consanguinity applies to marriages between blood relations in the lineal or ascending and descending lines. There can be but one opinion concerning the union of relations * as near as brother * 27 and sister. The limit of prohibition among remote col- lateral Idndred has, however, been differently assigned in different countries. The English canonical rule is that of the Jewish law. The Greeks and Romans recognized like prin- ciples, though with various modifications and alterations of opinion. But the church of the Middle Ages found in the institution of marriage, once placed among the sacraments, a most powerful lever of social influence. The English ecclesi- astical courts made use of this disqualification, extending it to the seventh degree of canonical reckoning in some cases, and beyond all reasonable bounds. So intolerable became this oppression, that statutes passed in the time of Henry VIII. forbade these courts thenceforth to draw in question mar- riages without the Levitical degree, " not prohibited by God's [27] * 27 HUSBAND AND WIFE. law." 1 Under these statutes, wliicli are still essentially in force in England, the impediment has been treated as extend- ing to the third degree of the civil reckoning inclusive ; or in other words, so as to prohibit all marriages nearer than first cousins. Archbishop Parker's table of degrees, which recognizes this limit, has been, since 1563, the standard adopted in the English ecclesiastical courts.^ The statute prohibition includes legitimate as well as illegitimate children, and half-blood kindred equally with those of the whole blood. But the Enghsh law goes even further, and places affin- ity on the same footing as consanguinity as an impediment.* Affinity is the relationship which arises from marriage between a husband and his wife's kindred, and vice versa. It is shown that while the marriage of persons allied by blood produces offspring feeble in body and tending to insanity, that of persons connected by affinity leads to no such result ; and further, that consanguinity has been everywhere recognized as an impediment, but not affinity. The worst that can * 28 probably be said of the latter * is, that it leads to con- fusion of domestic rights and duties. No question has been discussed with more earnestness in both England and America, with less positive result, than one which turns upon this very distinction; namely, whether a man may marry his deceased wife's sister. This question has received a favorable response in Vermont.^ But in England such marriages are still deemed incestuous, and within the pro- hibition of God's law."^ Marriages within the forbidden degrees of consanguinity were formerly voidable only in English law ; but by modern statutes they have been made null and void. In this country they are generally pronounced void by statute, and the offend- 1 Stat. 32 Hen. 8, c. 38 ; see Bish. Mar. & Div. 5th ed. §§ 106, 107 ; 2 Kent Com. 82, 83 ; Shelf. Mar. & Div. 163 et seq. ; Wing v. Taylor, 2 Swab. & T. 278, 295. 2 1 Bish. Mar. & Div. 5th ed. § 318; Butler v. Gastrill, Gilb. Ch. 156. 3 Blodget V. Bruismaid, 9 Vt. 27 ; and see 1 Bish. Mar. & Div. 5th ed. § 31-1 ; Paddock v. Wells, 2 Barb. Ch. 331. « Hill V. Good, Vaugh. 302 ; Harris v. Hicks, 2 Salk. 548 ; Shelf. Mar. & Div. pp. 172, 178; 2 Kent Com. 84, note, and authorities cited; Reg. v. Chadwick, 12 Jur. 171; 11 Q. B. 173. [28] MARRIAGE. ♦ 28 ing parties are liable to imprisonment. But with regard to mar- riages among relatives by affinity, the rule is not so stringent as in England.^ Second, as to the disqualification of social condition. Eace, color, and social rank do not appear to constitute an impedi- ment to marriage at the common law, nor is any such im- pediment now recognized in England.^ But by local statutes in some of the United States, intermarriage has been dis- couraged between persons of the negro, Indian, and white races.^ With the recent extinction of slavery, many of these laws have passed into oblivion, together with such as refused to allow to persons held in bondage the rights of husband and wife.^ The thirteenth * article of amendment to * 29 the constitution gives Congress power to enforce the abolition of slavery " by appropriate legislation." As to per- sons formerly slaves, there are now acts of Congress which legitimate their past cohabitation, and enable them to drop the fetters of concubinage. And the manifest tendency of the day is towards removing all legal impediments of rank and condition, leaving individual tastes and social manners to impose the only restrictions of this nature.^ Tliird, as to mental capacity. No one can contract a valid marriage unless cajDable at the time of giving an intelligent consent. Hence the marriages of idiots, lunatics, and all others who have not the use of their understanding, are now treated as null ; though the rule was formerly otherwise. What degree of insanity will amount to dis.qualification is not 1 2 Kent Com. 83, 84, and notes ; 1 Bisli. Mar. & Div. 5th ed. §§ 312-320; Regina v. Chadvvick, 12 Jur. 174; Sutton v. Warren, 10 Met. 401 ; Bonliam v. Badgle}', 2 Gilm. 622 ; Wlglitman v. Wiglitnian, 4 Johns. Ch. 343 ; Butler v. Gas- trill, Glib. Ch. 156 ; Burgess v. Burgess, 1 Hag. Con. 384 ; Blackmore v. Brider, 2 rhillim. 359. See Harrison v. State, 22 Md. 468. •^ 1 Bi.sli. Mar. & Div. 5th ed. §§ 308-311 ; 1 Burge Col. & For. Laws, 138 3 See Bailey v. Fiske, 34 Me. 77; Slate v. Hooper, 5 Ire. 201; State v. Brady, "J Humph. 74 ; Barkshire v. State, 7 Ind. 389 ; 1 Bish. Mar. & Div. 5th ed. §§ 154-163. * But marriage between whites and negroes is still prohibited, and even made a crime in certain States. See State v. Gibson, 36 Ind. 389 ; State r. Ilairston, 63 N. C. 451; Scott v. State, 39 Geo. 321. 5 Act July 25, 1866, c. 240; Act June 6, 1866, c. 106, § 14. And see 15th . Amendment U. S. Const.; Stewart v. Munchaudler, 2 Bush (Ky.), 278; State V. Harris, 63 N. C. 1. [29] * 29 HUSBAND AND WIFE. easily determined ; so varied are the manifestations of mental disorder at the present day, and so gradually does mere feeble- ness of intellect shade off into hopeless idiocy. Certain it is that a person may enter into a vahd marriage, notwithstand- ing he has a mental delusion on certain subjects, is eccentric in his habits, or is possessed of a morbid temperament, pro- vided he displays soundness in other respects, and can manage his own affairs with ordinary prudence and skill. ^ Every case stands on its own merits ; but the usual test applied in the courts is that of fitness for the general transactions of life ; for, it is argued, if a man is incapable of entering into other contracts, neither can he contract marriage.^ This test is sufficiently precise for most purposes. Yet we apprehend the real issue is whether the man is capable of entering * 30 understandingly into * the relation of marriage ; for nat- ural impulses are so strong that a man may know well the contract he assumes by the act of marriage, while he is not equally fit to enter into other engagements. There are two questions, however : first, whether the party understands the marriage contract ; second, whether he is fit to perform understandingly the obligations which that contract imposes ; and both elements might well enter into the consideration of each case. Marriasre contracted during a lucid interval is at law deemed valid ; ^ but the English statute provides that such marriages are void when a commission of lunacy has once been taken out and remains unrevoked.^ Similar provisions are to be found in some of our States. On the other hand, marriage contracted by a person habitually sane, during temporary in- sanity, is unquestionably void.° And upon the principle of 1 2 Kent Com. 76; Browning i-. Reane, 2 Phillim. 69; 1 Bish. Mar. & Div. 5th ed. §§ 124-142 ; Turner v. Meyers, 1 Hag. Con. 414 ; 4 Eng. Ec. 440 ; 1 Bl. Cora. 438, 439, 2 Mudway v. Croft, 3 Curt. Ec. 671 ; Anon., 4 Pick. 32 ; Cole v. Cole, 5 Sneed, 57; Atkinson v. Medford, 46 Maine, 610; Ward v. Dulaney, 23 Miss. 410; McElroy's Case, 6 W. & S. 461. See 1 Bish. Mar. & Div. § 128; Ex parte Glen, 4 Des. 546; Hancock v. Peaty, L. R. 1 P. & D. 335. 3 Shelf. Mar. & Div. 197 ; 1 Bish. Mar. & Div. § 130. * Stat. 15 Geo. 2, c. 30, 1742. 5 Legeyt v. O'Brien, Milward, 325; Parker r. Parker, 2 Lee, S82; 6 Eng. Ec. 165. [30] MARRIAGE. * 30 temporary insanity, drunkenness incapacitates, if carried to the excess of delirium tremens ; though not, it A^ould appear, if the party intoxicated retains sufficient reason to know what he is doing.i Drunkenness was formerly held a bad plea ; for the common law permitted no one to stultify himself ; but the modern rule is more reasonable. Some cases require that fraud or unfair advantage should be shown ; yet the better opinion is that even this is unnecessary .^ Deaf and dumb persons were formerly classed as idiots ; this notion, however, is exploded. They may now contract marriage by signs.^ Total blindness, or mere deafness, of course constitutes no incapacity. Suits of nullity, brought to ascertain the facts of insanity, are favored by law both in England and America ; and modern legislation discountenances all collateral disputes in- volving questions so painful * and perplexing. " Though * 31 marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be absolutely necessary," says Chancellor Kent, "yet, as well for the sake of the good order of society, as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of com- petent jurisdiction."^ In many States this is now the only course to be pursued, such marriages being treated as void- able and not void. Fourth. The question of physical capacity involves an in- vestigation of facts even more painful and humiliating than that of mental capacity. Yet as marriage is instituted, in part at least, for the indulgence of natural cravings and with a view to propagate the human family, sound morality demands that the proper means shall not be wanting. Where impo- i Clement v. Mattison, 3 Rich. 93; 1 Bish. Mar. & Div. 6tli ed. § 131; Gore V. Gibson, 13 M. & W. 623 ; 2 Kent Com. 451, and authorities cited ; Lord Ellen- borough, in Pitt V. Smith, 3 Camp. 33. See Scott v. Paquet, L. R. 1 P. C. 552. 2 See 1 Bish. Mar. & Div. 5th ed. §§ 131, 132, and conflicting cases cited. And see recent Delaware case of Elzey v. Elzey, 1 Houston, 308. 8 1 Bish. Mar. & Div. 5th ed. § 133, and cases cited ; 1 Eras. Dom. Rcl. 48; Dickenson v. BHsset, 1 Dickens, 208; Ilarrod v. Harrod, 1 Kay & Johns. 4. « 2 Kent Com. 76. See 1 Bish. Mar. & Div. 5th ed. §§ 130-142 ; Crump v. Morgan, 3 Ire. Eq. 91 ; Goshen v. Richmond, 4 Allen, 458 ; Hamaker v. Ilamaker, 18 III. 137 ; Williamson i;. Williams, 3 Jones Eq. 446 ; Wiser v. Lockwood, 42 Vt. 720. [31] * 31 HUSBAND AND WIFE. tence exists, there can be no valid marriage. By this is meant simply that the sexual organization of both parties shall be complete. But mere barrenness constitutes no legal inca- pacity, nor can a physical defect which does not interfere with copulation ; nor indeed any disability which is curable, even though not actually cured, unless the party disabled unreason- ably refuses to submit to the proper remedies.^ The necessity of judicial sentence, before such marriage can be considered null, is too obvious for argument.^ The reader will find Dr. Lushington's opinion, in the leading case of Deane v. Aveling,^ sufficiently suggestive as to the extent of malformation which invalidates a marriage on the ground of physical incapacity. We shall only add, that with the rapid progress of med- *32 ical science during the present century, cases *of abso- lute and incurable impotence are happily diminishing in number.* Fifth. Infancy may be an impediment to marriage ; but only so far, on principle, as the marrpng party, b}^ reason of imperfect mental and physical development, may be brought within the reason of the last two rules. Hence we find that infancy is not a bar to marriage to the same extent as in ordinary contracts ; since minors cannot repudiate their choice on reaching majority. Not that marriage calls for less dis- crimination ; for it carries with it consequences far beyond all other contracts, involving property rights of the gravest import ; but because public policy must protect the marriage institution against reckless imprudence. A certain period is established called the age of consent, which in England is fixed at fourteen for males and tAvelve for females, a rule 1 1 Bish. Mar. & Div. §§ 321-340, and cases cited ; 1 Fras. Dom. Eel. 53; B. V. B., 28 E. L. & Eq. 95 ; 1 Bl. Com. 440, n. by Chitty and others ; Ayl. Parer. 227 ; Devanbagh v. Devanbagh, 5 Paige, 554 ; Essex v. Essex, 2 Howell St. Tr. 786 ; Briggs v. Morgan, 3 Phillim. 325. For a case where the disability was possibly curable, see G. v. G., L. R. 2 P. & D. 287. 2 See A. V. B., L. R. 1 P. & D. 659. 3 1 Robertson, 279. And see recent case of U. v. J., L. R. 1 P. & D. 460. « See recent cases : W. v. H., 2 Swab. & T. 240 ; T. v. M., L. R. 1 P. & D. 31 ; T. V. J)., L. R. 1 P. & D. 127 ; Carll v. Prince, L. R. 1 Ex. 246. The statute remedy in many States for cases of this sort is by divorce proceedings. See G. V. G., 33 Md. 401. And in other instances, where decrees of nullity would ap- pear suitable, our statutes permit of the sentence of divorce. [32] MARRIAGE. ♦32 adopted from the Roman law, but which, in this country, varies all the way from fourteen to eighteen for males, and twelve to sixteen for females, according to local statutes ; differences of climate and physical temperament contributing doubtless to make the rule of nature in this respect a fluctuat- ing one.^ Marriages without the age of consent are as bind- ing as those of adults ; marriages within such age may be avoided by either party on reaching the period fixed by law. And even though one of the parties was of suitable age and the other too young, at the time of marriage, yet the former, it appears, may disaffirm as well as the latter.^ Herein is observed a departure from that principle of law, that an infant * may avoid his contract while the adult remains * 33 bound* it is a concession which the law makes in favor of mutuality in the marriage compacts. Marriages celebrated before both parties have reached the age of consent may be disaffirmed in season, either with or without a judicial sen- tence. When the age of consent is reached, no new ceremony is requisite to complete the marriage at the common law ; but election to affirm will then be inferred from circumstances, such as continued intercourse, and even slight acts may suffice to show the intention of the parties. If they then choose to remain husband and wife they are bound for ever. Marriage within the age of consent seems therefore to be neither strictly void nor strictly voidable, but rather inchoate and imperfect.^ Sixth, as to the impediment of prior marriage undissolved. 1 See 2 Kent Com. 79, notes, showing the periods fixed iu different States as the age of consent. In tiie old States the common-law rule generallj'^ pre- vails. In Ohio, Indiana, and other Western States, tlie age of consent is raised to eighteen for males, and fourteen for females. See also Bennett v. Smith, 21 Barb. 439, as to the power of the New York courts to annul marriages with per- sons under age. 2 Co. Litt. 79, and Harg. n. 4-5; 1 East P. C. 468; 1 Bish. Mar. & Div. 5th ed. § 149. But it is not certain that a party of competent age may disaffirm equally with the party incompetent. People v. Slack, 15 Mich. 193. 3 Co. Liu. 33 a ; 2 Kent Com. 78, 79; 1 Bish. Mar. & Div. 5th ed. §§ 143-153, and cases cited ; 1 Bl. Com. 436 ; 1 Fras. Dom. Rel. 42 ; Parton i'. Hervey, 1 Gray, 119; Fitzpatriok v. Fitzpatrick, 6 Nev. 63. See Shafher r. State, 20 Ohio, 1 ; contra, Goodwin v. Thompson, 2 Iowa, 329, as to the invalidity of such marriages, unless confirmed by cohabitation after reaching the statutory age. 3 [33] * 33 HUSBAND AND WIFE. It is a well established rule in civilized countries that mar- riage between parties, one of whom is bound by an existing marriage tie, is not only void, but subjects the offenders to criminal prosecution.^ Polygamy, or bigamy as it is often termed, — since the common law of England could scarcely conceive of such conjunctions carried beyond a double mar- riage, — is discarded by all Christian communities. It is tolerated, though not sanctioned, in certain territory of the United States. The fundamental doctrine of Christian mar- riage is that no length of separation can dissolve the union, so long as both parties are actually living, even though lapse of time should raise a reasonable supposition of death. But to render the second marriage void at law, the first should have been valid in all respects.^. Some of the harsher * 34 features of the old law have been * softened in our own legislation ; and statutes are not uncommon which extend facilities for divorce, and in any event protect the offspring of a new marriage contracted erroneously but in good faith by parties who had reason to believe a former spouse dead.^ So, too, polygamy in fact is relieved of its penal consequences as concerns parties not guilty of polygamy in intention ; but a certain period must elapse — usually seven years — before death can be presumed from continuous absence alone. Such was one of the provisions in the Eng- lish statute passed in the reign of James I.,* which also exempted from punishment for bigamy persons during the lifetime of the former spouse re-married after a divorce, sen- tence of nullity, or disaffirmance on reaching age of consent. Similar statutes are enacted in this country.^ Polygamy, 1 Cro. Eliz. 858; 1 Salk. 121; 2 Kent Com. 79, and notes; 1 Bish. Mar. & Div. §§ 2'J6-303, and authorities cited ; Shelf. Mar. & Div. 224. -' Bruce v. Burke, 2 Add. Ec. 471 ; 2 Eng. Ec. 381; Reg. v. Chadwick, 12 Jur. 174; Patterson v. Gaines, 6 How. (U. S.) 550. 3 See N. Y. Rev. Stat. vol. 2, p. 139, §§ 6, 7. * Stat. 1 Jac. 1, c. 11, 1604. See Queen v. Lumley, L. R. 1 C. C. 196. 5 In New York, the period of absence is five years ; in Oiiio, tliree years ; in Massacliusetts, seven years, but with a special relaxation of the penalty. Still further, see 2 Kent Com. 79, and notes. Parties are not free to marry again, but only relieved of penal consequences. Miles v. Chilton, 1 Robertson, 684 ; Wil- liamson V. Parisian, 1 Johns. Ch. 389 ; and other authorities cited in 1 Bish. Mar. & Div. § 299. See Strode v. Strode, 3 Bush, 227 ; Teift v. Tefl't, 35 Ind. 44. A [34] MARRIAGE. * 3-t with sucli exceptions, remains an indictable offence. One of its less obvious evils — though not the least important when polj'gamy is regarded as a legalized institution in a free country — is that the patriarchal principle which it intro- duces is thoroughly hostile to free institutions ; this fact was pointed out many years ago by one of our best writers on political ethics.^ Under this same head may be considered a disqualification introduced into some parts of this country by legislative enactments ; namely, the impediment which follows divorce.^ A divorce a vinculo should on general principles leave both parties free to marry again. But such is not always the case. Thus in Kentucky the person injured may not marry again before * the expiration of two years from the * 35 decree of dissolution.^ And in several States, the guilty party is prohibited from marrying again during the lifetime of the innocent spouse divorced ; a provision of law seemingly more judicious to apply in terrorem by way of prevention than as a suitable method of punishment.* In Scotland there is a peculiar law which forbids the guilty party after divorce from marrying the partieeps crimiiiis ; this was framed evidently to defeat collusive practices between persons desiring to put away an outstanding obstacle to their own union.^ Seventh. All marriages procured by force or fraud, or in- volving palpable error, are void ; for here the element of mut- ual consent is wanting, so essential to every contract.*" The marriage with a man whose wife is still living being void, the woman who was misled into marrying him may marry anotlier, altiiough her husband by such void marriage is still living. Reeves v. Reeves, 54 111. 332. For circumstances under wliich tlie woman fraudulently induced to enter into a void marriage of this sort may sue the man in damages, see Blossom v. Barrett, 37 N. Y. 434. 1 2 Lieber Pol. Ethics, 9, cited in note to 2 Kent Com. 81. See Hyde v. Woodmansee, L. R. 1 F. & D. 130. 2 1 Bish. Mar. & Div. 5th ed. §§ 304-307. 3 Cox V. Combs, 8 B. Monr. 231. < See Parke v. Barron, 20 Geo. 702, where it is intimated tliat such marriages would not be void. And see Kinnier v. Kinnier, 53 Barb. 454. & 1 Eras. Dom. Rel. 82. 6 2 Kent Com. 76, 77 ; 1 Bish. Mar. & Div. 5th ed. §§ 1G4-215; Harford v. Morris, 2 Hag. Con. 423 ; 4 Eng. Ec. 575 ; Countess of Portsmouth v. Earl of Portsmouth, 1 Hag. Ec. 355; 3 Eng. Ec. 154 ; Scott f. SliuleUlt, 5 Paige, 43 , [35] ♦ 35 HUSBAND AND WIFE. law treats a matrimonial union of this kind as absolutely void ah initio^ and permits its validity to be questioned in any court ; at the option however of the injured party, who may elect to abide by the consequences when left free to give or withhold assent. Force implies a physical constraint of the will ; fraud, some deception practised, whereby an unnatural state of the will is brought about.^ Cases of palpable error, which are very rare, usually contain one or both of these ingredients. What amount of force is sufficient to invalidate a marriage is a question of circumstances. Evidently the same test could not apply to the mature and the immature, to the strong and the weak, to man and to woman. The general rule is that such amount of force as might naturally serve to overcome one's free volition and inspire terror * 36 will render the marriage null.^ And where * the party employing force sustains a superior relation of influence, which he chooses to abuse, this circumstance carries great weight. Thus in Harford v. Morris^ where one of the guar- dians of a young and timid school-girl, having great influence and authority over her, took her to a foreign country, hurried her from place to place, and then married her without her free consent, the marriage was set aside.^ So marriage by compulsion is procured when one under illegal arrest is forced to marry ; and so probably, though the arrest was legal, if malicious circumstances are manifest.^ But if a man under some slight duress marries a woman whom he had seduced, in order to avoid criminal prosecution, the law will favor a presumption of honest repentance on his part and hold him bound.^ As to fraud, in order to vitiate a marriage, it should go to the very essence of the contract. But what constitutes Dalrymple v. Dalrymple, 2 Hag. Con. 64, 104 ; 4 Eng. Ec. 485 ; Keyes v. Keyes, 2 Fost. (N. H.) 553. 1 1 Eras. Dom. Rel. 234. 2 Slielf. Mar. & Div. 213 ; 1 Bish. Mar. & Div. 5th ed. § 211. 3 2 Hag. Con. 423 ; 4 Eng. Ec. 675. 4 Reg. V. Orgill, 9 Car. & P. 80; Soule v. Bonney, 37 Me. 128; Collins v. Collins, 2 Brews. (Pa.) 515; Barton v. Morris, 15 Ohio, 408; Benton v. Benton, 1 Day, 111. See 1 Bish. Mar. & Div. 5th ed. § 212; Williams v. State, 44 Ala. 24. * Jackson v. Winne, 7 Wend. 47. [36] MARRIAGE. * 36 this essence ? The marriage relation is not to be distiirhed for trifles, nor can the cumbrous machinery of the courts be brought to bear upon impalpable things. The law, it has been well observed, makes no provision for the relief of a bUnd credulity, however it may have been produced. ^ Fraud- ulent misrepresentations of one party, as to birth, social position, fortune, good health, and temperament, cannot therefore vitiate the contract. Caveat emptor is the harsh but necessary maxim of the law. Love, however indispensa- ble in an sesthetic sense, is by no means a legal essential to mariiage ; simply because it cannot be weighed m the scales of justice. So too all such matters are peculiarly within the knowledge of the parties themselves, and they are put upon reasonable inquiry. Not even does the concealment of previous unchaste and immoral * behavior in general * 37 vitiate a marriage ; for although this seems to strike into the essence of the contract, yet public policy pronounces otherwise, and opens marriage as the gateway to repentance and virtue.2 If the profligate continue a profligate after marriage the divorce laws afford an easy escape to the deluded victim. Still as this doctrine seems to bear hard upon inno- cent persons marrying in good faith and with misplaced con- fidence, it is applied not without some limitations : thus where a woman pregnant by another man at the time of the nuptials, bears a child soon after to an innocent husband, the marriage may be avoided by him, for she has thereby not only inflicted upon him the grossest possible injury, but subjected them both to scandal and ill-repute.^ As to error, it may be said as in fraud that the error should reach the essentials ; thus where one is actually substituted for another. Chan- cellor Kent justly observes, however, that it would be diflicult 1 Lord Stowell, in Wakefield v. Maekay, 1 Phillim. 137 ; 2 Kent Com. 77 ; 1 Bish. Mar. & Div. 5th ed. §§ 166-168. 2 1 Bish. Mar. & Div. §§ 170, 179 ; Rogers Ec. Law, 2d ed. 644 ; 1 Eras. Dora. Rel. 231 ; Ayl. Parer. 362, 363 ; Swinb. Spoiisals, 2d ed. 152; Best v. Best, 1 Add. Ec. 411 ; 2 Eng. Ec. 158 ; Leavitt v. Leavitt, 13 Mich. 452 ; Wier v. Still, 31 Iowa, 107* 3 Reynolds v. Reynolds, 3 Allen, 605. See Foss v. Foss, 12 Allen, 26 ; Cre- hore V. Crehore, 97 Mass. 330 ; Baker v. Baker, 13 Cal. 87 ; Montgomery i-. Montgomery, 3 Barb. Ch. 132. [37] * 37 HUSBAND AND WIFE. to find a case where simple error, without some other element, would be permitted to vacate a marriage.^ There is an English case in point where a man courted and afterwards married a young lady, believing her to be a certain rich widow whom he had known only by reputation. She and her friends had countenanced the deception. It was held nevertheless that the marriage must stand.^ In most of the reported cases of fraud, force, and error, two or more of these elements are united; and frequently another impediment appears, such as tender years on the part of the injured party ; or with regard to the offender, the sup- * 38 pression * of material facts relative to some former mar- riage, or to his own mental or physical incapacity, or some other cause of nullity is shown by the evidence. In the reported cases where the complainant was successful, some unprincipled man has generally sought to gain undue advan- tages from the person and fortunes of one whose feebler will rendered her an easy prey ; it rarely if ever appears that force or fraud led to a reasonable and well-assorted match. Such unequal alliances need find favor fi'om no tribunal.'^ All marriages of this sort are binding without further cere- mou}-, provided the injured party sees fit to affirm it after all constraint is removed ; but no such freedom of choice seems to be left to the offending party. Hence, this sort of marriage seems neither void nor voidable in the legal acceptation ; but rather inchoate or incomplete until ratified, though void, if the injured choose so to treat it. Where consummation never followed the nuptials, the courts are the more readily disposed to set aside the match ; but in any event copulation, with knowledge of the fraud, and after removal of all constraint, 1 2 Kent Com. 77. But see Lord Campbell, in Reg. v. Millis, 10 CI. & F. 634, 785 ; 1 Bish. Mar. & Div. 5th ed. § 207 ; Clowes v. Clowes, 3 Curt. Ec. 185, 191. - Fielding's Case, cited in Burke's Celebrated Trials, 63, 78, and in 1 Bish. Mar. & Div. 5th ed. § 204. 3 See Heffer v. Heffer, 3 M. & S. 265 ; Eex v. Burton-upon-Trent, 3 M. & S. 537 ; Swift v. Kelly, 3 Knapp, 257 ; Nace v. Boyer, 6 Casey, 99 ; Powell v. Cobb, 3 Jones Eq. 456. If a person is unwittingly entrapped into a marriage ceremony, not meaning that it shall be binding, the marriage is void. Clark* y. Field, 18 Vt. 460. A mock marriage in jest is no marriage. McClurg v. Terry, 21 N. J. Eq. 225. [38] MARRIAGE. * 38 is an effectual bar to relief.^ The issue is between the offender and the injured partjs and third persons have no right to interfere, although it be alleged that there was intent to defraud them in their own property interests.^ We may add that where such marriages are effected through the fraudulent conspiracy of third persons, the rule is that unless one of the contracting parties is cognizant of the fraud, the marriage is perfect ; but if cognizant, 'it is to be deemed the fraud of such party .^ * Eighth. We are now brought to the important sub- * 39 ject of the formal marriage celebration. Here there is a wide difference noticeable between general principles and estal)lished practice. We are to consider this topic, then, in two separate aspects : first, as to marriage observance in the absence of civil requirements ; second, as to marriage ob- servance under the statutes now in force in England and America. It is to be premised, however, that some form of marriage promise, some ceremony however slight, has always been deemed essential to its validity. The common language of the books is that, in the absence of civil regulations to the contrary, nothing but mutual consent is required. And the old maxim of the Roman law is quoted to support this view : Nuptias non conciibitus, sed consensus facitA But is there not an ambiguity in the use of such language ? For it is material to ask whether consensus or consent is used in the sense of simple volition or an expression of volition. We maintain that the latter is the correct legal view ; and that it should be said that the law requu-es in such cases a simple^expression of mutual consent, and no more. For the very definition of marriage implies that there should be not only the consenting mind, but an expression of the consenting mind, by words or signs, which expression in proper form constitutes in fact the 1 1 Bish. Mar. & Div. 5th ed. §§ 214, 215; 1 Burge Col. & For. Laws, 137; 1 Fras. Dom. Rel. 229; Scott v. Shufeklt, 5 Paige, 43; Leavitt i'. Leavitt, 13 Mich. 452 ; Hampstead v. Plaistow, 49 N. II. 84. 2 McKinney v. Clarke, 2 Swan, 321. 3 Sullivan v. Sullivan, 2 Hag. Con. 2.38, 246 ; Rex v. Minshull, 1 Xev. & M. 277 ; 1 Bish. Mar. & Div. § 173 et seq. * See 2 Kent Com. 86, 87 ; Co. Litt. 33 a ; 1 Bish. Mar. & Div. §§ 218-267. [39] * 39 HUSBAND AND WIFE. marriage agreement. It is in this sense that we shall apply the terms formal and informal to marriage in the following sections. To constitute a marriage, then, where there are no civil requirements, — or, in other words, to constitute an informal marriage, — words clearly expressing mutual consent are suffi- cient, without other solemnities. Two forms of consent are mentioned in the books: the one, consent per verba deprcesenti^ with or without consummation ; the other, consent per verba de futuro, followed by consummation. ^ Some writers *40 have added *a third form of consent, — by habit and repute ; but this is, very clearly, nothing more than evidence of consummated marriage amounting to a conclusive presumption. So, too, there is reason to suppose that the marriage j^^r verba de futuro is of the same sort ; marriage per verba de j^rcesenti constituting the only real marriage promise, while consummation following de futuro words of prom- ise, raises a legal presumption, perhaps conclusive, that words de p>roesenti afterwards passed between the parties. The copula is no part of the marriage ; it only serves to some extent as evidence of marriage.^ Consensus, non conouhitus, is the maxim of the civil, ecclesiastical, and common law alike. ^ Informal celebration constitutes marriage as known to nat- ural and 23ublic law. The English canon law as it stood pre- vious to the Council of Trent, the law of Scotland, the law of some of the United States, and perhaps the common law of England, all dispense with the ceremonial observances of for- mal marri^e. But, as we shall see, the marriage acts now in force in England and most of the United States render certain solemnities, religious or secular, indispensable. Most of the decisions relating to informal marriages are therefore to be found in the Scotch reports, where the general doctrine has 1 Swinb. Spousals, 2d eil. 8 ; 2 Burn Ec. Law, Pbillim. ed. 455 e ; Lord Cot- tenham, in Stewart v. Menzies, 2 Rob. Ap. Cas. 547 ; 1 Bish. Mar. & Div. 5th ed. § 227. 2 1 Bish. Mar. & Div. 5th ed. § 228; Jackson v. Winne, 7 Wend. 47 ; Du- maresly v. Fisiily, 3 A. K. Marsh. 368, 872. 3 Dalrymple v. Dalrymple, 2 Hag. Con. 54; 4 Eng. Ec. 485, 489; Shelf. Mar. & Div. 5-7. [40] MARRIAGE. * 40 been pretty fully discussed. And the great, almost insuper- able, difficulty which presents itself at the outset in such cases is thus clearly indicated by Lord Stowell, in Linclo v. Belhario : " A marriage is not every carnal commerce ; nor would it be so even in the law of nature. A mere carnal commerce, with- out the intention of cohabitation and bringing up of children, would not constitute marriage under any supposition. But when two persons agree to have that commerce for the pro- creation and bringing up of children, and for such last- ing * cohabitation, — that, in a state of nature, would be * 41 a marriage, and, in the absence of all civil and religious institutions, might safely be presumed to be, as it is properly called, a marriage in the sight of God.''' ^ Did parties coming thus together mean fornication or did they mean marriage ? Here it is seen that there should not only be words of prom- ise, but that they should be uttered with matrimonial intent. To ascertain the purpose of the parties in each case, the courts will look at all the circumstances ; and even admit parol evi- dence to contradict the terms of a written contract ; in this respect modifying the ordinary rules of evidence. For writings of matrimonial acknowledgment may have been interchanged as a blind or cover for some scheme well understood between the parties.2 Or again by way of jest.^ But in cases of doubt the rule is to sustain the marriage as lawful and binding. If there has been continued intercourse between the parties, this presumption becomes of course still stronger. And if promises were exchanged, while one acted in good faith and in earnest, the other is not permitted to plead a mental reservation.* Words of present promise, in order to constitute a marriage, must contemplate a present, not a future, assumption of the status. And herein lies a difficulty : that of discriminating between actual marriage and what we now commonly term 1 1 Hag. Con. 216 ; 4 Eng. Ec. 367, 374. See 1 Bish. Mar. & Div. 5th ed. §§ 216-267, and cases cited ; 2 Kent Com. 86 and n. ; 1 Eras. Dom. Rel. 140, 184, 187, 212. 2 Dalrymple v. Dalrymple, 2 Hag. Con. 54, 105 ; 4 Eng. Ec. 485, 508, 509, cited in 1 Bish. Mar. & Div. 5th ed. §§ 289-241. 3 lb. * lb. And see 1 Eras. Dom. Rel. 213 ; Lockyer v. Sinclair, 8 Scotch Sess. Cas. N. s. 582. [41] * 41 HUSBAND AND WIFE. an engagement. If the agreement be by words of present •promise, — as if the parties should say, " We agree to be henceforth man and wife," — the marriage is perfect. The form of expression is not materiah^ And Swinburne says that though the words should not of themselves conclude matri- mony, yet the marriage would be good if it appeared * 42 that such was the intent.^ * The proposal of one must be actually accepted by the other ; j^et such acceptance may be indicated by acts, such as a nod or courtesy. Written promises are of course unnecessary ; though the reported cases show frequently letters or other writings interchanged, from which the intent was gathered. And in the celebrated Scotch case of Balrymple v. Dalrymple^ a marriage promise was established from the successive united acknowledgments of the parties as man and wife, the writings having been pre- served by the lady and produced by her at the trial. In this case the principle was sustained, that words importing secrecy or alluding to some future act or public acknowledgment, when superadded to words of present promise, do not invali- date the agreement.^ More uncertainty arises in matrimonial contracts where a condition inconsistent with marriage is superadded ; as if parties should agree to live together as man and wife for ten years ; but bona fide intent may be fairly presumed where there are no special circumstances to throw light upon the conduct of the parties.'^ Marriage by words of future promise is consummated when two persons agree to marry at some future period and after- 1 1 Bish. Mar. & Div. 5th ed. §§ 227, 229 ; 1 Fras. Dom. Eel. 145-149. 2 Swinb. Spousals, 2d ed. 87. 3 Dalrymple v. Dalrymple, 2 Hag. Con. 54 ; 4 Entr- Ec. 485 ; Mclnnes- v. More, Ferg. Consist. Law Rep. 33; Hoggan v. Cragie, Maclean & Rob. 942. * See 1 Bish. Mar. & Div. 5th ed. §§ 245-250 ; Ciirrie v. Turnbull, Hume, 373 ; 1 Fras. Dom. Rel. 154. See Hamilton v. Hamilton, 9 CI. & F. 327 ; Hantz v. Sealy, 6 Binn. 405 ; Robertson v. Cowdry, 2 West. Law Jour. 191; and in Bish. supra. Bissell v. Bissell, 55 Barb. 325, shows an interesting state of facts, upon which it was decided that the marriage was valid. See Commonwealth v. Stump, 53 Penn. St. 132 ; Sapp v. Newsom, 27 Tex. 537. The presumption of law is in favor of regarding cohabitation and like circumstances as an indica- tion of marriage ; but of course the presumption may be overthrown by counter evidence. Myatt v. Myatt, 44 111. 473 ; Blackburn v. Crawfords, 3 Wall. 175 ; Goldbeck v. Goldbeck, 3 C E. Green, 42. [42] MARRIAGE. ♦ 42 wards actually do cohabit. But in this class of eases it is requisite that the promise de futuro should be absolute and mutual. Mere courtship does not suffice, though followed by- carnal intercourse.^ Nor in general do words of promise with immoral conditions annexed. It is not clear whether cohabi- tation after verba de futuro raises a conclusive presumption of marriage at law or not : the more reasonable doctrine, however, is that it * does not, and that the intent of the * 43 parties may be shown as in other cases. But innocence will be inferred, if possible, rather than guilt.^ So it has been said that where a legal impediment exists to a marriage between persons living in licentious intercourse, as the im- pediment sinks the status rises.^ In New York, this doctrine of marriage by words de futuro is utterly repudiated, and it is maintained that informal marriages were unknown to the English common law.* This last has been long a mooted point in the courts, and will ever remain so ; but whatever may have been the historical fact, certain it is that the neces- sity of a more formal observance of marriage has been almost universally recognized ; and the very words, " marriage in the sight of God," so familiar to the readers of the Scotch matri- monial law, not only import the peculiar embarrassments which attend the justification of such loosely contracted alli- ances before the world, but attest the solemn character of this institution. All the learning of informal marriages was swept out of the English courts when formal religious celebration was . 1 Reid V. Laing, 1 Shaw Ap. Cas. 440 ; Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 591 ; 1 Fras. Dom. Eel. 188 ; Reg. v. Millis, 10 CI. & F. 534, 780; Duma- resly v. Fishly, 3 A. K. Marsh. 368 ; 1 Bish. INIar. & Div. 5th ed. §§ 253-2G5, and other cases cited. 2 See Cheney v. Arnold, 15 N. Y. 345 ; Duncan v. Duncan, 10 Ohio St. 181 ; and comments of Mr. Bishop, supra, §§ 255-2o8 ; Reg. v. Millis, 10 CI. & F. 534 ; Swinb. Spousals, 2d ed. 225, 226 ; Robertson v. State, 42 Ala. 509. 3 1 Bish. Mar. & Div. 5th ed. § 248. See Breadalbane Case, L. R. 1 II. L. (Scotch) 182. * Cheney v. Arnold, 15 N. Y. 345. But see Bissell v. Bissell, 55 Barb. 325. Maryland repudiates the doctrine of informal marriages. Denison v. Dcnison, 35 Md. 361. And see Holmes v. Holmes, 1 Abb. (U. S) 525; Estill v. Rogers, 1 Bush, 62. The opinion of Lord Stowell in the case of Dalrymple v. Dalrymple, to which we have alluded, is an admirable exposition of the law of informal marriages. It is a masterpiece of judicial eloquence and careful research. [43] * 43 HUSBAND AND WIFE. prescribed by positive statute. Ceremonials had long been required by those canons upon which the ecclesiastical law was based. Lord Hardwicke's Act, passed in the reign of George 11.,^ is the most famous of these statutes. This act required all marriages to be solemnized in due form in a parish church or public chapel, with previous publication of the banns ; and marriages not so solemnized were pronounced void, unless dispensation should be granted by special license. * 44 Some harsh * provisions of this act were relaxed in the reign of George IV., but soon re-enacted.^ More recent legislation permits of a civil ceremonial before a register, to satisfy such as may have conscientious scruples against mar- riage in church.^ Such, too, is the general tenor of legislation in this country ; the law justly regarding civil observances and public registration sufficient for its own purposes, while human nature clings to the religious ceremonial.^ Either celebration before a clergyman or in presence of such civil officers as the statute may designate is therefore at the option of parties choosing at the present day to marry. This is the law of England and America. And the only controversies ever likely to occur in our courts would be where the language of the statutes in some particular State left it doubtful whether marriages celebrated informally were to be considered absolutely null. It is to be borne in mind that Lord Hardwicke's Act is of too recent a date to be con- sidered as part of our common law. Was, then, marriage in facie ecclesice essential in England before the passage of this act ? It is admitted that the religious marriage celebration was customary previous to the Reformation. It is further allowed that the church, centuries ago, created an impedi- 1 26 Geo. 2, c. 33 (1753). 'i 8 Geo. 4 ; 4 Geo. 4, c. 76. 3 See 6 & 7 WiU. 4, c. 85 & c. 88 ; 7 Will. 4, and 1 Vict. c. 22, and 3 & 4 Vict. c. 92. < See 2 Kent Com. 88-90 ; 1 Bish. Mar. & Div. 5th ed. § 279. The tendency of the courts, in construing marriage statutes, appears to be to uphold the mar- riage, if possible, notwithstanding the non-compliance of parties with such requirements as those of license or registry. See Sichel v. Lambert, 15 C. B. N. s. 781 ; Askew v. Dupree, .30 Geo. 173 ; Blackburn v. Crawfords, 3 Wall. 175; Campbell v. Gullatt, 43 Ala. 57. [44] MARRIAGE. * 44 ment, now obsolete, called " precontract," the effect of which was that parties engaged to be married were bound by an indissoluble tie, so that either one could compel the other to submit at any time to the ceremonial marriage. But whether precontract rendered children legitimate, and carried dower, curtesy, and the other incidents of a valid marriage, is not clear. In 1844, the question whether at the common law a marriage without religious ceremony was valid Avent to the English House of Lords, and resulted in an equal division.^ And, curiously enough, such was the fate of a * similar * 45 case in this country before the highest tribunal in the land.2 So that we may fairly consider the law on this point as for ever unsettled.^ Among most nations and in all ages has the celebration of marriage been attended with peculiar forms and ceremonies, which have partaken more or less of the rehgious character. Even the most barbarous tribes so treat it where they hold to the institution at all. The Greeks offered up a solemn sacri- fice, and the bride was led in great pomp to her new home. In Rome, similar customs prevailed down to the time of Tiberius. Marriage, it is true, degenerated afterwards into a mere civil contract of the loosest description ; parties being permitted to cohaljit and separate with almost equal freedom.* The early Christians, there is reason to suppose, treated mar- riage as a civil contract ; yielding perhaps to the prevailing Roman law. Yet the teachings of the New Testament and church discipline gave peculiar solemnity to the relation. And religious observances must have prevailed at an early 1 Reg. V. Millis, 10 CI. & F. 534. 2 Jewell V. Jewell, 1 How. (U. S.) 219. •• See full discu.ssion of this question with authorities in note to 2 Kent Com. 87 ; also in 1 Bish. Mar. & Div. §§ 269-282. The American doctrine is, that the intervention of one in holy orders was not essential at common law. This is the view of Chancellor Kent, Judge Reeve, and Professor Greenleaf, as expressed in their respective text-books ; also the general current of American decisions. Mr. Bishop confirms these conclusions while suggesting new reasons. Such a rule however is not in conflict with the statement of the text. See 1 Bish. Mar. & Div. 5th ed. §§ 279-282, and decisions collated ; 2 Kent Com. 87 ; Reeve Dom. Rel. 195 d seq. ; 2 Greenl. Ev. § 460. * Smith's Diet. Antiq. " Marriage." [45] * 45 HUSBAND AND WIFE. date ; for in process of time marriage became a sacrament. In England, centuries later, it needed only Lord Hardwicke's Act to apply statute law to a universal practice; and al- though, in the time of Cromwell, justices of the peace were permitted to perform the ceremony, popular usage by no means sanctioned the change. Informal marriages are uncom- mon even in Scotland where the civil law prevails. In our own country, it is not surprising that local jurisprudence * 46 should have exhibited some signs of reaction * against ancient canon and kingly ordhiance. Yet even with us, the almost universal custom repudiates informal and civil observances ; and, secured in the privilege of choosing prosaic and business-like method of procedure. Christian America yields its testimony in favor of marriage in facie ecclcsice.^ The consent of parents or guardians was not necessary to perfect a marriage at the common law. But Lord Hard- wicke's Act made the marriage of minors void without such consent first obtained.^ This proved intolerable. A bona fide and apparently regular marriage was in one instance set aside, after important rights had intervened, for no other cause than that an absent father, "supposed to be dead, but turning up unexpectedly, had failed to bestow his permission, and the mother had acted in his stead.^ Gretna Green marriages, on Scotch soil, became the usual recourse for children with unwilling protectors. The law was afterwards modified so that without the requisite consent, marriages, although for- 1 See 2 Kent Com. 89, and authorities cited. We do not mean to imply that marriage is a sacrament, or that religious cere- monies are essential to its due observance. We are speaking only of tlie univer- sal testimony as to the fitness of peculiar and in general religious observances. Judge Reeve, exhibiting his contempt for " Popish " practices, says, " Tliere is nothing in tlie nature of a marriage contract that is more sacred than that of other contracts that requires the interposition of a person in holy orders, or tliat it should be solemnized in church." Reeve Dom. Rel. 196. At the time he wrote, was not the practice prevailing in New England contrary to his theory, as it was before and as it remains still ? And who has ever proposed in modern times to perform a business contract in church 1 2 26 Geo. 2, c. 33. See 2 Kent Com. 85; Rex v. Hodnett, 1 T. R. 96 ; 1 Bish. Mar. & Div. 5th ed. §§ 293-295, and cases cited. 3 Hayes v. Watts, 2 Phillim. 43. [46] MARRIAGE. * 46 bidden, might remain valid.^ And these features are found to characterize the marriage acts in the different States of this country.2 * Clandestine marriages are doubtless * 47 to be discouraged, and the law will willingly inflict pen- alties upon clergymen, magistrates, and all others who aid the parties in their unwise conduct ; but experience shows that legislation cannot safely interpose much farther. Defective marriages have in some instances been legalized by statute ; as where parties within the prohibited degrees of consanguinity or affinity have united. So with marriages before a person professing to be a clergyman or justice of the peace, but without actual authority. On principle, there seems no reason to doubt that any government, through its legislative branch, may unite a wiUing pair in matrimony, as well as pass general laws for that purpose.^ But though legislative divorces are not unfrequent, a legislative marriage is something unknown, not to say uncalled for. A few words may be added concerning the confl.ict of laws relating to marriage. In England, such cases do not often come before the courts ; but with us they are very common, the more so as each State adopts its own system concerning marriage and divorce. Marriage is favored beyond ordinary contracts in all nations. It is a well-recognized rule that a marriage lawful where celebrated is lawful everywhere ; and that a marriage unlawful where celebrated is unlawful every- where.'* This rule, public policy, common moraUty, and the 1 Rex V. Birmingham, 8 B. & C. 29 ; Shelf. Mar. & Div. 309-322 ; Stat. 4 Geo. 4, c. 76. 2 1 Bish. Mar. & Div. §§ 341-347, and cases cited ; Smyth v. State, 13 Ark. 696; Wyckolf v. Boggs, 2 Halst. 138; BolUn v. Shiner, 2 Jones (Pa.), 205; and see AVood y. Adams, 36 N. 11. 32; Kent v. State, 8 Blackf. 1G3 ; Fitz- patricku. Fitzpatrick, (J Nev. 63; Adams v. Outright, 63 111. 361; State v. Dole, 20 La. Ann. 378. Tiie language of some statutes leaves the point in doubt as to whether marriages without the consent of parents renders the marriage void or only subjects offending parties to a penalty. ji Brunswick v. Litchfield, 2 Greenl. 28 ; Moore v. Whitaker, 2 Harring. 60 ; Goshen v. Richmond, 4 Allen, 458; 1 Bish. Mar. & Div. 5th ed. §§ 657-059. As to the effect of a Texas statute, which rela.xed old requirements in legalizing an r regular marriage, see Rice t'. Rice, 31 Tex. 174. * Story Contl. Laws, §§ 79-81 ; 2 Kent Com. 91 ; Scrimshirc v. Scrimshire, [47 1 * 47 HUSBAND AND WIFE. comity of nations demand, shall be enforced. Even when parties leave their own State or country, for the express pur- pose of evading the legal requirements, marry abroad, and then return, the marriage is to be sustained. This doctrine was very liberally applied in England, when the famous Gretna Green method of union was pronounced indissoluble.^ * 48 So in this country, * where persons disqualified by the laws of their own State, cross over into another.^ In all such cases, the principle of ordinary contracts is disre- garded, and the lex loci contractus is permitted to prevail over the lex domicilii. But this doctrine, although favored by most writers on public law, has not received their unanimous sup- port. Huberus, a continental jurist, maintained — contrary to the view afterwards expressed in Compton v. Bearcroft, by the English courts — that where parties go to a foreign country, in order to evade their own laws which require the assent of parent or guardian, their marriage should be deemed invalid ; for, he observes, such acts tend ad eversionem juris., and should not be encouraged.^ This opinion finds favor in France and Holland. And there is a statute in Massachusetts to the same purport.^ But Compto7i v. Bearcroft is good law in England and most parts of the United States.^ There are exceptions to the rule of comity. Among them 2 Hag. Con. 395 ; Harford v. Morris, 2 Hag. Con. 423 ; Lord Tenterden, in Lacon v. Higgins, 3 Starkie's N. P. Cases, 178 ; Simonin i-. Mallac, 2 Swab. & T. 67. 1 Compton V. Bearcroft, Bui. N. P. 114 ; 2 Hag. Con. 443. "Where parties married in Scotland and went through a second marriage ceremony in Bel- gium, a Belgian divorce whicli purported to affect the Belgian marriage alone was held to leave the Scotch marriage subsisting. Birt v. Boutinez, L. K. 1 P. & D. 437. 2 Stevenson v. Gray, 17 B. Monr. 193 ; 1 Bish. Mar. & Div. 5th ed. § 355, and American cases cited. 3 De Conflictu Legura, § 8. See other authorities cited to the same conclu- sion in Story Confl. Laws, § 123. Chancellor Kent intimates his disapproval of the doctrine of Compton v. Bearcroft. Note to 2 Kent Com. 91. Burge, in 1 Col. «Sb For. Laws, 194, attempts to reconcile the views of Huberus with the English rule. * See Commonwealth v. Hunt, 4 Cush. 49. 5 Swift V. Kelly, 3 Knapp, 257 ; Morgan v. McGhee, 5 Humph. 13 ; Wall v. Williamson, 8 Ala. 48; Patterson v. Gaines, 6 How. (U. S.) 5.50; Phillips v. Gregg, 10 Watts, 158 ; Fomstill v. Murray, 1 Bland, 479 ; 1 Bish. Mar. & Div. 6th ed. § 356. [48] MARRIAGE. * 48 are to be classed immoral marriages, — or such as may be considered prohibited by the law of God. No Christian nation would tolerate polygamy within its borders on the plea that the marriage took place in some Asiatic country. Nor would incest be permitted.^ Nor, we apprehend, would the mar- riages of such as are mentally and physically incapable. In Conway v. Beazley, the EngHsh courts refused to recognize a Scotch divorce, and set aside a second marriage ; but the facts showed * a clear case of bigamy .2 Some difficulties * 49 must doubtless arise under the conflict of American local statutes relative to the impediments which follow a complete divorce.'^ The reasoning of Lord Chancellor Campbell and other peers in the recent English case of Brook v. BrooTc^ which went on appeal to the House of Lords, would seem to carry the exception to the rule of comity so far as to include not only immoral marriages but marriages in violation of a law of domicile which absolutely forbids such unions every- where.'* The point actually sustained however in this case was the invahdity of a marriage by affinity in a foreign coun- try, where such marriages are lawful ; but which have always been regarded as within the prohibition of God's law in Eng- land. The doctrine claimed, therefore, seems in reality that each nation shall define God's law for itself. The lex loci contractus^ we may remark in passing, does not seem of neces- sity to determine such legal consequences of a foreign marriage as the legitimation of antenuptial offspring.^ A marriage invalid where celebrated is as a rule invalid everywhere. But this principle being unfavorable to mar- 1 Hyde v. Hyde, L. R. 1 P. & D. 130; Story Confl. Laws, § 114; 1 Burge Col. & For. Laws, 188; 1 Blsh. Mar. & Div. 5th ed. §§ 372-376. 2 3 Hag. Ec. 639 ; 5 Eng. Ec. 242. See also recent cases of Shaw v. Gould, L. R. 3 H. L. 55; Wilson's Trusts, L. R. 1 Eq. 247. 3 See Williams v. Gates, 5 Ire. 535; Dickson v. Dickson, 1 Yerg. 110; Pons- ford V. Johnson, 2 Blatch. 51; Smith v. Woodworth, 44 Barb. 198. * 3 Smale & G. 481 ; s. c. 9 H. L. Gas. 193. See Sutton v. Warren, 10 Met. 451 ; Stevenson v. Gray, 17 B. Monr. 193. 5 Putnam v. Putnam, 8 Pick. 433. See on this general subject Lord Brough- ham in W^irrender v. Warrender, 2 01. & E. 488 ; cases cited in note to 2 Kent Com. 93 ; references supra to treatises of Story, Burge, and Bishop. The marriage abroad of one attainted of treason is lawful. Kynnaird v. Leslie, L. R. 1 C. P. 389. 4 [49] * 49 HUSBAND AND WIFE. riao-e, is applied with more hesitation than its converse.^ Citizens sojourning abroad, parties made amenable to the general laws of another country, and yet retaining customs of their own, quasi foreigners who do not forfeit their original allegiance, often have special privileges shown them by the comity of nations. Thus, Protestants in a Roman * 50 Catholic country have been allowed * to marry after their own forms.^ Settlers from foreign parts are often permitted to take their national customs with them.^ There are statutes, both in Great Britain and the United States, which permit citizens to marry abroad in presence of certain accredited representatives of their government, as ministers and consuls ; and such marriages are considered lawful, though one of the parties be a foreigner.^ Whatever may be pronounced by the courts in the adopted country of an emi- grant, a marriage lawful by the laws of his native land would in his native land generally be upheld, if he had not forfeited his allegiance. 1 Lord Stowell, in Ruding v. Smith, 2 Hag. Con. 371; 4 Eng. Ec. 551, 560. - But tliis seems permitted only on the assumption that the local law disqual- ifies. See 1 Bish. Mar. & Div. 5th ed., with authorities cited, § 390 el seq. ; Kent V. Burgess, 11 Sim. 361 ; Lord Eldon, in Lord Cloncurry's Case ; Cruise on Digni- ties, 276. 3 See Ruding v. Smith, and 1 Bish. Mar. & Div. supra; Story Confl. Laws, §2 a. * Lloyd V. Petigean, 2 Curt. Ec. 251; 7 Eng. Ec. 105; Loring v. Thorndike, 5 Allen, 257 ; 12 U. S. Stats, at Large, 79 ; 1860, c. 179, § 31. Invading armies carry the matrimonial law of their domicile with them. See 1 Bish. JNIar. & Div. 5th ed. §§ 399, 400 ; Ruding v. Smith, supra ; Lord Ellenborough, in Rex v. Brampton, 10 East, 282. See also, as to the conflict of laws relating to marriage, Wharton Confl. Laws (1872), §§ 128-165. Mr. Wharton, in his very scholarly work, maintains that tiiere are three distinct theories on this subject: (1st) as generally main- tained by English writers and the courts, that matrimonial capacity is deter- mined by the law of the place of marriage ; which he considers open to objection ; (2d) that it is determined by the law of the marrying parties' home; which he also considers open to objection; (3d) that as to marriages at home, capacity is determined by home law, and as to marriages abroad, " by the common law of Christendom ; " and this last theory he prefers to the otliers. lb. §§ 160-165. As to conflict in the mode of celebrating marriage, see ib. §§ 169-185. [50] THE GENERAL DISABILITIES OF COVERTURE. * 51 * CHAPTER II. *51 THE GENERAL DISABILITIES OF COVERTURE. When the parties to a lawful marriage have once completed the ceremony, or, as it is said, have executed the contract of marriage, they are admitted into the marriage relation, and their mutual rights and obligations become at once bounded, protected, and enforced by the general law of husband and wife. What that law is, will constitute the topic of discus- sion in this and the succeeding chapters. We have already alluded to the confusion and uncertainty which exist at the present day, and particularly in many of the United States, in the law of husband and wife, owing to the transition period through which we seem to be passing from the marriage rela- tion of the common law to that known to the civil law.^ Our subject will be most conveniently treated by taking up the common-law doctrine first and thoroughly examining its principles ; then passing to the modern or civil-law doctrine, for discussion in Hke manner. First, then, the rights and dis- abilities of marriage on the coverture scheme ; secondly, the rights and disabilities of marriage on the separate existence scheme. But since these rights and disabilities have varied little, except as to the wife's property, we may here investi- gate those general principles of the common law which con- cern the person, once and for all. The general principle of coverture, as defined by Black- stone and other wiiters, is this : that by marriage the hus- band and wife become one person in law ; that is to say, the very being or legal existence of the woman is suspended during the * marriage, or, at least, is incorporated and * 52 consolidated into that of the husband, under whose 1 See Introductory Chapter, pp. 10-2L [51] * 52 HUSBAND AND WIFE. wing, protection, and cover she performs every thing ; and is therefore called in the law-French a feme-covert^ fcemina viro co-operta ; is said to be covert-haron, or under the protection and influence of her haron or lord ; and her condition during her marriage is called her coverture} For this reason the term applied to the relation of husband and wife in the old books is haron and feme. Upon this fundamental principle depend, at the common law, the general rights, duties, and disabilities of marriage. But this very definition shows inac- curacy, to say nothing of unfairness of application. Here are two conflicting notions : one that the existence of the wife is actually lost or suspended ; the ether that there is still an existence, which is held in subordination to the will of her lord and master, which last the word coverture fitly expresses. It will appear in fact that Avhile some of the wife's disabilities seem based upon the one notion, others are based upon the latter, and probably more correct one. The wife's disabilities are deemed by Blackstone, " for the most part, intended for her protection and benefit." And he adds, by way of rhetor- ical period, " so great a favorite is the female sex of the laws of England ! " a proposition which his commentators have gravely proceeded to dispute and dissect, and, it must be added, not without good success.^ The husband's right of dominion is therefore fully recog- nized at the common law. And never was the English doctrine, despite its failings, set forth in more terse and forcible lan- guage than in the words of Sir Thomas Smith : " The natu- ralest and first conjunction of two towards the making a further society of continuance, is of the husband and wife, each having care of the family: the man to get, to travel abroad, and to defend ; the wife to save, to stay at home, * 53 and to distribute * that which is gotten, for the nurture of the children and family ; which to maintain, God has given the man greater wit, better strength, better courage, to 1 1 Bl. Com. 442; Co. Litt. 112; 2 Kent Com. 129. '^ 1 Bl. Com. 445, notes by Christian, Hargrave, and others. It is probable that Bhickstoiie used this expression in a strain of phiyful gallantry', not uncom- mon with lecturers. Even Chancellor Kent's observations are not free from suspicion. See 2 Kent Com. 182, closing sentence at foot of the page. [62] THE GENERAL DISABILITIES OF COVERTURE. * 53 compel the woman to obey, by reason or force ; and to the woman, beauty, -fair countenance, and sweet M'ords, to make the man obey her again for love. Thus each ol)eyeth, and commandeth the other ; and they two together rule tlie house, so long as they remain in one." ^ In accordance Avith these principles, and perhaps too the laws of nature and divine revelation, the husband is the head of the family and the dignior persona. As to the more strictly personal consequences of the marriage union, his rights and duties have suffered no violent change at our modern law. It is for the wife to love, honor, and obey : it is for tlie husband to love, cherish, and protect. The husband is bound to fur- nish his wife with a suitable home ; to provide, according to his means and condition of life, for her maintenance and support ; to defend her from personal insult and wi'oug ; to be kind to her ; to see that the offspring of their union are brought up with tenderness and care ; and generally to con- duct himself, not according to the strict letter of the matri- monial contract, but in its spirit. So long as he does this, his authority is acknowledged at the common law, and if the wife's wishes and interests clash with his own, she must yield. Marriage necessarily supposes a home and mutual cohabita- tion. Each party has therefore a right to the society of the other. They married to secure such society. And the obliga- tion rests upon both to live togetlier — or, as the expression sometimes goes, to adhere. This is the universal law.^ Its observance is essential to the mutual comfort of husband and wife, and the well-being, if not the existence, of their chil- dren. But to this rule there are obvious exceptions. The wife is not bound to live with her husband, where he is imprisoned, or * has otherwise ceased to be a voluntary * 54 agent, and to perform the duties of a husband. Nor if he is banished ; for marriage does not force the parties to share the punishment of one another's crimes. This was the rule of the civil as it is that of the common law.^ And in general 1 Commonwealth of England, Book 1, cli. 2, qnoted in Bing. Inf. & Cov. p. 184. 2 1 Eras. Dom. Rel. 447, 452. » Co. Litt. 133; 1 Bl. Cora. 443; 1 Eras. Dom. Rel. 448; 2 Kent Com. 154. [53] * 54 HUSBAND AND WIFE. such causes as would justify divorce in any state justify the innocent party in breaking off matrimonial cohabitation like- wise. But partial and temporary separation for purposes connected with the husband's profession or trade — as for instance, where he is an army officer — constitutes no breach of the marriage relation, unless continued beyond necessary and reasonable bounds, or accompanied by negligence to pro- vide while absent for the maintenance of wife and family. And under some other circumstances cohabitation maj' be properly allowed to cease for a time, without involving the breach of marital obligations.^ Mere frailty of temper on a wife's part, not shown in marked and intolerable excesses, would hardly justify a husband in withdrawing the protection of his home and society .2 As there must be a home, so there is also a matrimonial domicile of the parties recognized by universal law. And the husband, as the dignior persona, has the right to fix it where he pleases. The wife's domicile merges in that of her hus- band. Grotius says : " De clomicilio constituere jus est marito.''^ ^ But this applies only to the real domicile of the husband ; not to a fictitious place of residence which he may take up for a special purpose, or as an involuntary agent. In a genuine sense the domicile of the husband becomes that of the wife, and wherever he goes she is bound to go likewise ; not, how- 1 See 2 Kent Com. 181 ; 1 Fras. Dom. Rel. 240 et seq. ; ib. 447 ; Chretien v. Her Husband, 17 jNIartin (La.), 60. Prima facie, when the wife leaves her hus- band and his home, and goes to live elsewhere, she abandons him, and it is for her to show that his conduct justified her in going. Starkey v. Starkey, 21 N. J. Eq. 135. A husband who witlidraws from cohabitation with his wife may be guilty of desertion though he continue to support her. Yeatman v. Yeatman, L. R. 1 P. & D. 489. See more fully 1 Bish. Mar. & Div. §§ 771-810, where the whole subject comes up as incidental to divorce proceedings ; McClurg's Appeal, 66 Penn. St. 366. And see IMcCormick v. McCormick, 19 Wis. 172, where it did not appear that the wife meant to leave her husband, or was unwilling to cohabit, but only objected to those he had about him, while he was at fault in encouraging iier to leave him. As to whether the mere refusal of matrimonial intercourse amounts to desertion justifying divorce, see 1 Bish. Mar. & Div. § 778 ; Southwick v. Southwick, 97 Mass. 327. - Yeatman v. Yeatman, L. R. 1 P. & D. 489. But see Lynch v. Lynch, 33 Md. 328. [54] THE GENERAL DISABILITIES OF COVERTURE. * 54 ever, unless his intent be bona fide and without fraud upon her property rights.^ Any contract, therefore, which the husband may make with his wife or her friends, before marriage, not to take her away from the neighborhood of her parents, is void. Public policy repudiates all contracts in restraint of such marital rights. There might be circumstances under which such a promise would be reasonable, but at best it can create a moral obligation * only. The husband has the right to estab- * 55 lish his domicile at any time, wherever he pleases, and the wife must follow him through the world.^ But the courts of our day hesitate to apply a rule so appar- ently harsh as that announced in the last sentence. With the increasing regard for female privileges has grown up a strong disposition to reduce the husband's right over the matrimonial domicile to a sort of clivisiim im2yerii(7n. The question is not new, whether reasonable exceptions to this rule may not exist ; as, for instance, where the husband proposed to take the wife into an enemy's country while war was waging, or on a journey perilous to her life.^ Such exceptions may be jus- tified, it is generally admitted, on the ground that the wife would be thereby exposed to bodily harm. But, whether the apprehension be that of personal violence, or ill health from the fatigue of a journey or the change of climate, little favor seems to have been shown to the wife either at the English or Scotch law, unless the circumstances rendered a change of domicile on her part equivalent to a moral suicide.^ At the present day, a rule less stringent would doubtless be applied. Nay more, there are several recent decisions in this country which point to an obligation on the husband's part to show reasonable cause why his wife should follow him wlien he changes his abode.* 1 1 Eras. Dom. Eel. 447, 448; 1 Biirgo Col. & For. Laws, 260; Wharton Confl. Laws, §§ 43-47. See post, as to domicile acquired by wife for divorce in certain cases. ■^ Hair D. Hair, 10 Rich. Eq. 1G3; McAfee v. Kentucky University, 7 Bush, 135. A wife living apart from licr husband cannot liave a separate domicile for testamentary purposes. Paulding's Will, 1 Tuck. (N. Y.) 47. i See 1 Eras. Dom. Rel. 448. , 4 Bishop V. Bishop, 30 Penn. St. 412 ; Gleason v. Gleason, 4 Wis. ^A ; PoweU [55] * 55 HUSBAND AND WIFE. This later uncertainty in the Law is unfortunate. Where a pair disagree in the choice of a home, either the right of decision must belong to one of them or the court should sit as umpire. No one has suggested that the wife should choose the domicile, nor can judicial interference be well called in, except to divorce the parties. Yet, without a home in com- mon, of what avail is matrimony ? We cannot but regret that any of our courts should seem to legalize domestic discord ; that there should be good American authority to sanc- * 56 tiou the wife's refusal * to accompany her husband on any such trivial pretext as " the dislike to be near his relatives."! Perhaps, however, the harsh remedy usually sought to be applied in modern cases — divorce for the wife's wilful desertion — may tempt our tribunals to relax the old doctrine of conjugal obedience for her benefit. For, after all, the decision is in favor of prolonging the marriage relation. The English rule as to the wife's duty of adherence still continues strict. A wife recently petitioned for divorce, on the ground of her husband's desertion. The facts showed that shortly after her marriage she went with her husband to Jamaica, where he held an appointment from which he derived not more than .£100 a year, and in consequence of his slender income she had to put up with some hardship. Her health suffered, and in less than a year, namely, in 1846, she returned to England. Her husband continued abroad, during the greater part of the time at Jamaica, where he succeeded in getting a more lucrative appointment. When she left him for England he acted kindly to her, promised to allow her <£30 a year, but made no arrangement for a permanent separa- tion. Their correspondence continued until 1851, when the husband asked her to return, and provided funds for her pas- sage, but she wrote that her health would not permit her to do so. Here all the correspondence and intercourse ceased until 1856, when an allowance was again effected through the intervention of a relative ; this the husband continued until 1860, and then stopped it. He appears to have led a loose r. Powell, 29 Vt. 148. See Moffatt v. Moffatt, 5 Cal. 280; Cutler v. Cutler, 2 Brews. (Pa.) 511. 1 Powell V. Powell, supra. [56] THE GENERAL DISABILITIES OF COVERTURE. * 56 life after his wife's refusal to return. The court held that these circumstances did not constitute desertion on the hus- band's part, nor entitle her to divorce.^ As no legal process can safely be enforced to compel hus- band and wife to live together, against the will of either, so the peace * of society forbids that they should sue * 57 one another for damages for breach of the marital obli- gations. Here again is marriage sui generis, and not like other contracts. But the failure of the one to perform recog- nized duties may sometimes absolve the other from certain corresponding obligations. Thus, if the wife leaves her home without justifiable cause, the husband may refuse to support her.2 If the husband is cruel, or makes his home unfit for a chaste woman to .live in (which is a species of cruelty), the wife may leave and compel him to support her elsewhere.^ This is well recognized law. In general, however, such vio- lation of marital obligations is effectually punishable, not by enforcing them, but by putting an end to the relation altogether.* Inasmuch as the husband is entitled to his wife's society, he may recover her from any person who would withhold or withdraw her from him. This is a well-understood principle the world over.^ And the common law gives him the right to sue for damages all persons who seek to entice her away.^ But in such cases malice and improper motive are always to be considered ; and parents and near relatives stand on a different footing from strangers. So is the previous conduct of the husband towards his wife a material element to be considered ; since this, and not the interference of others, 1 Keech v. Keecli, L. R. 1 P. & D. G41 (1868). Adultery being proved, how- ever, divorce was granted on tliat ground. •^ 2 Kent Com. 147 ; Manby v. Scott, 1 Mod. 124; 1 Bl. Com. 443. 8 Houliston V. Smyth, 3 Bing. 127. And see infra, as to wife's necessaries. * See 1 Bish. Mar. & Div. § 771; 1 Eras. Dom. Rel. 452; Adams i;. Adams, 100 Mass. 365 ; Briggs v. Briggs, 20 Mich. 34. 5 1 Eras. Dom. Rel. 240, 241. 6 1 Cliitty Plead. 91 ; Hutcheson v. Peck, 5 Johns. 196 ; Friend v. Thomp- son, Wriglit, 636; Rabe v. Hanna, 5 Ham. 630; Bennett v. Smith, 21 Barb. 439 ; Barnes v. Allen, 30 Barb. 663. [57] * 5T HUSBAND AND WIFE. may have occasioned the separation. It is one thing to ac- tively promote domestic discord, but quite another to har- bor from motives of kindness and humanity one who seeks shelter from the oppression of her own lawful protector. Yet such conduct, whatever the motives, is exceedingly peril- ous on the part of strangers, generally open to misconstruction, and never to be encouraged. They should leave the * 58 parties to * their lawful remedies against one another. With parents it is different. There are several cases in the American reports where a father is not only held to be absolved from liability for sheltering his daughter who has fled from a drunken and profligate husband, but even stimulated to do so. " A father's house," says Chancellor Kent, " is always open to his children ; and whether they be married or unmarried, it is still to them a refuge from evil and a conso- lation in distress. Natural aff'ection establishes and conse- crates this asjdum." ^ But this does not justify even a parent in hostile interference against the husband ; for the latter's rights are still superior ; and the father must give up his daughter, and the marriage-offspring, whenever she wishes to return, unless the proper tribunal has decreed otherwise ; though he might, we suppose, by fair arguments, urged to promote her true good, seek to dissuade her from returning. The legal doctrine seems to be this, that honest motives may shield a parent from the consequences of indiscretion, while adding nothing to his right of actual control ; that a husband forfeits his right to sue others for enticement, where his own misconduct justified and actually caused the separation, and so long as it continues voluntary on the wife's part ; but that otherwise his remedy is complete against all persons whomso- ever who have lent their countenance to any scheme for breaking up his household. A curious case of this sort came before the Supreme Court of North Carolina in 1849. The defendant had enticed away the wife of the plaintiff. The two afterwards entered into an agreement that the defendant should keep the plaintifi' 's wife and child at his own home, and should raise, educate, and 1 Hutcheson v. Peck, supra. See also Friend v. Thompson, Bennett v. Smith, supra. [58] THE GENERAL DISABILITIES OF COVERTURE. * 58 provide for the child b}' apj)ropriating the portion of property formerly intended for the mother's provision ; that he should not be liable for having enticed the wife away ; and that the plaintiff might visit his wife and child not exceeding four or * five days at a time. The wife was not made a * 59 party to the contract, though it appeared to have been made with her approval. The plaintiff afterwards rescinded the agreement, demanded his wife, and, upon refusal of the defendant to give her up, sued him in damages. The court sustained him; pronouncing the contract to be " neither in form or substance a contract for a sej)aration, but simply a license to harbor the wife and child, securing the defendant against any legal responsibility for so doing until withdrawn." And it was further intimated that such a contract was abso- lutely void as against public policy.^ In a ruder state of society the husband frequently main- tained his authority by force. The old common law recog- nized the right of moderate correction, which, according to Blackstone, was deemed a privilege by the lower orders in his day .2 The civil law went still further, permitting, in cer- tain gross misdemeanors, violent flogging with whips and rods.'^ But since the time of Charles II. the wife has been regarded more as the companion of her husband ; and this right of chastisement may be regarded as exceedingly ques- tionable at the present day. The rule of love has superseded the rule of force. Few cases of importance are to be found on this subject. In England, not many years ago, where a wife sought divorce from bed and board for cruelty, it was shown that the husband had spit upon her, pushed and dragged her about the room, and once slapped her face ; and upon this proof the divorce was granted.* The right to inflict corporal punishment upon the wife seems not to have been favored in this country, and its exercise would now generally 1 Barbee v. Armstead, 10 Ired. 530. See also 1 Burge Col. & For. Laws, 238, for a like doctrine at the civil law. ~ 1 Bl. Com. 444, 445. "' Flwjidlis et fustlhus acriter verherare ttxorem. See 1 Bl. Com. 445. * Saunders v. Saunders, 1 Rob. Ec. 549. And see 1 Bish. Mnv. & Div. 5th ed. §§ 748, 754 ; Giiolston ;;. Gliolston, 31 Geo. 625 ; Pillar r. Pillar, 22 Wis. C58; Edmonds' Appeal, 57 Penn. St. 232; Turner v. Turner, 44 Ala. 437. [59] *59 HUSBAND AND WIFE. justify proceedings for a divorce.^ It may be added that the wife should not chastise her husband ; nor provoke harsh * 60 treatment by her own misconduct.^ * But either spouse may use force in self-defence. And the husband may restrain his wife from acts of violence against others as well as himself ; certainly wherever the law makes him answerable in damages for her misbehavior.^ The right of gentle restraint over the wife's person rests upon better authority than that of chastisement. This right, however, depends upon the proposition that the husband is dignior persona. And its exercise is often to be justified in the courts on the same grounds ; namely, that he must answer to others for his wife's conduct. Blackstone says that in case of any gross misbehavior the husband can restrain his wife of her liberty. The later expression of Kent is, that he may resort to " gentle restraint." ^ Strong instances for the exer- cise of this right occur where the wife has eloped with a libertine and the husband wishes to bring her home, or where she purposes an elopement and he seeks to prevent it.^ So restraint may be justified where she becomes insane, threatens him with danger, or wantonly destroys his property. And by virtue of the husband's authority over his own household, he might be allowed, if not by physical force, at least by moral coercion, to regulate her movements so as to prevent her from going to places, associating with people, or engaging in pursuits disapproved by himself on rational grounds. This doctrine has been asserted in England ; and Mr. Fraser car- ries it to the extent of forbidding her relatives to visit her ; " for," he adds, " though' the wife may be very amiable, her 1 In State v. Rhodes, 1 Phill. (N. C.) 453, the right of moderate correction is recently claimed. But tlie opposite rule is announced in Fulgham r. State, 46 Ala. 143. Not justified though the wife be drunk or insolent. Common- wealth V. McAfee, 108 Mass. 458. 2 Knight V. Knight, 31 Iowa, 451, and cases supra; Prichard v. Prichard, 3 Swab. & T. 523. 3 2 Kent Com. 181 ; People v. Winters, 2 Parker (N. Y. Cr.), 10 ; 1 Bl. Com. 445; Richards v. Richards, 1 Grant, 389. 4 2 Kent Com. 181 ; 1 Bl. Com. 445. See 1 Bish. supra, § 756. 5 So strongly does the common law detest conjugal unfaithfulness, that the hv.sland who kills his wi^e or her paramour in the act of adultery is only guilty of manslaughter. See Regina v. Kelly, 2 Car. & K. 814. [60] THE GENERAL DISABILITIES OF COVERTURE. * 60 connections may not be so." ^ But this rule is to be laid down with great caution, and it may be considered especially unpopular in America. Mr. Justice Coleridge, in an English case, observes, that the husband's right must not be * exercised unnecessarily or with undue seventy; and * 61 that the moment the wife, by her return to conjugal duties, makes the restraint of her person unnecessary, such restraint becomes unlawful.^ For unreasonable and improper checks upon her liberties, the wife may have relief on habeas corpus. But the writ is not available for the husband to secure the person of his wife, voluntarily absenting herself from his hruse.'^ Husband and wife may be indicted for assault and battery upon each other."^ This is a means of redress not unfrequently sought against cruel husbands. The custody of children belonged at common law to the father. Blackstone observes, " A mother, as such, is entitled to no power, but only to reverence and respect." ^ But by an English statute, passed in 1839, the Court of Chancery is permitted to interfere and award the custody of children to such parent as may be deemed most suitable. Its special object was to enal)le married women who should be ill-treated by their husbands to assert their rights without the fear of being separated from their offspring.^ In this country, as we shall see hereafter, the tendency of legislation is to place the wife upon an equal footing with her husband in this respect. When we come to the property rights of married women, the inequalities of the common law are plainly seen. The i 1 Eras. Dom. Rel. 459. 2 In re Coclirane, 8 Dowl. P. C. 631. Force, whether physical or moral, sys- tematically exerted to compel the submission of a wife, in such a manner, and to such a degree, and during such a length of time as to injure her healtii and threaten disease, is legal cruelty. Kelly v. Kelly, L. II. 2 F. & D. 31 ; Bailey v. Bailey, 97 Mass. 373. •» Sandiland, Ex parte, 12 E. L. & Eq. 403. * Bradley v. State, Walker, 156 ; State v. Mabrey, 64 N. C. 692. 6 1 Bl. Com. 453. 6 2 & 3 Vict. c. 54 ; Warde v. Warde, 2 Ph. 786. See infra, Parent and Child, ch. 3, where this subject is considered at length. [61] * 61 HUSBAND AND WIFE. husband yields to his wife no participation whatever in his own property, whether acquired before or during the con- tinuance of the marriage relation, except a certain right of inheritance to his goods and chattels, of which he can gener- ally deprive her by his will and testament, and also dower in his real estate, which is her only substantial privilege. In return for this, she parts with all control, for the time being, over her own property, whensoever and howsoever obtained, bj^gift, grant, purchase, devise, or inheritance ; * 62 * gives him outright her things personal in possession ; allows him to appropriate to himself all outstanding demands, known in law as her choses in action^ or incorporeal personal property ; parts with the usufruct of her real estate, creating likewise a possible encumbrance upon it in the shape of tenancy by the curtesy ; and finally takes, if she survives him, only her real estate, such of her personal property as remains undisposed of and unappropriated, with a few articles of wearing apparel and trinkets called paraphernalia. She cannot restrain his rights by will. She is not allowed to ad- minister on his personal estate in preference to his own kin- dred, though the whole of it were once hers ; while he can administer on her estate for his own benefit and exclude her kindred altogether, even from participation in the assets. Thus unequal are the property rights of husband and wife by the strict rule of coverture. We speak not here of recent statutory benefits conferred upon the wife ; nor of that rehef which equity affords in permitting projDerty to be held to the wife's separate use, and giving her a provision from her choses in action, when the husband seeks its aid in appropriating them to his own use ; but of what is to be properly termed the common law of husband and wife.^ Some recompense is afforded to the wife for the loss of her fortune, in the rule that her husband shall pay her debts con- tracted while a feme sole ; that is, unmarried. And while coverture lasts he is liable for all just de])ts iiicurred in her support. He has even been held guilty of murder in the second degree wlien he has suffered her to die for w\ant of 1 See 1 Bl. Cora. 4-42-446, and notes, by Christian, Hargrave, and others ; 2 Kent Com. 130-143; and chapters infra. [62] THE GENERAL DISABILITIES OF COVERTURE. * 62 proper siiiDplies.^ The wife cannot make a contract so as to bind herself ; but in this, and other cases of express or implied authority, she can bind her husband, and so secure a main- tenance. That which cannot be enforced hy the wife as a matter of obligation is often attained at the common law in some indirect way.^ * So too the husband is liable for the frauds and inju- * 63 ries of the wife, committed during coverture ; being sued either alone or jointly with her, in accordance with the legal presumption of coercion in such cases. And he must respond in damages, whether she brought him a fortune by marriage or not. But this rule does not apply to crimes, excejjt that the law shows the wife a certain indulgence where a similar presumption can be alleged on her behalf. On the other hand, the husband takes the benefit of such injuries as she may suffer, by suing with her and appropriating the com- pensation by way of damages to himself.^ We ma}^ add that the wife is relieved of the disabilities of coverture and placed upon the footing of a feme sole ^ with the privilege to contract, sue and be sued, on her own behalf, in one instance, namely, where her husband has abjured the realm or is banished ; for he is then said to be dead at the law."^ And the necessity of the case furnishes tlie strongest argument for this exception. Some of the disabilities of the marriage relation are f)laced upon both parties at the common law ; partly because of the want of mutuality where coverture exists ; partly from considerations of public policy. Tlius husband and wife can- not make gifts or sales to one another during coverture, though the same parties might have done so before and in contemplation of marriage. Nor can they in other respects contract or enter into covenants with one another.^ Nor can 1 Reg. r. Plummer, 1 Car. & K. 600. 2 Ch. 3, infra. See 1 Bl. Com. 442 ; 2 Kent Com. 143-14 See ibid. ; and Lord Mansfield, in Bentley v. Cooke, 3 Dougf. 422 ; 1 East P. 0. 455. But see Lord Thurlow, in Sedgwick v. Walkins, 1 Ves. 49. In a prosecuti(m against a wife and her paramour for adultery, tlie husband may tes- tify against tlie wife. State v. Bennett, 31 Iowa, 24. Wife allowed to testify against husband for using instrument with intent to procure her miscarriage. State V. Dyer, 59 Me. 303. See also Matthews v. State, 32 Te.x. 117. ■J 1 Greenl. Evid. § 345, and authorities cited ; contra, 4 Bl. Com. 29. 5 [65] * 65 HUSBAND AND WIFE. testimony has been admitted as to some peculiar secret facts. ^ Dying declarations of one are admissible to charge the other with murder. And in collateral proceedings, only remotely aftecting their mutual interests, their evidence is admissible though it may tend to criminate or contradict or subject the other to a legal demand ; as in a suit relating ^to a pauper set- tlement, where the wife's testimony tends to convict her hus- band of bigamy.^ Or, in collateral proceedings, to prove the fact that they were husband and wife at a certain time.^ * GG To this we may add, that the wife's declarations * may be given in evidence for or against her husband, where material, as part of the res gestce ; as in a suit regarding an insurance policy where she is the party insured ; in an action against the husband for her board, he having turned her out of doors ; and, in general, wherever she acts as his agent.^ Where several are tried together for a joint offence, the wife of one is not a good witness against the others, so long as her testimony might affect her husband's case ; but if he has already been convicted or acquitted, or the grounds of defence for each are entirely distinct, the rule is otherwise.^ Both husband and wife may testify, after the relation has termi- nated, as to facts which came to each other's knowledge by means equally accessible to any person not standing in that relation ; for here the same principle applies as in the case of privileged communications between attorney and client.*^ There have been some important changes introduced into 1 Kex V. Eeading, cas. temp. Hardw. 79, 82; Katcliff v. Wales, 1 Hill, 63; 1 Greenl. Evid. § 344. 'i 1 Greenl. Evid. § 342; Fitch v. Hill, 11 Mass. 280; Griffin d? Brown, 2 Pick. 308 ; 2 Stark. Evid. 401. And see Fraim v. Frederick, 32 Te.K. 204. 3 Leapliart v. Lenphart, 1 S. C. n. s. 190. See Leigliton v. Sheldon, 16 Minn. 243; Denison v. Denison, 35 Md. 361. 4 See Averson v. Lord Kinnaird, 6 P'ast, 188 ; Walton i-. Green, 1 Car. & P. 621 ; Thomas v. Hargrave, Wriglit, 505 ; and other cases cited in note to 1 Greenl. Evid. § 342. But see Brown v. Laselle, 6 Blackf. 147. 5 Hall P. C. 301 ; Dalt. Just. c. Ill ; 1 Greenl. Evid. § 335, and notes ; 1 Phil. Evid. 75 n. ; Regina v. Williams, 3 Car. & P. 658 ; Hex r. Locker, 5 Esp. 107. The husband of one ciiarged as an accessory is not a competent witness in favor of one ciiarged as the principal. State v, Ludwick, Phill. (N. C.) 401. And see Blake v. Lord, 16 Gray, 387 ; State v. Mooney, 64 N. C. 54. s 1 Greenl. Evid. §338; Coffin v. Jones, 13 Pick. 446; Williams v. Baldwin, 7 Vt. 506 ; Cornell v. Vanartsdalen, 4 Barr, 304 ; English v. Cropper, 8 Bush, 292. [66] THE GENERAL DISABILITIES OF COVERTURE. * QQ the law of evidence in some parts of this countiy by statute ; such as permitting interested persons to testify in their own suits. Where the okl doctrine prevails, the exclusion of the husband, by reason of direct interest, operates to exclude his wife likewise.^ So the husband cannot be a witness in a con- troversy respecting his wife's separate estate, though in respect to other parties concerned he might be competent.^ The Eng- lish Evidence Act of 1853, 16 & 17 Vict. c. 83 (which has been substantially enacted in some parts of this country), renders husbands and their wives competent and compellable witnesses for each other, except in criminal cases and in cases of adultery ; * but neither shall be compelled to dis- * 67 close communications made during marriage.^ Story, in his Conflict of Laws,* after an extended discussion So as to communications not confidential but evidently designed to he made public. Crook v. Henry, 25 Wis. 569. 1 1 Greenl. Evid. § 341 ; Ex parte Jones, 1 P. Wms. GIO ; and cf. Stat. G Geo. 4, c. 16, § 37. - 1 Burr. 424, per Lord Mansfield ; 12 Vin. Abr. Evidence B. And see note to 1 Greenl. Evid. § 341, with authorities cited. But see Robison v. Robison, 44 Ala. 227. In Pennsylvania, a wife under statute may be a competent witness with reference to her separate property sold by her husband. Musser v. Gard- ner, 66 Penn. St. 242. 3 See Ed. note to 10th ed. 2 Kent Com. 181 ; Stapleton v. Croft, 10 E. L. & Eq. 455 ; Barbat v. Allen, ib. 596 ; Alcock v. Alcock, 12 ib. 354. And see State V. Wilson, 30 N. J. 77 ; Farrell v. Ledwell, 21 AVis. 182 ; Metier v. ISIetler, 3 C. E. Green, 270. Some of tiie later American cases turning largely upon the con- struction of statutes arc Parsons v. People, 21 Mich. 509 ; State i'. Straw, 50 N. H. 4G0; Stanleys. Stanton, 36 Ind. 445; Noble v. Withers, 36 Ind. 193; Craig V. Brendel, 69 Penn. St. 153 ; JS^ewIiouse r. Miller, 35 Ind. 4G3 ; Minier v. Minier, 4 Lans. 421 ; State v. Brown, 67 N. C. 470. In an action against both for tlie wife's slanderous words, tlie wife is competent in her own bclialf, and the husband for himself. Mousler v. Harding, 33 Ind. 176. Notwithstanding our statutes, a prisoner's wife is not a competent witness for him upon tlie trial of an indictment. People v. Reagle, 60 Barb. 527 ; Steen v. State, 20 Oliio St. 333. Husband permitted to testify, when a substantial party to tlie suit, though claiming in right of his wife. Fugate v. Pierce, 49 Mis. 441. As to tlie compe- tency of a wife now to testify, if agent for an absent husband, see Magness r. Walker, 26 Ark. 470 ; Morony v. O'Laughlin, 102 Mass. 184. As to competency in case of tort, see Bunker v. Bennett, 103 Mass. 516. Wife of an heir held incompetent, notwitlistaiuling statute, in a suit contesting the validity of a will. Carpenter v. Moore, 43 Vt. 392. Wife not protected under statute from making discovery, though it be against herself. Metier v. Metier, 3 C. E. Green, 270. * §§ 125-183. [67] * 67 HUSBAND AND WIFE. of the great diversity of laws existing in different countries, as to the incidents of marriage, lays down the followuig gen- eral rules, which are of general application. First. Where parties are married in a foreign country, and there is an ex- press contract respecting their rights and property, present and future, it will be held equally valid everywhere, unless under the circumstances it stands prohibited by the laws of the countr}^ where it is sought to be enforced. It will act directly on movable property everywhere. But as to immov- able property in a foreign territory, it will, at most, confer only a right of action, to be enforced according to the juris- diction rei Slice. Second. Where such an express contract applies in terms or intent only to present property, and there is a change of domicile, the law of the actual domicile will govern the rights of the parties as to all future acquisitions. Third. Where there is no express contract, the law of the matrimonial domicile will govern as to all the rights of the parties to their j)resent property in that place, and as to all personal property everywhere, upon the principle that mova- bles have no situs, or, rather, that they accompany the person everywhere. As to immovable property, the law rei sitce will prevail. Fourth. Where there is no change of domicile, the same rule will apply to future acquisitions as to present prop- erty. Fifth. But where there is a change of domicile, the law of the actual domicile, and not of the matrimonial domi- cile, will govern as to all future acquisitions of movable prop- erty ; and, as to all immovable property, the law rei sitce.^ He further adds, that although in a general sense the law of * 68 the matrimonial domicile is to govern in relation * to the incidents and effects of marriage, yet this doctrine must be received with many qualifications and exceptions, inasmuch as no nation will recognize such incidents and effects when incompatible with its OAvn policy or injurious to its own inter- ests. So, too, perplexing questions will sometimes arise in determining upon the real matrimonial domicile of parties who marry in transitu, during a temporary residence abroad, or on a journey made for that purpose with the intention of return- ing. But the true principle in such cases is to consider as the 1 Story Confl. Laws, §§ 184-187. [68] THE GENERAL DISABILITIES OF .COVERTURE. * 68 real matrimonial domicile the place where, at the time of mar- riage, the parties intended to fix their abode, and not the place where the ceremony was in fact performed.^ 1 Story Confl. Laws,§§ 189-199, and cases cited. See also 1 Burge Col. & For. Laws, 244-639 ; Wharton Confl. Laws, §§ 118-121, 166, 187-202. In absence of proof as to the law prevailing in Russia, parties litigating in New York were held to be governed by the New York law, in Savage v. O'Neil, 44 N. Y. 298. See further Schurman v. Marley, 29 Ind. 458 ; Dow v. Gould, &c., Co., 31 Cal. 629 ; Mason v. Homer, 105 Mass. 116 ; Craycroff v. Moreliead, 67 N. C. 422 ; Bank of Louisiana v. Williams, 46 Miss. 618 ; Mason v. Fuller, 36 Conn. 160. [69] * 69 HUSBAND AND WIFE. *69 * CHAPTER III. THE EFFECT OF COVERTURE UPON THE WIFE's DEBTS AND CONTRACTS. One of the immediate effects of marriage at the common law is that the husband at once becomes bound to pay all out- standing debts of his wife, — her debts dum sola, as they are called, — of whatever amount. This is a sort of recompense he makes for taking her property into his hands. But whether she brings him a fortune or not, his liability is not affected. She may owe large sums at the time of marriage and have nothing to offset them. She may have studiously concealed the existence of the debts from her affianced husband. But none of these considerations can avail to shield him. When married, she is married with her debts as well as her fortunes. As Blackstone observes, her husband must be considered to have " adopted her and her circumstances together." ^ This rule is moreover applied without discrimination as to individuals. An infant who marries is bound equally with an adult husband, 2 A second husband is liable for the debts of his wife outstanding at the close of her widowhood, whether contracted prior to the first marriage, or while living separate from her first husband and upon a separate maintenance, or after the termination of her first coverture and subsequent to the second.^ On the other hand, the husband remains liable for the debts of his wife dum sola only so long as coverture lasts. As * 70 his * liability originated in the marriage so it ceases with it. Hence if the obligation be not enforced in the life- 1 1 Bl. Com. 443 ; 3 Mod. 186 ; 2 Kent Com. 143-146 ; Macq. Hus. & Wife, 39^1 ; Heard v. Stamford, 3 P. Wms. 409 ; cas. temp. Talb. 173. '^ Roach V. Quick, 9 Wend. 238 ; Butler v. Breck, 7 Met. 164. 3 1 T. R. 5 ; 7 T. R. 348 ; Prescott v. Fisher, 22 111. 390 ; Angel v. Felton, 8 Johns. 149. [70] WIFE'S DEBTS AND CONTRACTS. * 10 time of the wife, the surviving husband retains her fortune (if any) in his hands and cannot be charged further with her debts either at law or in equity.^ The wife's chases in action still unreduced to possession at the time of her death may however be reached by her creditors where he has received them as her administrator ; though only to the actual amount of such assets ; so that this would afford them but partial relief.^ Nor can the husband's estate after his death be made liable for the wife's debts contracted while sole.^ The injustice of the rule in certain cases is obvious. Sup- posing a feme sole is worth fifty thousand dollars and owes at the time of her marriage five thousand dollars. She marries and dies before her creditors have had time to sue her husband. Thereupon the husband retains for himself the fifty thousand dollars and the creditors are without a remedy. Such was the character of the argument pressed upon the distinguished Lord Talbot more than a century ago, in the case of Heard v. Stamford^ But his reply was as follows : " The question is, whether the husband, as such, be chargeable for a debt of his wife's, after her death, in a court of equity ? As, on the one hand, the husband is by law liable to all his wife's debts dur- ing the coverture, although he did not get one shilling portion with her, and although her debts should amount to any sum whatever ; so, on the other hand, it is as certain that if the debt be not recovered during the coverture, the husband is no longer chargeable as such, let the fortune he received be ever so great. The case perhaps may be hard, but the law hath made it so ; and the alteration of it is the proper work of the legislature only." * Lord Macclesfield still later encountered a different * 71 objection to the common-law rule, arising from an oppo- site state of facts. This he endeavored to answer. It may be hard, he observes, that the husband should be answerable 1 2 Kent Com. 144. See Cole v. Shurtloff, 41 Vt. 311, to tlie cHect that not even the husband's parol promise maile during coverture, to pay these debts, will create an additional liability for them on Ins part. '^ Heard v. Stamford, 3 P. Wms. 40'J ; cas. temp. Talb. 173 ; Morrow v. Whitesides, 10 B. Monr. 411 ; Day v. ISIessick, 1 Houston, 328. 3 Woodman v. Chapman, 1 Camp. 189 ; Curtton v. Moore, 2 Jones Eq. 204. * See supra. [71] * 71 HUSBAND AND WIPE. for the wife's debts, when he receives nothing from her ; but we are to set off against that hardship the rule, that if the husband has received a personal estate with the wife, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts, much beyond the personal estate of the wife ; and in recompense for that hazard, he is entitled to the whole of her personal estate, though far exceeding the debts, and is discharged from the debts as soon as the coverture ceases. ^ Constituting a right b}' balancing off two wrongs may seem unsatisfactory to the modern reader. Still the court decided aright : for the diffi- culty was in the common law itself. If the wife survives her husband, she becomes liable once more on her debts while sole. And this too, though the means for extinguishing them may have already been squan- dered by her husband or placed beyond her reach.^ Here is a third hardship. Coverture, therefore, seems to operate here as a temporary disability and not so as to utterly merge the wife's identity. The husljand becomes liable by marriage not as the debtor but as the husband ; the remedy being sus- pended, or rather shifted, during coverture. The Eng-lish common-law courts hold that if the husband, during coverture, obtains a certificate of discharge in bank- ruptcy the wife's debts dum sola are wiped out as well as his own.3 AVe apprehend the equity doctrine to be that though the husband be discharged, the wife's suspended liability yet remains ; and this has been announced in Xew York.* * 72 And * in Maine the wife's creditors dum sola maj^ have a fraudulent conveyance of her property set aside not- withstanding her husband's bankruptcy .° The national bank- ruptcy system recently established by statute will affect materially the future consideration of this subject in our courts.^ 1 Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 469, cited in 2 Kent Com. 144. 2 Woodman v. Chapman, 1 Camp. N. P. 189, per Lord Ellenborough. 3 Miles V. "Williams, 1 P. Wms. 249 ; Lockwood v. Salter, 5 B. & Ad. 303. •» Mallory v. Vanderheyden, 3 Barb. Cli. 9 ; s. c. 1 Comst. 453. 5 Hamlin v. Bridge, 24 Me. 14-5. 6 See Act Congress March 2, 18G7, c. 176. [72] WIFE'S DEBTS AND CONTRACTS. * 72 The liability of the husband for his wife's debts Avhile sole is limited strictly to legal demands ; that is, to such as she was bound to pay at the time of her marriage.^ And if a demand would not be enforceable against her remaining sole, neither is it enforceable against her husband. But the promise or part-payment of the wife cannot take a debt out of the stat- ute of limitations as against her husband, nor can the promise or part-pajunent of the husljand as against his wife. Nor can their admissions charge one another.^ Their rights in this respect are separately regarded. All actions for the wife's del)ts while sole must be brought against husband and wife jointly, and not against either separately ; and judgment obtained by disregarding this rule will be reversed on error.^ The object is to retain the remed}- in hand so that execution may be taken out against the proper party according to cir- cumstances ; for, if the husband should die pending the suit, the wife on her survivorship would become liable. If judgment be recovered against a fe^ne sole on her debt before she marries, and she dies before execution is taken out, having married in the mean time, her husband will be dis- charged from liability. But if judgment be recovered against both during coverture, and the wife dies before execu- tion, the * husband is still charged, because by the judg- * 73 ment the nature of the debt was altered and it became his own debt.^ So, too, when judgment was obtained before coverture and scire facias brought upon it against husband and wife afterwards.^ When judgment has been obtained for a debt of the wife while sole, and she afterwards marries, execution must in strictness be taken out against her alone, 1 Cowley V. Robertson, 3 Camp. 4.38 ; Caldwell v. Drake, 4 J. J. Marsh. 246. 2 Ross V. Winners, 1 Halst. 360 ; Sheppard v. Starke, 8 Munf . 29 ; Brown v. Lasselle, G Blackf. 147 ; Moore v. Leseur, 18 Ala. 600 ; Farrar i'. Bessey, 24 Vt. 89. But see Lord Tenterden, in Humphreys v. Royce, 1 Mood. & Rob. 140, as to admissions of the wife allowable in evidence after her death. ■^ Robinson v. Hardy, 1 Keb. 281; Drue v. Thorn, Alleyn, 72; Anficl v. Fel- ton, 8 Johns. 149 ; 7 T. R. 848 ; Gage v. Reed, 16 Jolms. 403 ; Gray v. Thacker, 4 Ala. 136 ; Platner v. Patchin, 19 Wis. 838. < 2 Bright Has. & Wife, 8 ; Burton v. Burton, 5 Barring. 441 ; O'Brien v. Ram, 3 Mod. 180 ; Sid. 337 ; Treviband v. Lawrence, 2 Ld. Raym. 10-50. 5 O'Brien v. Ram, supra. Mr. Bright seems to have stated this point incor- rectly. See 2 Bright Hus. & Wife, 3. [73] * 73 HUSBAND AND WIFE. because execution must always follow the judgment.^ But if the creditor desires to charge a person who was not a party to the record, as the hushand in this instance, scire facias should be issued so as to make him a party .^ This rule applies likewise where the wife marries pending the suit. The death of the wife, after action has been commenced against hus- band and wife and before judgment, puts an end to the suit.^ The rule as laid down in England concerning the wife's personal liability on her debts dimi sola is that coverture does not wholly relieve her from the consequences of judgment for the time being ; for that both may be taken on execution ; and when the wife is taken, she shall not be discharged unless it appear that she has no separate property out of which the demand can be satisfied.^ This rule does not seem to have been recognized with such strictness in this country .'^ But where the wife after marriage pays a portion of her debt con- tracted while sole from funds derived from her separate property, it is said that the husband will be bound by the act, unless he disaffirms it within a reasonable time.*^ * 74 * On general principles, the husband is bound for the debt of his infant wife Avhile sole, just as much as though she were an adult, though only to the same extent as she would have been bound. Hence, where the demand is for necessaries furnished her while an infant, the husband, after marriage, becomes bound to pay it, since she Avould have been liable if she had not married. And the infancy of the husband himself cannot be pleaded against this obli- gation.'^ 1 Doyley v. White, Cro. Jac. 323 ; Bull. Ch. P. 23 ; Benyon v. Jones, 15 M. 6 W. 566; and see Haines v. Corliss, 4 Mass. 659; Commonwealth v. Phillips- burgh, 10 ib. 78; Triggs v. Triggs, 2 M. & Ry. 126 n. 2 2 Bright Hus. & Wife, 3, 4 ; Cooper v. Hunchin, 4 East, 521. 3 Williams v. Kent, 15 Wend. 360. For the proper procedure in case of a mortgage executed by the wife dum sola, and foreclosed, with a decree ordering personal judgment for a deficiency, see Platner i'. Patchin, 19 Wis. 333. 4 Tidd Pract. 9th ed. 1026 ; Sparkes v. Bell, 8 B. & C. 1 ; Newton v. Roe, 7 Man. & Gr. 329 ; Evans v. Chester, 2 M. & W. 847. 5 Mallory v. Vanderheyden, 3 Barb. Ch. 9; s. c. 1 Comst. 453. 6 Hall V. Eaton, 12 Vt. 510. 1 Cole V. Seeley, 25 Vt. 220; Anderson v. Smith, 33 Md. 465. See Bonney V. Reardin, 6 Bush, 34. [74] WIFE'S DEBTS AND CONTRACTS. * 7-4 So far is this doctrine carried that the agreement of a widow after her husband's death, to pay a debt which she had con- tracted during coverture, and which consequently was not binding upon herself, but upon her husband, has been treated as void, on the ground that the promise was without con- sideration and only morally binding. ^ But in another case it was held a sufficient consideration to support a widow's promissory note that it had been given by her, out of respect for her late husband's memory, to secure a debt due by him.^ In respect to her disability to contract, the wife may be considered, as Mr. Bingham has remarked, worse off at the common law than infants ; for the contracts of an infant are for the most part voidable only, while those of married women are, with few exceptions, absolutely void. But the disabili- ties incident to these two conditions rest upon different grounds. For the disabilities attached to infancy are de- signed as a protection for the inexperienced against the fraudulent ; ^yhile those incident to coverture are the simple consequence of that sole or paramount authority which the law vests in the husband.^ Common sense teaches that mar- ried women have sufficient discretion to act for themselves, and stand on a different footing from young children ; this the English law fully recognizes, * irrespective of * 75 equity rules, by empowering all women to contract up to the very moment of their marriage and from the time when coverture ceases. At most it could only be said that a woman, while living in the married state, was peculiarly sub- ject to influence from the other sex, which might be exerted to her disadvantage. Lord Nottingham, in a case mentioned in the old reports, once refused to absolve a husband, after his wife's death, from payment for goods which she had purchased while single, but never paid for, there being proof that he had actually received 1 Meyer v. Hawworth, 8 Ad. & El. 4G7. 2 Ridout V. Bristow, 1 Cr. & J. 231 ; Tyr. 84. See also Nelson v. Searle 3 Jur. 290 (1839) ; AVaul v. Kirkman, 25 Miss. 609 ; Brunner's Appeal, 47 Penn. St. 67. For statutory clian<,'es as affecting the wife's antenuptial debts see post ^ pp. 196, 215. And see Smiley v. Smiley, 18 Ohio St. 543. 3 See Bing. Inf. & Gov. 181, 182, Am. ed. ; 2 Kent Com. loO. [75] * 75 HUSBAND AND WIFE. the goods. His lordship declared with warmth tliat he would change the law on that point.^ But in this case it appears that the goods did not actually come to the husband's hands until after the wife's death. And the authority of this deci- sion has since been greatly impaired.^ In equity the creditors of the first husband may, where his wife was administratrix, follow the assets in the hands of a second husband, although the wife be dead ; and at law during her life.^ The husband may make in his own right such contracts as he pleases, as well during coverture as before. He is never presumed to act under the wife's influence.* But the wife by coverture becomes disqualified and legally irresponsible in this respect, except in the single instance where her husband is civiliter mortuus^ as we have already stated.^ And another exception prevailed in certain parts of England by local cus- tom — as that of London — where she might carry on a trade, and sue and be sued in reference thereto, as though single.^ But otherwise her incapacity at the common law is total. She cannot earn money for herself.''' She cannot sign or in- dorse a promissory note, jointly with her husband or alone, so as to bind herself ;^ nor execute a bond ; nor purchase on her own credit ; nor agree to keep a money deposit payable on demand ; nor otherwise make a valid contract.^ She is per- mitted, as we shall hereafter see, to pass her real estate by joining in a deed with her husband ; but when she does * 76 so she * is not bound by her covenants, nor was her 1 Cha. Ca. 295. 2 cha. Ca. 295 ; 1 Eq. Cas. Ahr. 60. 3 Cha. Ca. 80; 1 Vera. 309; 2 Vern. 61, 118; 1 Eq. Cas. Abr. 60, 61; Cro. Car. 603 ; 1 Roll. Abr. 35. See Magruder v. Darnall, 6 Gill, 269. * City Council v. Van Roven, 2 McCord, 465. 5 Supra, p. 63. 6 1 Selw. N. P. 298 ; Bing. Inf. 261, 262. See post, ch. 13. 7 Offley V. Clay, 2 Man. & Gr. 172. 8 Mason v. Morgan, 2 Ad. &E1. 30 ; Snider v. Ridgeway, 49 111. 522 ; O'Daily V. Morris, 31 Ind. Ill ; Brown v. Orr, 29 Cal. 120 ; Tracy v. Keith, 11 Allen, 214. 9 Avery v. Griffiths, L. R. 6 Eq. 606 ; Goulding v. Davidson, 28 Barb. 438 ; Lee V. Lanahan, 58 Me. 478. But as to separate estate, see post, ch. 12. Her judgment bond is void. Schlosser's Appeal, 58 Penn. St. 493. But as to rights of property acquired by a married woman on the faith of a promise wliich she voluntarily performed, see Walker v. Coover, 65 Penn. St. 430. See further Tobey v. Smith, 15 Gray, 535 ; Whitworth v. Carter, 43 Miss. 61. [76] WIFE'S DEBTS AND CONTRACTS. * 76 separate conveyance (except by some matter of record) of any effect whatsoever.^ In all these cases the wife is under the husband's dominion, and unable to act for herself.^ But although the wife, as such, has no power to make a contract, she is allowed at the common law to bind her hus- band in certain cases as his agent. Her authority may be general or special, express or implied. On this principle rests the liability of the husband in contracts made by his wife for necessaries. Blackstone says that the power of the wife to act as attorney for her husband implies no separation from, but is rather a representation of, her lord.^ Whenever the husband expressly empowers his wife to make a contract for him, he will be bound as in the case of any other principal. And lie may bind himself in like manner for any unauthorized contract proceeding from his wife as agent, by sul^sequent conduct on his part amounting to ratification. But greater difficulty arises in determining his liability upon contracts where the authority is not express, but only implied. How far does the law go i|| presuming against ' the husband, and what are the proper limits of an implied authority in the wife to bind him by her contracts ? It is a clear obligation which rests upon every husband to support his wife ; that is, to supply her with necessaries suit- able to her situation and his own circumstances and condition in life. But though this obligation appears to rest on the foundation of natural justice, the common law assigns, as the true legal reason, that she may not become a burden to the community. So long as that calamity is averted, the wife has no direct claim upon her husband under any circum- 1 2 Bl. Com. 293, 351, 3G4, and n. by Chitty and others; 2 Kent Com. loO- 154 ; ib. 167, 168. See post, ch. 6. Rule applied to a land patent signed by husband and wife. Shartzer v. Love, 49 Cal. 93. 'i Marshall v. Rutton, 8 T. R.545 ; 11 East, 301 ; 2 B. & P. 226 ; 3 B. & C. 291 ; Jackson v. Vanderheyden, 17 Johns. 167 ; Benjamin v. Benjamin, 15 Conn. 347 ; Ayer v. Warren, 47 Me. 217 ; Young v. Paul, 2 Stockt. 401 ; Savage v. Davis, 18 Wis. 008; Williams v. Coward, 1 Grant Cas. 21. Aliler as to separate estate. 3 1 Bl. Com. 442; 2 Man. & Gr. 172; Mizen v. Peck, 3 M. & W. 481. [77] * 76 HUSBAND AND WIFE. * 77 stances whatever; for even *in the case of positive starvation she can only come* upon the parish for relief; in which case the parish authorities will insist that the hus- band shall provide for her to the extent of sustaining life.^ If a husband fail in this respect, so that his wife becomes chargeable to any parish, the statute 4 Geo. IV. c. 83, § 3, says that "he shall be deemed an idle and disorderly person, and shall be punishable with imprisonment and hard labor." 2 And this obligation extends to the whole family, with such modifications as will be more properly noticed under the topic of parent and child. If a man marry a widow he is not bound to maintain her children ; unless he holds them out to the world as part of his own family.^ But by the statute 4 and 5 Will. IV. c. 76, § 57, the husband is required to maintain, -as part of his family, any child or children, till the age of sixteen, legitimate or illegitimate, that his wife may have at the time of entering into the contract. To enforce these marital obligations the law takes a circui- tous course ; and the wife may secure ^erself and the family from want against a cruel and miserly husband, of ample means to support them, by pledging his credit and making such purchases as are needful, on the strength of an implied authority for that purpose. Here, all other things being equal, it is presumed that she was her husband's agent ; and no direct permission need be shown. Indeed, wherever the facts are clear that those articles were actually needed, and that the husband failed to supply them, this presumption is carried so far as to control even the express orders of the husband himself. The wife's necessaries are such articles as the law deems essential to her health and comfort ; chiefly food, drink, lodg- ing, fuel, washing, clothing, and medical attendance. They are to be determined, both in kind and amount, by the means 1 Rex V. Flintan, 1 B. & Ad. 227 ; Reg. v. luliabitants of "Wendron, 7 Ad. & El. 819. 2 See Macphers. Inf. 42, 43. 3 4 T. R. 118; Cooper v. Martin, 4 East, 76 ; Stone v. Carr, 3 Esp. N. P. 1. See Parent and Child, infra. [78] WIFE'S DEBTS AND CONTRACTS. * 77 and social position of the married pair, and ninst there- fore vary * greatly among different grades and at differ- * 78 ent stages of society.^ Thus a large milliner's hill might not be deemed necessaries for the wife of a lal)orer, Avhile a wealthy merchant would he bound to pay it. So too neces- saries to-day are not what they were fifty years ago. Nor is the ordinary test to be found in the real situation and means of the married parties; for this a tradesman cannot be ex- pected to investigate ; but in their apparent situation, the style they assume, and the establishment they maintain before the world ; which every husband is supposed to regulate with sufficient prudence.^ The decisions in the books, relating to necessaries, are therefore somewhat confusing, as might be expected ; the more so since the dividing line between law and fact, in such cases, is not marked with distinctness. Some- times the court decides whether articles are necessary, some- times a jury. The ordinary rule is that the court shall decide whether certain articles are to be classed as necessaries ; while the jury may determine the question of amount, and apply this classification to the facts ; ^ but this rule, though seem- ingly precise, is found difiSeult in its practical application. Among the cases we find the following articles classed as necessaries for the wife : Board and lodging. Medicines, medi- cal attendance, and reasonable expenses during illness.* Furni- ture of a house for a wife to whom the court had decreed ^380 a year as alimony.^ Silver fringes to a petticoat and side-sad- dle (value £d4) furnished to the wife of a sergeant-at-law.^ Legal expenses incurred by a wife wlio had been deserted by her husband, preliminary and incidental to a suit for * restitution of her conjugal rights, and in obtaining * 79 1 2 Bright Hus. & Wife, 7, 8; Ozard v. Darnford, Sel. N. V. 260; Dennys v. Sargeant, Car. & P. 419; Berreblock v. Michael, Cro. Jac. 2.J7, 258 ; n. to 2 Kent Com. 10th ed. 14G ; ib. 138, 139 ; 1 Bl. Com. 442. ' Waithman v. Wakefield, 1 Camp. 120. 3 Eenaiix v. Teakle, 20 E. L. & Eq. 345 ; 1 Bars. Contr. 241 ; Hall i'. Weir, 1 Allen, 2G1; Parke v. Kleeber, 37 Penn. St. 251; Phillipson i'. Hayter, L. R. 6 C. P. 38. * Harris v. Lee, 1 P. Wras. 438 ; Mayhcw v. Thayer, 8 Gray, 172 ; Cothran V. Lee, 24 Ala. 380. 5 Hunt V. De Blaquiere, 5 Bing. 5-50. ^ Skin. 349. [79] * 79 HUSBAND AND WIFE. professional advice as to the proper method of dealing with tradesmen who were pressing their bills.^ A horse worth 145 for the invalid wife of a miller earning $30 per month, in order that she might take exercise as advised by a physician ; the question of suitableness however being left to the jury .2 The cost of divorce proceedings, included fees of a proctor, where the Avife had reasonable ground for instituting them, but not otherwise.3 A set of false teeth.* Household suppHes rea- sonable and proper for the ordinary use of a family, although the wife receives the earnings of two daughters living with her.^ Perhaps a piano.'' But, on the other hand, the following articles have been held not to be necessaries : Articles of jewelry for the wife of a special plead er.^ A deed of separation.^ The expense of an indictment by the wife for assault.^ Counsel fees in a suit for divorce or to enforce a marriage settlement, whether the wife be plaintiff or defendant.i^ Money lent the wife for the pur- chase of necessaries, unless at the husband's request." And on the same principle money lent for the purchase of a pas- sage ticket to enable the wife to join her husband.^^ Medical 1 Wilson V. Ford, L. R. 3 Ex. 63. 2 Cornelia v. Ellis, 11 111. 584. 3 Brown v. Ackroyd, 34 E. L. & Eq. 214. * Giiman v. Andrus, 28 Vt. 241. 5 Hall V. Weir, 1 Allen, 261. 6 Parke v. Kleeber, 37 Penn. St. 251. I Montague v. Benedict, 8 B. & C. 631. 8 Ladd V. Lynn, 2 M. & W. 265. 9 Grindell v. Godmond, 5 Ad. & El. 755. Especially if the grounds for insti- tuting criminal proceedings did not appear reasonable. Smith v. Davis, 45 N. H. 566. i» Pearson v. Darrington, 32 Ala. 227 ; Morrison v. Holt, 42 N. H. 478 ; Thompson v. Thompson, 3 Head, 527; Coffin i;. Dunham, 8 Gush. 404; Shelton V. Pendleton, 18 Conn. 417 ; Johnson v. Williams, 3 Iowa, 97 ; Williams v. Mon- roe, 18 B. Monr. 514 ; Ray v. Adden, 60 N. H. 82. Legal expenses and fees are sometimes chargeable against a husband, in cases of this sort, because the stat- ute says so. See Thomas v. Thomas, 7 Bush, 665; Warner v. Heiden, 28 Wi8. 617. II Walker i'. Simpson, 7 W. & S. 83 ; Stone v. McNair, 7 Taunt. 482; Ste- venson V. Hardy, 8 Wils. 388. But in equity, the person lending the money stands in the stead of tlie tradesman, and is allowed to recover if the money was used for necessaries. Harris r. Lee, 1 P. Wms. 482; Walker v. Simpson, 7 W. & S. 83; Deare v. Soutten, L. R. 9 Eq. 151. See SchuUhofer v. Metzger, 7 Rob. (N. y.) 576. " Knox V. Bushell, 3 C. B. n. 8. 384. [80] WIFE'S DEBTS AND CONTRACTS. * 79 attendance rendered without the husband's assent, by a quack doctor ; ^ though when a husband disputes a bill for medical attendance * on the ground of malpractice, or * 80 an unnecessary surgical operation, the burden is on him to show it."^ Articles in short which are extravagant and altogether beyond the husband's circumstances and degree in life.^ In the leading Enghsh case of Montague v. Benedict^ the rule as to the husband's liability for his wife's necessaries was thus laid down : " If a man without any justifiable cause turn away his wife, he is bound by any contract she may make for necessaries suitable to her degree and estate. If the husband and wife live together, and the husband will not supply her with necessaries, or the means of obtaining them, then, al- though she has her remedy in the Ecclesiastical Court, yet she is still at liberty to pledge the credit of her husband for what is strictly necessary for her own support. But whenever the husband and wife are living together, and he provides her with necessaries, the husband is not bound by contracts of the wife, except where there is reasonable evidence to show that the wife has made the contract with his assent. Cohabitation is presumptive evidence of the assent of the husband, but it may be rebutted by contrary evidence ; and when such assent is proved the wife is the agent of the husband duly author- ized." ^ Hence the husband's liability for necessaries may arise in two classes of cases : first, where the wife lives with him : second, where she lives separate from him. And where the wife lives with him, the husband's assent to her contract for necessaries is inferred from circumstances which show authority actually conferred, or else the law supplies an assent for her benefit where he has improperly refused or neglected to provide for her wants. Where they live apart separation is either voluntary or involuntary. 1 Wood V. O'Kelly, 8 Cush. 406. 2 M'Clallan r. Adams, 19 Pick. 333. 3 Caney v. Patton, 2 Ashm. 140. In Phillipson v. Hayter, L. R. 6 C. P. 38, goods, such as a gold pencil-case, cigar-case, glove-box, scent-bottle, guitar, music, and purse, to the value of £20, were held not to be necessaries charge- able against the husband, who was a clerk with a salary of .£400 a year. 4 3 B. & C. 631. 6 [81] *80 HUSBAND AND WIFE. Let us consider these two classes of cases separately. Here we are met at the outset by the broad presumption of * 81 assent * which cohabitation of itself furnishes. ""The simple circumstance that husband and wife are living together is held sufficient, when nothing to the contrary inter- venes, to raise a presumjDtion that the wife is rightfully mak- ing such purchases of necessaries as she may deem proper.^ Whoever then supplies her in good faith need inquire no further, but may send his bill to her husband. t^This rule is a fair one ; for it is not to be supposed that a husband will go in person to buy every little article of dress or household pro- vision which may be needful for his family. As Lord Abinger observed, a wife would be of little use to her husband in theu' domestic arrangements, if his interference was always to be deemed necessar3^2 Accordingly if an action be brought against the husband for the price of goods furnished under such circumstances, it must be taken prima facie that these goods were supplied by his authority, and he must show that he is not responsible.^ The wife's contract for necessaries will bind the husband to a still greater extent if the evidence warrant the inference that a more extensive authority has in fact been given.^ Thus the presumption which cohabitation furnishes is strength- ened by proof that the wife has been permitted by the hus- band to purchase other articles of the same sort for the use of the household.^ But it must be ordinarily things for what may be termed the domestic department, to which the wife's authority to bmd her husband is restricted.^ The question is, after all, one of evidence ; it turns upon 1 2 Bright Hus. & Wife, 6, 7 ; Bull. N. P. 134; Langfort v. Tyler, Salk. 113; Atkins V. Garwood, 7 Car. & P. 756. See also Dyer v. P2ast, 1 Ventr. 42; Beau- mont V. Weldon, 2 Bent. 155; Manby v. Scott, 1 Mod. 124; 1 Sid. 109; 1 Roll. Abr. 351, pi. 5; Freestone v. Butcher, 9 Car. & P. 643. 2 Emmet v. Norton, 8 Car. & P. 506. 3 Clifford V. Laton, 3 Car. & P. 16, per Lord Tenterden. * 2 Bright Hus. & Wife, 9 ; cases cited in n. to Filraer v. Lynn, 4 Nev. & Man. 559; M'George v. Egan, 7 Scott Cases, 112. 5 1 Sid. 128 ; Jewsbury v. Newbold, 40 E. L. & Eq. 518. 6 Phillipson v. Hayter, L. R. 6 C. P. 38. If the tradesman supplied the wife with articles which were not necessaries also, he can yet recover for such arti- cles supplied as were necessaries. Eames v. Sweetser, 101 Mass. 78. [82] WIFE'S DEBTS AND CONTRACTS. * 81 the question of authority from the husband ; and this pre- sumption in the wife's favor may be rebutted by contrary testimony on the husband's behalf.^ Lord Holt says, " His assent shall * be presumed to all necessary con- * 82 tracts, upon the account of cohabiting, unless the con- trary appear y ^ Not only is the husband permitted to sliow that the articles in controversy are not such as can be considered necessaries, but he may show that he supplied his wife himself or by other agents, or that he gave her ready money to make the pur- chases.^ This is on the principle that so long as the husband has provided necessaries in some way his marital obligation is discharged, whatever may be the method he chooses to adopt. And in the class of cases which we are now considering, so long as the husband is willing to provide necessaries at his own home he is not liable to provide them elsewhere.* In general, a husband who supplies his wife with necessaries suitable to her position and his own is not liable to others for debts contracted by her without liis previous authority or subsequent sanction.^ But in all such cases the burden of proof is on the husband.^ This last rule suggests another point of which the trades- man may avail himself, as against the husband, on the general principles of agency ; namely, that subsequent ratification is as good as a previous authority. So then if it can be shown 1 Lane v. Ironmonger, 13 M. & W. 3G8. 2 Etherington v. Parrott, 1 Salk. 118. See also to the same effect Holt v. Brien, 4 B. & Aid. 252 ; McCutchen v. McGaliay, 11 Johns. 281 ; and n. by Am, editor to Bing. Inf. 187. The position assumed by Mr. Story, in his work on Contracts, that, as to the wife's necessaries, " the law raises an uncontrollable pre- sumption of assent on the part of the husband," is therefore incorrect. Story Contr. 2d ed. § 97. " What the law does infer is, that the wife has authority to contract for things that are really ne(^essary and suitable to the style in which the husband chooses to live, in so far as the articles foil fairly within the domes- tic department which is ordinarily confided to the management of the wife." Willes, J., in Phillipson v. Hayter, L. K. ti C. P. 38. And sec Bovill, C. J., ib., to the same effect. 3 Manby v. Scott, 1 Sid. 109; 2 Smith's Lead. Cas. (Cth Am. ed.) 4G9 ; Etherington v. Parrott, 2 Ld. Raym. 1006. * Morgan v. Hughes, 20 Tex. 141; Jolly v. Rees, 15 C. B. n. s. 628. 8 Seaton v. Benedict, 5 Bing. 28. 6 Tebbets v. Hapgood, 34 N. H. 420. [83] * 82 HUSBAND AKD WIFE. that the husband knew his wife had ordered certain necessaries, and 3'et failed to rescind the purchase ; or if there be proof that he knew she wore the articles and yet expressed no disapprobation ; the law presumes approval of her contract and binds him.^ To this principle perhaps may be re- * 83 ferred the rule which * Mr. Roper further states (with- out, however, citing any authorities), that the husband is liable whenever the goods purchased by his wife come to her or his use with his knowledge and permission, or when he allows her to retain and enjoy them ; in other words, that a legal liability becomes fixed from the fact that the husband and his household take the benefit of the purchase.^ But the mere fact that a husband sees his wife wearing articles pur- chased without authority will not charge him ; the question is one of approval or disapproval, assent or dissent.^ As a rule, a husband who furnishes his wife and family with necessaries, in any reasonable manner, has the right to pro- hibit particular persons from trusting or dealing with her on his account. Notice to this effect, properly given, will be effectual as against any presumption which cohabitation raises.* And notice given to a ti-adesman's servant has been held suffi- cient notice to the master. But notice given in the news- papers not to trust a wife is held to be of no effect against such as have not had actual notice.^ Nor is a successful defence against one bill sufficient notice of prohibition against subsequent bills.^ In all cases the husband will be discharged from liability 1 Seaton v. Benedict, 5 Bing. 28 ; 2 Moo. & P. 74 ; Parke, B., in Lane v. Iron- monger, 13 M. & W. 368; Ogden v. Prentice, 33 Barb. 160. 2 2 Rop. Hus. & "Wife, 112; 2 Bright Hus. & Wife, 9. Mr. Macqueen (Hus. & Wife, n. to p. 132) points out this statement of Mr. Roper with a doubt as to the autliority, although he admits tlie justice of such a rule, on the civil-law maxim, that " no one should enrich himself at another's loss." See Woodward V. Barnes, 43 Vt. 330. 3 Atkins V. Curwood, 7 Car. & P. 756. i McCutchen v. McGahay, 11 Johns. 281 ; Keller v. Phillips, £9 N. Y. 351. According to Jolly v. Rees, 15 C. B. n. s. 628, the majority of the court appear to have considered a private arrangement with the wife sufficient, without notice to the tradesman. 6 Walker v. Laighton, 11 Post. (N. H.) 111. 6 Ogden V. Prentice, 33 Barb. 160, [84] WIFE'S DEBTS AND CONTRACTS. * 83 ■u'liere it appears that the goods were not supplied on his credit, but that the party furnishing them trusted the wife individually.^ She might have separate property, indepen- dently of her husl^and, to which the tradesman looked for payment, or a special allowance of sufficient amount might have been made her by her husband.^ Thus, where the husband during a temporary * absence made an allow- * 84 ance to his wife, he was held not to be lial)le for nec- essaries supplied to her, the tradesman having trusted to payment from her allowance.'^ So if credit be given to a third party, the husband is not liable.* And of coui-se, if the tradesman has agreed not to charge him, there is no liability incurred l)y the husband.^ Though the wife be without prop- erty, the rule is the same ; and it would appear that the husband may give permission to trust his wife on her separate credit without incurring liability.^ That the wife has a separate income, that the invoices are made out to her, that the plaintiff has drawn bills of exchange upon her for part-payment of the amount due, and that she has accepted such bills in her own name, payable at her own banker's from her separate funds, — all these are circum- stances which go to repel the presumption of agency and show that the wife was purchasing on her own credit with the trades- man's assent.*" So is the studious concealment of the pur- chases from the husband's knowledge, by the tradesman and the wife, and the attempt of the latter to secure the debt by her own promissory note.^ All these are facts for the jury.^ The husband is not relieved by the single circumstance that » Metcalfe v. Shaw, 3 Camp. 22; Bentley v. Griffin, 5 Taunt. 3-56 ; Pearson v. Darrington, 32 Ala. 227; Stammers v. Macomb, 2 Wend. 454; Moses v. For- gartie, 2 Hill (S. C), 835; Carter v. Howard, 39 Vt. 106. 2 Levett V. Penrice, 24 Miss. 416; Simmons v. McElwain, 26 Barb. 420; McMahon v. Lewis, 4 Bush, 138; Weisker v. Lowentjial, 31 Md. 413. 3 Holt t'. Brien, 4 B. & Aid. 252; Montague v. Benedict, 3 B. & C. 631; Harsliaw v. Merryman, 18 Miss. 106 ; Uenaux v. Teakle, 20 E. L. & Eq. 345. * Harvey v. Norton, 4 Jur. 42. 5 Dixon V. Hurrell, 8 Car. & P. 717. 6 Taylor v. Slielton, 30 Conn. 122. " Freestone v. Butcher, 9 Car. & P. 643 ; Macq. Hus. & Wife, 135. 8 Mitchell V. Treanor, 11 Geo. 324. But see Day v. Burnham, 36 Vt. 37. 9 Attorney-General v. Riddle, 2 Cr. & Jer. 493; 2 Tyr. 523; Barnes r. Jar- rett, 2 Jur. 988. [85] * 84 HUSBAND AND WIFE. the goods were charged on the shop books to the wife ; since prima facie the actual credit is always supposed to be given to the husband.! His dissent to his wife's purchase of neces- ^ saries should be expressed in an effectual and suitable manner. Mere objection on his part is insufficient. Thus a bill * 85 for medical attendance * must be paid by him, even though he objected to the visits, as long as he was present and gave no notice to the physician that the latter must look elsewhere for payment.^^ And private arrangements between husband and wife as to the method of payment cannot affect the rights of third parties.^ If he means, when sued in assumpsit for necessaries, to defend the action as to part only, it would appear that his proper plea will be tliat he is not liable beyond a certain amount, and he should pay that amount into court.* But if he means to dispute the charge altogether, common honesty dictates that the articles unwar- rantably purchased should be restored without delay .^ He may introduce evidence at the trial to show that the com- modities in question were not necessaries, inasmuch as the wife had incurred other similar debts with other parties.^ In a word, the question is (in the absence of such evidence of necessity as may show an agency in law) whether there was an agency and authority in fact.'^ Wherever the husband neglects to supply his wife with necessaries, she may obtain them, although it be against his wishes, on the pledge of his credit. And the person furnish- ing the articles may sue the husband notwithstanding he has been expressly forbidden to trust her.^ But here the law raises a presumption of agency only for the purpose of enforc- 1 Jewsbury v. Newbold, 40 E. L. & Eq. 518; Godfrey v. Brooks, 5 Harring. 896 ; Furlong v. Hysom, 35 Me. 332. 'i Cothran v. Lee, 24 Ala. 380. _ 3 lb. ; Johnston v. Sumner, 3 Hurl. & Nor. 2C1. But see Jolly v. Rees, cited supra. 4 Emmet v. Norton, 8 Car. & P. 506. 5 Macq. Hus. & Wife, 136; Oilman v. Andrus, 28 Vt. 241. See Tuttle v. Holland, 43 Vt. 542. 6 Renaux v. Teakle, 20 E. L. & Eq. 345. T Read v. Teakle, 24 E. L. & Eq. 332. 8 Keller v. Phillips, 39 N. Y. 351 ; Cromwell v. Benjamin, 41 Barb. 558 ; Woodward v. Barnes, 43 Vt. 330. [86] WIFE'S DEBTS AND CONTRACTS. * 85 ing a marital obligation. And the tradesman or other party- furnishing supplies in this case is bound to show affirmatively and clearly that the husband did not provide necessaries for his wife suitable to her condition in life.^ It is held in Massa- chusetts, that a town may supply a wife who is in need of relief, throuGfh the necjlect of her husband, and then sue him for * necessaries suitable to the condition of a * 86 pauper, and no more.^ In New York, if the husband be of sufficient abiUty to support his wife, it would appear that she cannot be supported by the public as a pauper at all.^ And so in Indiana.^ Marriage de facto is always sufficient to charge the husband with his Avife's necessaries. There seem to be two reasons why this should be so : one, that a tradesman cannot be expected to inquire into such matters ; the other, that it is just that any man who holds out a woman to society as his Avife should maintain her as such. Hence an agency is to be inferred wherever there is cohabitation of parties as husband and wife ; though not, it would appear, where the cohabita- tion is irregular and calculated to raise a different impression. Lord Kenyon used very strong language to this effect in Watson V. Threlkeld, where it appeared that the tradesman knew that there had been no marriage : " It is certain that if a man has permitted a woman to whom he was not married to use his name and pass for his wife, and in that character to contract debts, he is liable for her debts ; and I am of opinion that he is liable whether the tradesman who furnished the goods knew the circumstances to be so or not. He gives her a credit from his name and cohabitation ; and it is not to be supposed that the tradesman could look to the credit of a woman of that description and not to that of the man by whom she was supported."^ The dictum of Lord Ellen- borough in Robinson v. JVahon would seem to narrow this rule so as to exclude tradesmen having actual knowledge of 1 Keller v. Phillips, 39 N. Y. 351 ; Cromwell v. Bonjaniin, 41 Barb. 558 ; Woodward v. Barnes, 43 Vt. 330. 2 Monson v. Williams, 6 Gray, 416. And see Rumney v. Keyes, 7 N. H. 571. 3 Norton v. Rhodes, 18 Barb. 100. * Commissioners v. Hildebrand, 1 Carter, 555. 5 2 Esn. 637. And see 1 Greenl. Evid. § 207. [87] * 86 HUSBAND AND WIFE. the illicit relation of the parties.^ And the death of the quasi husband is held to revoke his authoritj'' altogether, so * 87 that a subsequent * contract is void against his estate, under all circumstances.^ An adult husband is bound on the contracts of his minor wife for necessaries.^ And a minor husband is liable for necessaries furnished his wife, whether she be minor or adult.^ The ordinary rules of husband and wife therefore apply so far as family necessaries are concerned. If old enough to contract marriage, an infant is presumed old enough to pay for his wife's board and lodging as well as his own. And such claims may be enforced against his estate though he die under age.^ But with regard to his wife's general contracts it would seem that infancy, which incapaci- tates him from making contracts in person, also disqualifies him from emploj'ing an attorney. The common-law courts include articles of the peace under the head of necessaries, though by stretching very consider- ably the doctrine of agency. Since this proceeding generally assumes the husband and wife to be living together, we may here allude to the doctrine. A husband is at common law held liable to an attorney who acts for his wife in exhibiting such articles against him. But the proceeding must have been justified by the circumstances. This is the English rule ; ^ followed likewise in New Hampshire.''' Even if the husband and wife dwelt apart the English courts will not inquire whether she might not have paid her counsel fees and costs from her maintenance ; for, as Lord Denman ob- serves, "she has her maintenance for other purposes." ^ But 1 1 Camp. 245. But reference to the case shows that this doubt is sug- gested more strongly in the reporter's liead-note than in his lordship's opinion. See Jewsbury v. Newbold, 40 E. L. & Eq. 518; Munroe v. De Chemant, 4 Camp. 215. 2 Blades v. Free, 9 B. & C. 167 ; Stinson v. Prescott, 15 Gray, 335. But see Ginochio v. Porcella, 3 Bradf. Sur. 277. See reference to ib., infra, p. 180. 3 Nicholson v. Wilborn, 13 Geo. 467. * Cantine v. Phillips, 5 Harring. 428. And see Bush v. Lindsey, 14 Geo. 687. 5 Ibid. 6 Sheplierd i-. Mackoul, 3 Camp. 326 ; Macq. IIus. & Wife, 136, 137. " Morris v. Palmer, 39 N. H. 123. 8 Turner v. Eookes, 10 Ad. & El. 47. [88] WIFE'S DEBTS AND CONTRACTS. * 87 the wife cannot cany her privilege so far as to indict her husband ; and here the Englissh courts seem to liave stopped short in their perplexity, and placed a final limit to this fiction of agency. " It cannot be maintained," says * Patteson, J., in G-rindell v. G-odmond, " that an in- * 88 dictment against the husband for assaulting his wife is a necessary." ^ The law will not imply a contract as against a son-in-law, to pay his wife's board while staying at her father's house. " Persons in such a near connection as father and children do not usually live together upon a footing of obligation to ac- count with and pay for attentions and services, or board and lodging. When the parties intend to live in that way, it is but reasonable to require that there should be an express understanding between them to that effect." ^ And this principle is extended to the husband's own board ; the law implying no contract by which the relation of debtor and creditor arises between father-in-law and son-in-law, either for support on the one hand or services on the other.^ Some of the old books raise a curious distinction : namely, that if the wife takes up goods, as silk, and before they are made into clothes, pawns them, the husband shall not pay for them ; Init that it is otherwise if they are made up and worn, and then pawned ; for in the former case they never came to the husband's use, while in the latter they did.'^ ' We appre- hend that the real question in such cases would be whether the articles were or were not in fact necessaries ; while at the same time purchases of cloth in quantities, it might be ad- mitted, are not so clearly necessaries as clothing made up for wear and worn. The practical application of this rule is in cases where the wife (being, as we have said, forbidden to borrow money for the purchase, real or ostensible, of neces- saries) undertakes to raise funds for her own purposes by purchasing goods and then selling or pawning them. We do not find a modern decision on this point. 1 5 Ad. & El. 755. See supra, p. 79. ■■2 Ter Court, in Cantine i'. Phillips, 5 Harring. 428. 3 Sprague v. Waldo, 38 Vt. 139. See Parent and Child, infra. * Holt, C. J., in Etherington v. Parrott, 1 Salk. 118. See also Reeve Dom. Rel. 84. [89] * 88 HUSBAND AND WIFE. In the second class of cases which we are to consider, * 89 the * husband's liability for his wife's necessaries arises where they are living apart. The rule is that where the husband abandons his wife, turns her away without rea- sonable cause, or compels her by ill usage to leave hira, he is liable for her necessaries, and sends credit with her to that extent.^ The wife's faithfulness on the one hand to her mar- riage obligations ; on the other, the husband's disregard of his own ; these aiford the reason of the above rule and suggest its proper limitation. The wife in such cases has an author- ity ; but what may be called an authority of necessity .^ The law by a fiction infers an agency without asking evidence which should show authority in fact. This rule suggests, then, three cases where the wife may pledge her husband's credit when they are living apart : the first, where he abandons her ; the second, where he turns her out of doors without reasonable cause ; the third, where his misconduct compels her to leave him. In the first two cases his own acts impose the necessity, and her conduct is in- voluntary. But in the third her conduct might be considered voluntary, though induced by his misconduct ; and the rule here becomes perplexing. The doctrine of Honvood v. Seff'er, an old case, is that the wife is not justified in leaving her hus- band unless she has been driven from the house by actual violence or apprehension for her personal safety ; and in this case the husband was held not to be liable, since she had quitted his house because he had placed a profligate woman at the head of the table.^ This doctrine has been strongly condemned in later times, and the modern cases justly regard such studied insults as capable of legal redress. If, therefore, the husband, by his indecent conduct, renders his house * 90 unfit for a modest * woman to share it, the rule now is that she may leave him, and pledge his credit elsewhere for her necessaries.* 1 2 Kent Com. 146, 147 ; 2 Bright Hus. & Wife, 10-12 ; Snover v. Blair, 1 Dutch. 94 ; Mayhew v. Thayer, 8 Gray, 172. * See Pollock, C. B., in Johnston v. Sumner, 3 Hurl. & Nor. 261. 3 3 Taunt. 421. * Per Lord Elienborough, Liddlow v. Wilmot, 2 Stark. 77 ; 1 Selw. N. P. [90] WIFE'S DEBTS AND CONTRACTS. * 90 Where the wife is justified on any of the above grounds in living apart from her husband, he is not discharged from lia- bility by showing that her contract was in fact made without his authority and contrary to his wishes. Nor will his general advertisement or particular notice to individuals not to give credit to his wife affect the case.^ The legal presumption must prevail for the wife's protection. Nor in such cases can the husband terminate his liability for necessaries supplied his wife during the separation by a simple request on his part that she shall return.^ And it is clear that if he only offers to take her back upon conditions which are unreasonable and improper, his liability continues.^ It is the husband's duty, by some positive act, to determine his liability ; though if the wife voluntarily returns, his lia- bility for necessaries furnished abroad is discontinued. But in default of any amicable arrangement, he must institute proceedings in the courts with divorce jurisdiction. And until some such unequivocal act is done, a person making a proper claim in a court of law for necessaries supplied to the wife may be entitled to recover against him.* Where the wife had good reasons for leaving, the husband is not discharged by the fact of her subsequent return from liability for necessaries furnished during her justifiable absence.^ But the wife should have weighty and sufficient cause for leaving her husband in order to be permitted to pledge his credit abroad. In general, the same facts suffice as justify * divorce from bed and board.^ But where she * 91 298, llth ed. ; per Best, C. J., Houliston v. Smyth, 3 Bing. 127 ; 10 Moo. 482 ; 2 Car. & P. 22 ; Descelles v. Kadmus, 8 Clarke, 51 ; Hultz v. Gibbs, 06 Peiin. St. 360. And for the board of the child taken by her, too, under some circum- stances. Reynolds v. Sweetser, 15 Gray, 78 ; Bazeley v. Forder, L. R. 3 Q. B. 559. 1 Harris v. Morris, 4 Esp. 41 ; 1 Selw. N. P. 298, llth ed. ; 2 Stra. 1214. See Black v. Bryan, 18 Tex. 453. 2 Emery v. Emery, 1 You. & Jer. 501. 2 Reed v. Moore, 5 Car. & P. 200. See Flanagan v. Bishop Wearmouth, 8 El. & B. 451. * Reed v. Moore, supra. See Atkyns v. Pearce, 2 C. B. n. s. 763. ^ Reynolds v. Sweetser, 15 Gray, 78. <> Brown v. Patton, 3 Humph. 135; Hancock v. Merrick. 10 Cush. 41; Caney v. Patton, 2 Aslun. 140 ; Rea v. Diirkee, 25 111. 503 ; Schindel v. Schin- del, 12 Md. 294 ; Stevens v. Story, 43 Vt. 327. [91] *91 HUSBAND AND WIFE. leaves her husband without sufficient cause and against his will, she cannot bind him elsewhere ; especially if the per- son furnishing goods knows that cohabitation has ceased, and makes no further inquiries.^ Supposing the wife leaves voluntarily and without suffi- cient cause, against her husband's wishes, and she afterwards returns to her husband, is he bound to receive her ; and, if he refuse to receive her, can she make him liable for debts contracted thenceforth for necessaries ? The current of au- thorities is in favor of such a position, provided she conducted herself properly in her absence.^ Some, however, have sug- gested doubts as to this doctrine ; for, they say, since the wife by her own voluntary act discharged the husband from his obligation to maintain her, by unnecessarily quitting his house without his consent, it is but reasonable to say that his liabihty to support her afterwards should not be revived by implication without his express concurrence in consenting to his wife's return to his protection, or until cohabitation was restored by mutual agreement, or by the sentence of a court with matrimonial and divorce jurisdiction.^ This is fair reasoning on general grounds, and applies a mutual doctrine to husband and wife, but the courts appear to have thought otherwise. But, as the reader may have inferred, if the wife elopes and commits adultery, or if her adultery causes separation, the husband is relieved from her support. Her crime * 92 ought * to put an end to her authority to bind the in- jured spouse, and it does."* In such case his refusal to 1 Brown v. Midgett, 40 Vt. 68 ; Etherington v. Parrott, 2 Ld. Raym. 1006 ; Manby v. Scott, 1 Sid. 130 ; Bailey v. Calcott, 4 Jur. G99 ; Collins v. Mitchell, 5 Harring. 369. 2 Manby !'. Scott, 1 Sid. 129 ; 1 Mod. 131 ; Child v. Hardyman, 2 Stra. 875 ; Rawlins r. Vandyke, 3 Esp. 251 ; Edwards v. Towels, 5 Man. & Gr. 624; Hindley r. Westnieath, 6 B. & C. 200 ; Howard r. Whetstone, 10 Ohio, 365; McCutchen v. McGahay, 11 Johns. 281. 3 See 2 Bright Hus. & Wife, 13. But see 2 Bish. Mar. & Div. 5th ed. § 33. The husband should not be deprived of his divorce remedies. •4 Morris v. Martin,! Stra. 647 ; Man waring v. Sands, 2 Stra. 707 ; Hardie v. Grant, 8 Car. & P. 512. And see Rex v. Flintan, 1 B. & Ad. 227 ; Hunter v. Boucher, 3 Pick. 289 ; Gill v. Read, 5 R. I. 343 ; Cooper v. Lloyd, 6 C. B. n. s. 519. [92] WIFE'S DEBTS AND CONTRACTS. * 92 take her back again will not revive his obligation to maintain her. But as forgiveness always interposes a bar to legal remedies on behalf of the injured one, he becomes once more liable for her necessaries, where he voluntarily receives her again and forgives her.^ There are cases where the marital rights and duties become more confused. Supposing the wife be turned out of doors, or, what amounts to the same thing, be forced b}' her hus- band's misconduct to leave; and she afterwards, being beyond that shelter which every wife needs, commit adulter}^ : is he then relieved from supporting her ? In Govier y. Hancock it was held that he was, even though his own adultery caused her departure.^ This was a very harsh decision. The court, however, admitted that necessaries furnished before her own adultery could be recovered from her husband. And in a subsequent case it was held that adulterous conduct of the wife, with the connivance of the husband, or at least without such a separation of the married pair as to make her miscon- duct notorious, would not, per se, operate as a defence and protect the husband from liability.^ And more to the point is a case decided only a short time ago, where the husband was held liable, even though the wife had been found guilty of adultery in the divorce court ; since it appeared that he also had been found guilty of adultery, so that no divorce w^as decreed.^ There is a dictum of Lord Holt to be found in an old case (or rather in the reporter's note), which sometimes finds its way to the text-books ; namely, that if a husband re- ceives back * his wife, he becomes liable for her debts * 93 contracted during the whole period of her unauthorized absence.^ This seems very unreasonable, where the fault was on her part. The true doctrine is, doubtless, that after such reconcihation the husband is liable upon her subsequent 1 Harris v. Morris, 4 Esp. 41 ; IloLison v. Gosnold, 6 Mod. 171 ; Holt v. Brien, 4 B. & Aid. 252; Quinoy v. Quincy, 10 N. H. 272 ; Hall v. Hall, 4 ib. 402. ••i 6 T. TJ. 603. 3 Norton r. Fazan, 1 B. & P. 226. * Needliaiii v. Breniner, L. R. 1 C. P. 582. * Robison v. Gosnold, 6 Mod. 171. See Bing. Inf. 190 »., Am. ed. [93] * 93 HUSBAND AND WIFE. contracts only. And this is the rule expressly asserted in some American cases. ^ How far the wife can contract liability for necessaries in her own person, when the husband is discharged by her delin- quency, was considered in the case of 3Iarshall v. Button.^ Lord Kenyon observed, that it was not a necessary conse- quence of the determination of the husband's responsibilty that the wife should be at liberty to act as a feme sole ; but that the contrary was the truth ; and that any persons know- ino- her condition who chose to trust her could not complain if they found themselves unable to sue her. But these re- marks are very cautiously put ; and it seems reasonable to suppose, as Justice BuUer expresses himself in the case upon which Lord Kenyon commented, that the wife would become liable therefor ; certamly if she represents herself as a single woman.3 It is to be carefully observed that whenever husband and wife separate, under circumstances showing misconduct on the part of either, the presumption of agency changes sides. While they cohabit it is for the husband to show a want of authority ; when they cease to cohabit the tradesman must prove au- thority ; that is to say, he must prove that the wife was in need of the goods, that the husband failed to supply her, and that the husband and not the wife was at fault. Prima fade, therefore, a woman living apart from lier husband, upon involuntary separation, has no authority to bind him.^ * 94 * The wife of a lunatic living separate from her in an asylum, may yet pledge his credit for necessaries.^ 1 Williams v. Prince, 3 Strobh. 490 ; Eeese v. Chilton, 26 Mis. 598. See also Chitty Contr. 168 ; Williams v. McGahay, 12 Johns. 293. 2 8 T. K. 547. 3 Cox V. Kitchin, 1 B. & P. 889. See Childress v. Mann, 33 Ala. 20G ; Mc- Henry v. Davies, L. R. 10 Eq. 88 ; and separate estate rights, infra. * Etherington v. Parrott, 2 Ld. Raym. 1006 ; Mainwaring v. Leslie, 1 Mood. & Malk. 18 ; Montague v. Benedict, 3 B. & C. 631 ; per Lord Tenterden, Clif- ford V. Laton, Mood. & Malk. 101 ; 3 Car. & P. 16 ; Bird v. Jones, 8 M. & R. 121 ; Walker v. Simpson, 7 W. & S. 83; Mitchell v. Treanor, 11 Geo. 324 ; Rea V. Durkee, 25 111. 603 ; Pool v. Everton, 5 Jones, 241 ; Porter v. Bobb, 25 Mis. 36 ; Stevens v. Story, 43 Vt. 327 ; Sturtevant v. Starin, 19 Wis. 268. But see Frost V. Willis, 13 Vt. 202. 5 Reed v. Legard, 4 E. L. & Eq. 523 ; Shaw v. Thompson, 16 Pick. 198. A [94] WIFE'S DEBTS AND CONTRACTS. * 94 But not, it would seem, Avhere he is in prison ; for then the law recognizes her as feme sole} If the wife be in an insane asylum, the husband is not the less liable for her support.^ But not where she is in prison.^ And it seems that under circumstances of misconduct on the wife's part the husband may compel her to assent, after her release from confinement, to live separate on an allowance, without being chargeable for her support as one who has turned his wife out of doors.^ The fact that a wife is left by her husband without means of support does not authorize her to give away household furniture, which he left in her possession, in payment of nec- essary services to herself.^ But money advanced for and applied to her support, under like circumstances of abandon- ment, may te recovered of him in equity.*^ But besides involuntary separation, there is the case of voluntarj' separation to be considered. This last, now so frequent, the law tolerates, but does not favor. The rule is, that where a husband and wife parted by mutual consent, and a suitable allowance is furnished the wife, the husband is not bound to pay any bills which she may have contracted as his agent.' It is enough that the separation be a matter of com- mon reputation where he resides. But to this allowance two things are requisite : first, that it shall be really sufficient for the wife ; second, that it shall be regularly paid. If either requirement be wanting, the wife is not confined to her remedy on the deed of separation, if any, but may wife who receives sufficient income cannot pledge the credit of lier lunatic hus- band beyond it, even on the plea of necessary house repairs. Kichardson v, Du Bois, L. R. 5 Q. B. 51. 1 Reeve Dom. Rel. 80. 2 Wray v. Wray, 33 Ala. 187. And see Alna v. Plummer, 4 Greenl. 258 ; Wray v. Cox, 24 Ala. 387 ; Brookfield v. Allen, 6 Allen, 585. 8 Fowler v. Sir John Dineley, 2 Stra. 1122. See Bates v. Enright, 42 Me. 105. * Sec n. 2, supra. 6 Edgerly v. Whalan, lOG Mass. 307. 6 Deare v. Soutten, L. R. Eq. 151. And see supra, p. 79. ' Dixon V. Hurrell, 8 Car. & P. 717; Todd v. Stokes, 1 Salk. 116; 1 Ld. Raym. 444 ; Hindley v. Westmeath, 6 B. & C. 200 ; Migen v. Peck, 3 M. & W. 481 ; Reeve v. Marquis of Conyngham, 2 Car. & K. 444 ; Calkins v. Long, 22 Barb. 97 ; Kemp v. Downham, 6 Harring. 417 ; Caney v. Patton, 2 Ashm. 140 ; Baker v. Barney, 8 Johns. 72 ; Mott v. Comstock, 8 Wend. 644 ; Willson v. Smyth, 1 B. & Aid. 801. [95] * 94 HUSBAND AND WIFE. * 95 pledge her husband's credit. *As to the first require- ment, the question is not Avhether the wife consented to accept a certain allowance as sufficient for her support, but whether it be actually sufficient in the opinion of the jury.^ As to the second, the mere covenant or contract of the hus- band to pay separate maintenance will not discharge him from liability for necessaries ; for, as was observed in a lead- ing case, " the common law does not relieve any man from an obligation on the mere ground of an agreement to do something else in the place, unless that agreement be per- formed." ^ But perhaps it would be held otherwise where articles of separation provide that the wife shall be paid through a trustee, and the trustee squanders or misapplies the allowance which is properly paid into his hands.^ Allow- ance of a separate maintenance will not exempt the husband from liabilities caused b}^ his own misconduct.'^ Where a husband compels his wife to live apart from him by his misconduct, he is liable for her necessaries, notwith- standing his allowance, so long as that allowance is insuffi- cient, and she has no proper means of support.^ The payment of alimon}^, although insufficient, will dis- charge the husband from liability for his wife's necessaries.^ But the husband is liable for necessaries supplied to the wife before alimony is decreed, although the decree afterwards direct the alimony to commence from a day preceding the supply of the necessaries." It is immaterial whether the wife's allowance be secured by deed or not, since it is the payment which discharges him.^ And of course, where 1 Thompson v. Harvey, 4 Burr. 2177 ; Hodgkinson v. Fletcher, 4 Camp. N. P. 70; Pearson v. Darrington, 32 Ala. 227; Litldlow v. Wilmot, 2 Starkie, 77; Emmet v. Norton, 8 Car. & P. 506. 2 Nurse v. Craig, 5 B. & P. 148, per Heath, J. ; Hindley v. Westmeath, 6 B. & C. 200; Lockwood v. Thomas, 12 Johns. 248; Kimball v. Keyes, 11 Wend. 33. 3 Calkins v. Long, 22 Barb. 97. But see Burrett v. Booty, 8 Taunt. 343. 4 Turner v. Rookes, 10 Ad. & El. 47. 5 Litson V. Brown, 26 Ind. 469 ; Baker v. Sampson, 14 C. B. N. 9. 383. 6 Willson V. Smyth, 1 B. & Ad. 801. T Keegan v. Smyth, 5 B. & C. 375; Mitchell v. Treanor, 11 Geo. 324. See Dowe V. Smith, 11 Allen, 107 ; and infra, ch. 17. 8 Hodgkinson v. Fletcher, 4 Camp. 70 ; Emery v. Neiglibor, 2 Halst. 142 ; Holden i;. Cope, 2 Car. & K. 437. But see Ewers v. Hutton, 3 Esp. 255. [ ye ] WIFE'S DEBTS AND CONTRACTS. * 95 the fact of separation is not commonly known, or where by occasional visits the husband keeps up the appearance of cohal)itation with his wife, he is j^rirna * facie liable * 9G as before ; ^ though notice of an allowance is notice of his dissent to the wife's contracts.^ He may agree with the wife's tradesman, while living apart fi-om her, that the goods supplied shall not be charged to him ; and to such special agreement the tradesman will be held.^ Courts will always regard the rule of good faith in matters relative to the wife's necessaries. Thus if the husljand and wife be living apart without the husband's fault, and he wislies to terminate his liability by requesting her to return home, his conduct must show sincerity ; though, if his intentions are bona ficle^ and he makes suitable provision at his own home, the wife forfeits all claim to further support by refusing to return.* So where a husband expels his wife and afterwards designedly misleads her into the belief that he is dead, where- upon she marries another with honest motives, and leaves him at once on learning that her husband is alive, her hus- band cannot set up her bigamy as a defence to an action against him for her subsequent necessaries." The case of Johnston v. Sumner came before the English Exchequer Court in 1858.^ A married pair had separated by mutual consent, with the understanding that the wife should receive .£200 a year, for her maintenance, from a fund settled on her at the time of marriage. A third person, wlio after- wards supplied her with necessaries, sued the husband to recover payment. The court ruled that the latter was not liable unless the plaintiff could show that the wife's allow- ance was insufficient ; that the burden of proof was upon him and not upon the husband. In this case the law of agency for necessaries was very fully discussed, and the prin- ciple laid down that whether separation be voluntary or involuntary, so * long as the parties live apart the * 97 1 Kawlins v. Vandyke, 3 Esp. 250, per Lord Eldon. 2 Hiiiton V. Hudson, Freem. 248; Kimball v. Keyes, 11 "Wend. 33. 3 Dixon V. Hurrell, 8 Car. & P. 717. 4 Walker v. Laiglilon, 11 Foster, 111. 5 Cartwriglit v. Bate, 1 Allen, 514. Ste Tidgin v. Cram, 8 N. H. 350. 6 3 Hurl. & Nor. 2G1. 7 [97] * 97 HUSBAND AND WIFE. burden of proof is upon the person who supplies the com- modities. Chief Baron Pollock, after stating that the only- ground of the husband's liability for his wife's necessaries, in am?- case, is that of agency, observes, that this agency may be either exj^ress or implied, arising sometimes from con- duct which induces others to believe that an agency in fact exists ; or that there may be an agency of necessity, such as the captain of a ship sometimes exercises. If a man and his wife live together, it matters not what private agreement they may make, the wife, as such, has authority to bind him. If the husband turns her away, it is not unreasonable to say that she has an authority of necessity ; for she by law has no property, and cannot earn her own living. If, however, she leaves against his wdll and without misconduct on his part, she has none of the ordinary authorities of a wife, for she is not in the ordinary case of a wife, namely, living with her husband ; nor has she authority of necessity, because she has brought the condition on herself. She has no express or implied authority. Now suppose she leaves with his consent, but without misconduct on his part, she has not the ordinary authority of a wife living with her liusband, nor any au- thority of necessity. Her authority must therefore be express or implied. It is admitted that in this case there was no ex- press authority. But was there an implied authority ? Now, where they part by mutual consent, and nothing is said of an allowance, and she has no means of support, a jury might infer that the husband meant that his credit should be pledged, — perhaps even though he said otherwise. But upon what principle can an authority be imjilied where they part upon terms negativing any authority in her, and making a provision for her not shown to be insufficient for her main- tenance ? The case is not essentially different from that of a wife leaving against her husband's will ; nor can the line be readily drawn so as to distinguish the two. " We think the more convenient rule is that which we have suggested ; * 98 namely, an authority must be shown, and shown * in one or the other of the ways we have mentioned." ^ 1 Per Pollock, C. B., Johnston v. Sumner, 3 Hurl. & Nor. 261. See also Ozard V. Darnford. 2 Sel. N. P. 275, 10th ed.; Hodgkinson i: Fletcher, 4 Camp. 70; [98] "WIFE'S DEBTS AND CONTRACTS. * 98 Such, in brief, is tlie law of the wife's agency in procuring necessaries, as expounded by recent English authority. This decision is chieflj' as to the burden of proof ; the requirements being usually as we have stated. The wife may bind her husband for other contracts than those for necessaries, where an agency, express or implied, can be shown. The natural incapacities of her sex superadded to those of the marriage state, the practical difficulties which persons dealing through such an agent must encounter, par- ticularly where they find she has exceeded her authority, and yet cannot hold her liable in person, her own exposure to fraud, deceit, and coercion, — all these combine to render the wife an undesirable business representative ; and cases of this sort come rarely before the courts. But the wife may be delegated an attorney, even under a sealed instrument.^ And on principle there is little reason to doubt her capacity to bind her husband in all general transactions where he has given an express authority. So too her agency may be in- ferred from his acts and conduct respecting her ; and the general rule aj^plies that such agency is to be measured by the scope of the usual employment.^ The usual cases in which a wife binds the husband on contracts * not for necessaries may be reduced to two * 99 classes : the one where the nature of his employment is such that the wife is expected to share in it ; the other where he is absent from home, and some one must carry on the Liddlow V. Wilmot, 2 Stark. N. P. 77 ; Emmet v. Norton, 8 Car. & P. 506 ; Nurse r. Craig, 5 B. & P. 148 ; Willson v. Smith, 1 B. & Ad. 801 ; Holden v. Cope, 2 Car. & K. 4.37; 2 Roper Hus. & Wife, 108, wiiich are all commented upon in tiiis case, and doctrine of 2 Smith's Lead. Cas. 389, denied. The court considered it doubt- ful whether, if a laboring man turns his wife away, she being capable of earning, and earning as mucli as he did ; or if a man turn his wife away, she having a settlement double his income in amount, the wife in such cases could bind the husband. The drift of the law where wives own separate property, is in this case plainly indicated. See infra, ch. 12. 1 Goodwin v. Kelly, 42 Barb. 194. 2 Cox V. Hoffman, 4 Dev. & Batt. 180; Mackinley v. McGregor, 3 Whart. 369; Camelin v. Palmer Co., 10 Allen, 539; Ruddock v. Marsh, 38 E. L. & Eq. 515 ; Pickering v. Pickering, 6 N. II. 124 ; Abbott v. Mackinley, 2 Miles, 220 ; Gray v. Otis, 11 Vt. 628 ; Miller v. Delamater, 12 Wend. 433 ; Hughes v. Stokes, 21 Hayw. 372. [99] * 99 HUSBAND AND WIFE. household and small business matters. Instances of the first class are those of farmers, victuallers, and small shopkeepers.^ While, on behalf of married women, extended authority is to be miplied from the fact of a husband's absence, as in our second class, every wife will readily be regarded as her hus- band's representative in the ordinary household purchases, such as provisions and furniture, although the articles may not be strictly included among her personal necessaries. They might be called household necessaries. But where the husband is a laboring man, or in general a person obliged to be absent from his home much of the time, the presumption of the wife's agency would be stronger and extend further. If the occupation be that of carrying on a farm, or if small bills are to be collected, such as he and his wife have always attended to, her powers in his absence take a still wider scope ; and this too seems reasonable. Usage will go far in deter- mining such questions. But since persons carrying on a large business, totally distinct from their household occupa- tion, are nut in the habit of employing their wives to manage it for them, strong proof of agency for such transactions should be required to warrant a Avife's interference during her hus- band's absence ; the more so if he has left other competent aoents of his own to manage the business for him. So too in large pecuniary affairs of whatever nature her agency is not readily inferred ; while it often is in collecting rents and pay- ing tradesman's bills ; such payments and receipts being per- mitted to bind her husband. And although a wife may, by actual authority from her husband, indorse his notes, mortgage and dispose of his personal property, conduct his business as a trader, and even borrow money for carrying on his business on the pledge of his credit, signing the notes and secu- * 100 rities in his behalf, — for all this is sometimes * done, — such authority requires strict proof; or at least conduct on the part of the husband showing his own approval of such hazardous proceedings on her part.^ 1 See Webster r. McGinnis, 5 Binn. 235; Botch v. Miles, 2 Conn. 638. 2 Church V. Landers, 10 Wend. 79 ; Gates v. Brower, 5 Seld. 205 ; Leeds v. Vail, 15 Penn. St. 185; Alexander v. Miller, 16 Penn. St. 215; Burk v. How- ard, 13 Mis. 241 ; Godfrey v. Brooks, 5 Harring. 396 ; Savage i'. Davis, 18 Wis. [100] WIFE'S DEBTS AND CONTRACTS. * 100 The difficulty of laying down a more positive rule on this subject is shown by two cases which came before the courts of two of our neighboring States, not many j'ears since, on a presentation of facts ahuost identical, but where the respec- tive decisions were precisely opposite. A farmer was absent from home. His wife had been left in charge of the farm, but without express authority from him. A creditor attached the real estate and crops ; and she permitted the hay after attachment to be used by the officer ; to the advantage of the creditor, or at least to her husband's detriment. In the Vermont case, it was held that the wife had a jjrima facie authority to bind her husband ; in the Connecticut case, it was held that she had not. Neither of these tribunals erred in their statement of leading principles, but their duty here being ratlier an application of broad rules to facts, than a clearly legal deduction, they differed just as two men would have done, sitting upon a jury.^ In accordance with the princij)les just stated, it is recently held, that where a husband permits his wife to carr}- on a certain business in his name, and to draw in his name checks and notes to be used in the course of the business, she cannot make him liable as surety for loans to third persons, or upon 608; Krebs v. O'Gradjr, 23 Ala. 726; Sawyer v. Cutting, 23 Vt. 486; Shaw v. Emery, 38 Me 484 ; Spencer v. Tisue, Addis. 316 ; Green v. Sperry, 16 Vt. 390; Reakert v. Sandford, 5 Watts & Serff. 164; Abbott v. M'Kinley, 2 Miles, 220; Mayse v. Bigjrs, 3 Head, 36; Shoemaker l: Kuiikle, 5 Watts, 107; Gil- bert V. Pliint, 18 Iiul. 308. See subsequent chapters as to wife's power to bind re.'il estate by her contracts. It seems that contracts made by tiie wife as agent, including promissory notes, should show such authority on the face. Minard v. Mead, 7 Wend. 08; Galusha v. Ilitclicock, 2'.> Barb. V.)3 ; 2 Man. & Or. 172. 1 Felker v Emerson, 16 Vt. 653 ; Benjamin v. Benjamin, 1.5 Conn. 347. A third person may be sued on a contract made with a married woman after she has performed her part, although she had no right to make it. Ham v. Boody, 20 N. H. 411 ; Lowry v. Naff, 4 Cold. 370. See 1 Greenl. Evid. § 185 ; Plim- mer v. Sells, 3 N. & M. 422 ; Dodd v. Acklom, 6 M. & Gr. 673 ; Thrasher v. Tuttle, 22 Me. 335; Hopkins v. Mollineux, 4 Wend. 465; Fiimer v. Lynn, 4 N. & M. 55'J ; Taylor v. Green, 8 Car. & P. 316 ; Gulick v. Grover, 4 Vroom, 463, as to the rule of evidence sufficient to show tiie wife's authority to manage her husband's business. The principles of ordinary agency generally apply in such cases. See also Wharton v. Wright, 1 Car. & K. 585 ; Clifford r. Burton, 1 Bing. 199; Pett3^ v. Anderson, 3 Bing. 170; Emerson ;;. Blounden, 1 Esp. 142. [101] * 100 HUSBAND AND WIFE. mere accommodation paper, merely because of such an agency.^ And where her agency extends only to the performance of certain specific acts of a general transaction, she cannot bind him by her acts and admissions respecting other matters con- nected with the general transaction.^ Acts done by the wife in relation to her husband's property, without authority, should, of course, be promptly disavowed by him within a reasonable time, if he wishes to escape responsibility.^ Her sale or gift of his personal property, even without authority, may be confirmed by his subsequent acts amounting to ratifi- cation.* The wife may represent her husband, not only in the general management of his own lands, so as to bind him, but, under certain circumstances, with reference to her real estate in which he has the usual marital rights, or lands owned partly by her and partly by him.^ 1 Gulick V. Grover, 2 Vroom, 182 ; 4 Vroom, 463. 2 Gooilrich v. Tracy, 43 Vt. 314. '^ Plill V. Sewald, 53 Penn. St. 271. See Header v. Page, 39 Vt. 306, where a wife, in contracting a loan, was held to have acted within tlie scope of her apparent agency. As to the revocation of a liusband's license to hunt, see Kel- logg V. Robinson, 82 Conn. 335. 4 Dunnahoe v. Williams, 24 Ark. 264 ; Pike v. Baker, 53 111. 163. Even a trifling gift from the wife by way of charity has been upheld, though witliout the husband's permission. Spencer v. Storrs, 38 Vt. 156. See, as to real estate, p. 157. 5 See Cheney v. Pierce, 38 Vt. 515 ; Dresel v. Jordan, 104 Mass. 407. [102] WIFE'S INJURIES AND FRAUDS. * 101 * CHAPTER IV. *101 THE EFFECT OF COVERTURE UPON THE WIFE's INJURIES AND FRAUDS. Frauds and injuries may have been committed upon the wife ; or they may have been committed by the wife. Again they may have been committed before coverture ; or they may have been committed during coverture. Once more, the}^ may have reference to the person ; constituting a bodily injury, such as assault and battery, or an injury to the char- acter, such as slander ; or they may have reference to prop- erty. But in any event, so far as the fraud or injury is made the subject of a civil suit, the general principle of the wife's disability remains the same ; namely, that the husband com- pensates or receives the compensation. This principle does not of course extend to criminal prosecu- tions. For, as Blackstone observes, the union is only a civil union. ^ Or, to come more to the point, it would be cruel and unjust to punish one person for the crime of another, or even to compel the two to bear the penalty together ; while it would be impolitic, as well as unjust, to allow any relation which human beings, morally responsible, might sustain with one another to absolve either from civil accountability. Here coverture as a theory contradicts itself, by leaving the wife answerable alone for her crimes, just as a single woman. The utmost the law can do is to furnish a presumption of innocence in her favor in cases where the coercion of her husband may be reasonably inferred. This indulgence, it is said, is carried so far as to excuse her from punishment for theft, burg- lary, or other civil offences " against the laws of society," 1 1 Bl. Com. 443. [103] * 101 HUSBAND AND WIFE. * 102 when committed in the presence or by the * command of her husband ; but not so as to exculpate the wife for moral offences. For mala prohibita she is not punished, for mala in se she is. Such a distinction is variable and somewhat shadowy ; the line seems to be drawn more wiselj^ if at all, between such heinous crimes as murder and manslaughter, and the lighter offences. ^ And the better opinion is, decidedly, that in all cases coercion is only a pre- sumption, which may be rebutted by evidence to the con- trary."^ As to private wrongs the question occurs, why should the husband be made to stand in the wife's place where the offence is considered against an individual, any more than when it is between herself and the State. This seems to be the true answer, as in case of her debts dum sola ; namely, that the husband adopts her and her circumstances together ; that he takes her fortune, if she has one, and assumes all possible liabilities therefrom. We must however notice one important distinction made between the wife's general contracts and her frauds and in- 1 2 Kent Com. 11th ed. 150; 4 Bl. Com. 28, 29, and Christian's notes; 1 Hawk. P. C. b. 1, ch. 1, § 9; 1 Russ. Crimes, 18-24. '^ 2 Kent Com. 11th ed. 150; State w. Parkerson, 1 Strobh. 169; 1 Russ. Crimes, 22; Rex v. Martha Hughes, coram Thomson, B., 2 Lew. C. C 229; Ulil V. Commonwealth, 6 Gratt. TOG ; Wagener v. Bill, 19 Barb. 321. But a wife cannot be convicted of feloniously receiving stolen goods from her husband. Regina v. Brooks, 14 E. L. & Eq. 580. And see Regina v. Robinson, L. R. 1 C. C. 80. See also, on the general subject of coercion, 8 Car. & P. 19, 541 ; Anon., 2 East P. C. 559 ; 1 Greeul. Evid. 10th ed. § 28. In general, the presumption of coercion is regarded as something to be easily rebutted, in the latest cases where the wife has been indicted; especially in tliat class of cases which relates to the illegal sale of liquors, a business in which married women frequently engage. State v. Cleaves, 59 Me. 298 ; Commonwealth v. Tryon, 99 Mass. 442. As to assault and battery, see State v. Williams, 65 N. C. 398. And as to stolen goods concealed in a house occupied by both husband and wife, see Perkins v. State, 32 Tex. 109. Both husband and wife may, of course, be found guilty of a crime. See Mulvey v. State, 43 Ala. 316 ; State v. Potter, 42 Vt. 495. As to whether a wife is exempt from criminal responsibility for what she does while her husband is absent, see State v. Potter, 42 Vt. 495; Commonwealth v. Lewis, 1 Met. 151 ; Commonwealth v Fconey, 12 Allen, 560. Presumi)tion of coercion rebutted in a murder case, wliere wife had conspired with her husband to commit robbery. Miller v. State, 25 Wis. 384. [104] WIFE'S INJURIES AND FRAUDS. * 102 juries. In the one case the husband is held liable to third parties for her acts as agent, even though never married to her; and sinq^le cohaljitation is sufficient to charge him. But simjjle cohabitation will not be enough to make him respon- sible for her civil injuries. Marriage in fact must appear. And this last principle applies likewise where he seeks indem- nity for her injuries.^ The facility with which an agency is created at law may serve to explain the difference between the two cases. The general rule of law is that the husband is liable for the frauds and injuries of the wife, whether committed before or * during coverture ; if committed in his com- * 103 pany or by his order, he, and he alone, is liable ; otherwise, both are, for the time being, liable.^ For where the fraud or injury is committed in his company or by his order, coercion is presumed, and the husband becomes the only wrong-doer ; and where committed without his order and in his absence, the wife is, in reality, the offending party, while the husband has become responsible for her acts by reason of her coverture. In the latter class of cases the hus- band is properly joined with his wife in the suit ; for if the wife alone Avere sued, his property might be seized without giving him an opportunity for defence ; and if the husband alone were sued, he would become chargeable absolutely. In the former class of cases the husband is sued alone.^ The last statement suggests that the husband's liability is after all a limited one, where he, in the first instance, was free from wrong ; that is to say, that the death of the wife before the recovery of damages puts an end to his liability altogether. This is correct, not only on the principle an- nounced in the case of the wife's debts dum sola, but because wrongs being personal, die with the person, which last is the 1 Overholt v. Ellswell, 1 Ashm. 200. See Norwood v. Stevenson, Andr. 227. 'i 2 Kent Com. 149 ; Bing. Inf. 256, 257 ; Angel v. Felton, 8 .Johns. 149 ; Gage V. Reed, 15 111. 403 ; Carl v. Wonder, 5 Watts, 97 ; Whitman v. Delano, 6 N. H. 543 ; Gray v. Tliacker, 4 Ala. 136 ; McKeown v. Johnson, 1 MeCord, 578 ; Ben- jamin V. Bartlett, 3 Miss. 86 ; Wrigiit v. Kerr, Addis. 13 ; Cassin i'. Delany, 38 N. Y. 178 ; Bali v. Bennett, 21 Ind. 427 ; Marshall v. Oakes, 51 Me. 308. » Park V. Hopkins, 2 Bailey, 411 ; Matthews v. Fiestel, 2 E. D. Smith, 90. [105] * 103 HUSBAND AND WIFE. common explanation of this rule. If the husband dies before damages are recovered in the suit, the wife alone remains liable.^ So it would seem that the common law recognizes a liability on her part which continues through the marriage relation ; coverture operating, however, so as to suspend the remedy against the married woman, and to bring in as a joint party the custodian of her fortune. This presumption of coercion, too, is much the same in civil as in criminal offences. A wrong committed by * 104 the wife in company * with her husband, or by his order, is presumed to have been involuntary on her part and compelled by her husband ; and we have supposed that this presumption may be, in either instance, controlled by evidence to the contrary. The legal definition "in com- pany with "the husband should, however, receive a liberal interpretation, so as to include all cases of constructive pres- ence. It is said that the privilege of presumptive coercion extends to no other person than a wife, not even to a ser- vant.2 Hence husband and wafe are sued together for the libel or slander of the wife ; and generally for forfeitures under a penal statute.^ So too for assault and battery.^ The fact that the husband is made responsible by the fact of coverture, and did not commit the wrong in person, cannot go in mitiga- tion of damages.^ The husband has full management of the defence. And we need hardly add that he may compromise 1 2 Bright Hus. & Wife, 22 n. ; and see Stroop v. Swarts, 12 S. & R. 76. 2 Reeve Dom. Rel. 72 ; Barnes v. Harris, Busbee, 15 ; GriflBn v. Reynolds, 17 How. (U. S.) 609. See Cassin v. Delany, 38 N. Y. 178. 3 Austin V. Wilson, 4 Gush. 273 ; McQueen v. Fulgham, 27 Tex. 4G3 ; Baker V. Young, 44 111. 42 ; Enders v. Beck, 18 Iowa, 86. 4 Griffin v. Reynolds, 17 How. (U. S.) 609; Roadcap v. Sipe, 6 Gratt. 213. See Miller v. Sweitzer, 22 Mich. 891 ; Tobey v. Smith, 15 Gray, 535. For a peculiar state of facts, see Rowing v. Manley, 57 Barb. 479. As to suits to recover usury, see Jackson v. Kirby, 37 Vt. 448 ; Porter v. Mount, 45 Barb. 422. And as to suit for the conversion of stolen millinery by the wife, see Heckle v. Lur- vey, 101 Mass. 344. See Gove v. Farmers', &c., Ins. Co., 48 N. H. 41, where a liusband, the owner of insured buildings, being guilty of no fraud or gross negligence, was per- mitted to recover money on the insurance policy, although his insane wife had set the buildings on fire. 5 Austin V. Wilson, 4 Gush. 273. [106] WIFE'S INJURIES AND FRAUDS. * 104 without his wife's assent. ^ His liability lasts so long as the relation lasts, even though the married pair he permanently separated; but not perhaps if the wife be living in adultery at the time the wrong was committed.^ A divorced man is not liable to the joint action for a tort committed during mar- riage by the woman from whom he is divorced.^ There are however not only torts simpliciter^ or simple wrongs at law, but wrongs where the substantive basis of the fraud is the wife's contract. The common law has been sup- posed to apply with the same force in both cases, partly because in the latter instance the person injured would be otherwise without a remedy.* This point came directly before the Court of Exchequer in 1854, for decision. The circumstances of the case were as follows: A man applied for a loan of £30 to a loan associa- tion, upon the security of a promissory note, to be signed by himself * and sureties. One of the sureties * 105 was a married woman who falsely represented herself to the association as single. The security was accepted and the loan made. Afterwards the loan association, recurring to the sureties for payment of the note, sought to make her husband liable on the note, alleging her fraud. The court decided that the action was not maintainable ; on the ground that though the husband is liable for the wife's general frauds, yet when the fraud is directly connected with her contract, and is the means of effecting it and part and parcel of the same transaction, the wife cannot be responsil)le, nor can the husband be sued for the fraud together with the wife.^ But there are cases where the wife will bind her husband by her fraudulent representations on the ground of her agency. 1 Co()li(l Snialley i-. Anderson, 2 Monr. 5G ; Davies v. Solomon, L. R. 7 Q. B. 112; Throgmorton v. Davis, 3 Blackf. 383. These words must be actionable per se. See Beach v. Ranney, 2 Hill, 309 ; Saville v. Sweeney, 4 B. & Ad. 514 ; Ryan V. Madden, 12 Vt. 51. As to malicious prosecution, see Laughlin v. Eaton, 64 Me. 154. 7 Pillow V. Bushnell, 5 Barb. 15G. 8 Heirn v. McCauglian, 32 Miss. 17. 9 Even though it afterwards cause her death. Cross v. Guthery, 2 Root, 90; Hyatt V. Adams, 16 Mich. 180. 1" Fowler i-. Frisbie, 3 Conn. 320. But see Crump v. McKay, 8 Jones, 32, as to negligence " sounding in contract," not admitted to be cause of action. [109] * 107 HUSBAND AND WIFE. is the same in all these cases, whether the fraud or injury was committed before or during coverture. But if the wife be a privy to the wrong, or knowingly suffers an injury to be com- mitted upon her, the husband cannot maintain his action ; for his right to damages cannot be greater than hers would have been, had she remained single.^ Nor can an action be main- tained where the husband instigates the wrong.^ In a joint action for personal ^\Tong to the wife, the declaration should conclude " to their damage." ^ And it is a well recognized principle, both in England and America, that whenever the wife is the meritorious cause of action, her interest must appear on the face of the pleaduigs or the omission will be considered fatal."^ The damages allowed as compensation for the frauds and injuries sustained by the wife go to the husband, as well as the rest of her personal property, if recovered during his life- time. But such suits survive to her ; and on the death * 108 of the husband, * pending legal proceedings, the wife may proceed to judgment and collect the damages for herself ; or if her husband had never brought an action, she may then do so in her own right.^ The husband, on the other hand, has no such interest in the suit at common law that he may prosecute it in his own name after his wife's death. His joinder in the first place was only because of the marriage relation. He may, however, under some statutes, be let in as her administrator, and in such capacity prosecute the suit to its conclusion.^ If the wife dies after judgment, the husband surviving may take the benefits of the suit: for a judgment debt takes the place of the original cause of action. The 1 rillow V. Bushnell, 5 Barb. 156. 2 Tibbs V. Brown, 2 Grant's Cases, 39. Nor in slander wliere the words are not actionable, though the wife become ill in consequence of tlie slanders. Wil- son V. Goit, 17 N. Y. 442. 3 Horton v. Byles, 1 Sid. 387 ; Smalley v. Anderson, 2 Monr. 56. * Staley v. Barhite, 2 Caines, 221 ; Serres v. Dodd, 5 B. & P. 405; Thorne V. Dillingham, 1 Denio, 254 ; Pickering i-. De Rochemont, 45 N. H. 67. 5 Bing. Lif. & Gov. 247, 248 ; Newton v. Hatter, 2 Ld. Raym. 1208. 6 Chitty PI. 74; Norcross v. Stuart, 50 Me. 87; Pattee v. Harrington, 11 Pick. 221 ; Crozier v. Bryant, 4 Bibb, 174 ; Saltmarsh v. Candia, 51 N, H. 71. [110] WIFE'S INJURIES AND FRAUDS. * 108 death of the wife, pending suit for her personal tort, put an end to the action altogether by the old law.^ Since the husband is at the common law entitled to the society and services of his wife, two separate causes of action may arise from injuries inflicted upon her person. One, in the name of both for her own injuries, we have just con- sidered ; the other is in the name of the husband alone per quod consortium amisit? Thus, if the wife be wantonly bruised and maltreated, her husband may bring his special action p^^r quod for the loss of her society and his medical expenses. But there can be no special damage recovered by the husband by way of aggravation in the joint suit for his wife's injuries. Thus, if the action be for an assault on the wife, the surgeon's bill cannot be recovered ; if for slander of the wife, the loss of wages cannot be claimed ; there the sole right of tlie husband should be sued for in his name.^ It would appear that the husband may release the damages for * his wife's injuries, and then recover for * 109 the loss arising to himself alone.* Of the suits which the husband may bring for loss of his wife's society, that for enticing a wife away has already been considered.^ Some- what akin to this is his action for his wife's seduction, founded on the same general marital rights. But the common law still keeps up its legal fiction of the wife's civil incapacity, and treats the seducer as guilty of trespass by force of arms, whether the wife actually consent to the guilt or not.^ The ' Bac. Abr. Baron & Feme (K.). 2 3 Bl. Com. 140; Cro. Jac. 501; ib. 538. See also Brockbank r. White- haven Junction R. R. Co., 7 Hurl. & Nor. 834 ; Whitconib i'. Barre, 37 Vt. 148 ; Kavanaugh v. Janesville, 24 Wis. 618 ; Hooper v. Haskell, 56 Me. 251. In Yundt V. Ilartrunft, 41 111. 9, it is held that the right of a husband to sue for the seduction of his wife per quod is not defeated by her death before action brought. ^ Dengate v. Gardiner, 4 M. & W. 6. See Lewis v. Babcock, 18 Johns. 443. An action cannot be in general maintained by the wife, there being no mis- feasance towards her independently of a contract with the liu!( seq., and cases cited; Scawen v. Blunt, 7 Ves. 294; Langliam v. Nenny, 3 Ves. 467; Tritt v. Colwell, 31 Penn. St. 228; Needles v. Needles, 7 Ohio St. 432; Burleigh v. Cof- fin, 2 Fost. 118. * Wa lar v. Walker, 41 AJa. 353. [117] * 114r HUSBAND AND WIFE. otherwise reducing them to possession. But until * 115 such disagreement, * such choses in action belong to the wife, and, if not reduced into possession by the husband, will likewise survive to her.^ It becomes important, therefore, to distinguish the wife's things in action from her things in possession. To the class of things in action belong such property as rests upon oljliga- tion, contract, or other security, for payment ; and not only rights presently vested and capable of immediate reduction to possession, but those which are contingent upon some event or reversionary upon some prior interest.^ Debts owing the wife, arrears of rents, of profits, and of income, also out- standing loans, are plainly choses in action.^ Money due on mortgage is, before foreclosure, a chose in action, and even though lent before coverture with covenants running to the wife's heirs or executors, it must follow the usual rule.* So are bonds and certificates of stock.^ Income of a chose in action is as much a chose as the principal itself; and accord- ing to the ordinar}^ rule the wife becomes entitled to it by survivorship.*^ A devise of land to be sold and proceeds to be divided among certain persons, gives to each a chose in action.'' Bills of exchange and promissory notes, unlike other choses in action in being legally transferable by simple indorsement, are now considered choses in actiori of a peculiar nature, though it was formerly thought that they vested absolutely in the husband by marriage ; ^ and bank * 116 checks and public securities of a * negotiable charac- 1 Coppin V. , 2 p. Wms. 497 ; Day v. Padrone, 2 M. & S. 396, n. ; Howell V. Maine, 3 Lev. 403 ; Wildman v. Wiklman, 9 Ves. 174 ; 1 Bright Hus. & Wife, 37 ; 2 Kent Com. 135, and cases cited ; Wilkinson v. Charlesworth, 11 Jur. 644; Standeford v. Devol, 21 Ind. 404. See also clis. 7, 8. ^ See Bell Hus. & Wife, 52. 3 1 Brirrlit Hus. & Wife, 36 ; Clapp v. Stoughton, 10 Pick. 463. * Bell IIus. & Wife, 52; contra. Turner r. Crane, 1 Vern. 170; Rees i'. Keith, 11 Sim. 388. ^ Slaymaker v. Bank, 10 Penn. St. 373. •> Wilkinson v. Charlesworth, 11 Jur. 644. 7 Srailie's Estate, 22 Penn. St. 130. And see Wells v. Tyler, 5 Fost. 340. 8 Caters v. Maddeley, 6 M. &.W. 423; Nash v. Nasli, 2 Madd. 133 ; 1 Roper Hus. & Wife, 211 ; 1 Bright Hus. & Wife, 37 a, 38; Richards v. Richards, 2 B. & Ad. 447 ; Scarpellini v. Acheson, 7 Q. B. 864 ; 9 Jur. 827 ; Phelps v. Phelps, 20 Pick. 556 ; Hay ward v. Hayward, ib. 525; Lend^rman v. Talley, 1 Houst. 523. [118] WIFE'S PERSONAL PROPERTY. * 116 ter may be placed in the same class. Legacies and distrib- utive shares are sometimes treated as though they vested absolutely in the husband without reduction into possession ; but unquestionably the better opinion is tliat they are chases in action, in which case the creditor of tlie husljand ought not to be allowed to attach them before the latter has done some act disaffirming his wife's title.^ The wife's choses in action must not be confounded with her goods or specific chattels in the hands of third parties, which, unlike her choses in action, vest in the husband absolutely by the mar- riage. ^ What acts on the husband's part amount to an appropria- tion of his wife's choses in action, or in other words consti- tute reduction into possession so as to bar her rights by survivorship, may here be fitly considered. Mere intention on his part is not sufficient. The purpose must be followed by some positive act asserting an ownership.^ Nor is actual possession of the chose in action a sufficient reduction 2)er se, for the husband's intention may be to hold it in the right of another. Thus he may take the property in trust for his wife ; and if so he is accountable like any other trustee.'* So he may receive it as a loan from his wife, in which case he shall refund it like any other borrower. That reduction * into possession which makes the * 117 1 2 Kent Com. 135 ; cases cited in Am. editor's notes to Bing. Inf. & Gov. 209 ; Carr v. Taylor, 10 Ves. Jr. 574, 578 ; Lampliir v. Creed, 8 ib. 599 ; Palmer v. Trevor, 1 Vern. 261. See Schuyler v. Hoyle, 5 Johns. Ch. 196 ; Curry v. f ulk- inson, 14 Ohio, 100 ; Wheeler v. Moore, 13 N. H. 478 ; Harper v. Archer, 8 Sm. & M. 229; Probate Court v. Niles, 32 Vt. 775; Chappell v. Causey, 11 Geo. 25 ; Gillete v. Camp, 19 Mis. 404 ; Johnson v. Spaight, 14 Ala. 27 ; Gallego V. Gallego, 2 Brock. 285 ; Revel v. Revel, 2 Dev. & Batt. 272 ; Wallace v. Tallia- ferro, 2 Call, 447 ; Clifton v. Haig, 4 Des. 330. See contra, Albee v. Carpenter, 12 Cush. 382 ; Wheeler v. Bowen, 20 Pick. 563 ; Griswold v. Penniman,2 Conn. 564 ; Holbrook v. Walters, 19 Pick. 354. But even in Massachusetts, where the doctrine prevails which is disapproved in tiie text, it is held that if the husband die before judgment in the suit by creditors, his wife's survivorship is not barred. Strong V. Smitii, 1 Met. 476. See also Parks v. Cushman, 9 Vt. 320. 2 See supra, p. Ill, n. 1 ; Schouler Pers. Prop. 32-37. 3 Blount V. Bestland, 5 Ves. Jr. 515. * Baker v. Hall, 12 Ves. Jr. 497 ; Estate of Hinds, 5 Whart. 138 ; Mayfield v. Clifton, 3 Stew. 375 ; Resor i-. Resor, 9 Ind. 347 ; Bell Hus. & Wife, 57. See Dunn V. Sargent, 101 Mass. 336. [119] * 1 1 7 HUSBAND AND WIFE. cliose absolutely as well as potentially the liusband's, is a reduction into possession, not of the thing itself, but of the title to it.^ Constructive possessions are not favored in law when they tend to defeat the wife's survivorship. Yet reduction into possession of the wife's cliose in action^ unex- plained by other circumstances, is prima facie evidence of coiiversion to the husband's use, and is therefore effectual.^ The receipt of the husband and wife jointly for the wife's chose in action does not constitute sufficient reduction by the husband, for this is the proper form of receipt given to third parties when the fund is placed in the wife's hands. ^ But the sole receipt of the husband with intent to appropriate consti- tutes a complete reduction, the property having been dehv- ered to him instead of the wife.* It is clear that the receipt of interest due on a bond or note is not a sufficient reduction of the latter, nor of future instal- ments, although it constitutes a reduction of the particular interest instalment itself.^ The same principle applies to the conversion of stock dividends. Nothing short of the transfer of stock standing in the Avife's name to the husband's name seems to be a sufficient reduction of the stock into posses- sion.*^ Since stock which stands in the wife's name does not belong to her husband until reduced to possession by him, it follows that he cannot be made personally liable in respect to the fund where he has failed to so reduce it." As to bills and notes, there is a conflict between the * 118 earlier * and later cases, from the fact that negotiable instruments were not formerly regarded as cJioses in 1 Strong, J., in Tritt's Admr. v. Caldwell's Admr., 31 Penn. St. 233. 2 Johnston v. Johnston, 1 Grant Cas. 468. Lnpse of time may raise a pre- sumption of reduction in the husband's favor. Harper v. Archer, 28 Miss. 212. 3 Timbers v. Katz, 6 W. & S. 290. * Roll. Abr. 312, 350 ; 1 Bright IIus. & Wife, 53 ; Lowe v. Cody, 29 Geo. 117. 5 Howman v. Corrie, 2 Vern. 190 ; Hart v. Stephens, 6 Q. B. 937 ; Stanwood V. Stanwood, 17 Mass. 57 ; Burr v. Sherwood, 8 Bradf. Sur. 85. 6 Arnold v. Ruggles, 1 R. I. 165 ; 2 Bright Hus. & Wife, 54 ; Slaymaker i;. Bank, 10 Penn. St. 373. ^ Dodgson V. Bell, 3 E. L. & Eq. 542. And see Matter of Reciprocity Bank, 22 N. Y. 9. [120] WIFE'S PERSONAL PROPERTY. * 118 action at all.^ Assuming them to be such, however, the indorsement and transfer of the husband is a sufficient reduc- tion into possession. Hence, if a note be made payable to the order of a feme sole, and she afterwards marries, her hus- band may transfer the note to himself or others by his own indorsement.^ The receipt of partial payment, it would seem, is only a reduction pro tanto.^ The wife cannot indorse over a note payable to her order, even with authority from her husband, where it does not appear that the indorsement was made for value received by the husband from the indorsee, or as a gift from the husband to the indorsee ; if she does so, it does not bar her rights by survivorship.* Her indorsement without his assent is prima facie bad.^ If a note be not negotiable, the husband alone can transfer it.^ A note made payable to order of "A. B. (a married woman), or to A. B. and her husband" in the alternative, constitutes the husband the payee.''' What evidence, irrespective of indorsement and transfer by the husband, suffices to show reduction into pos- session — as for instance where the note is payable to bearer — is not quite clear from the authorities. But reduction of the wife's notes into possession is not effected by the husband, merely because he keeps them for safety and at her request, with his own papers ; nor does the fact that her whole property * consisted of such notes, and that at her re- * 119 quest and because they were not due, he provided the wedding dress and furnished the house, give the husband a 1 See Scarpellini v. Acheson, 7 Q. B. 864 ; 9 Jur. 827 ; Gaters v. Maddeley, 6 M. & W. 423 ; McXeilage v. IToIloway, 1 B. & Aid. 218 ; Sherrington v. Yates, 12 M. & W. 855 ; 1 Pars. Bills & Notes, 87. If a note be payable to husband and wife, it would clearly su; vive to the latter. Richardson r. Daggett, 4 Vt. 336 ; Draper v. Jackson, 16 Mass. 480. See also post, as to gifts to husband and wife. 2 Mason v. Morgan, 2 Ad. & El. 30 ; Evans v. Secrest, 3 Ind. 545. And the wife's signature is mere surplusage where both indorse the note. lb. 3 Nash V. Nash, 2 Madd. 133. *" Scarpellini v. Acheson, 7 Q. B. 864. ^ Wall V. Tomlinson, 16 Ves. Jr. 413 ; Ilemmingway v. Matthews, 10 Tex. 207 ; Tryon v. Sutton, 13 Cal. 490. 8 Evans v. Secrest, 3 Ind. 545. "^ Wildman v. Wildman, 9 Ves. Jr. 174 ; Twisden v. Wise, 1 Vern. 161 ; Ry- land V. Smith, 1 M. & C. 53. [121] *119 HUSBAND AND WIFE. lien upon them, or amount to a reduction. ^ A collection of the wife's notes would be a reduction into possession ; and so perhaps would be transfer and delivery, with intent to pass the propert3^ Reduction into possession is not necessarily affected by delivery into the husband's hands of a cliose in action; for the intent of the parties at the time of delivery is open to ex- planation. Thus where the makers of a promissory note, payable to the wife, or bearer, and given as the proceeds of sale of her real estate, hand the note to the husband who immediately delivers it to the wife, in whose separate posses- sion it thereafter continues, no reduction takes place.^ But it would be otherwise, we apprehend, if the husband had placed the note among his own effects, never given it to his wife, nor admitted a trust on his part, and in all other respects acted as the owner of the property. An agreement to sell the fund is not a reduction into pos- session.^ Nor is a fund reduced by being set off against the husband's debt, no money having passed nor releases having been interchanged. At least this is the doctrine of some cases. Thus in Harrison v. Andreivs^ a testator gave a legacy to the wife ; the husband being indebted to the tes- tator in an equal amount, the husband and wife agreed to set off the debt against the legacy, and signed a legacy receipt for the amount ; but it was held that these acts constituted no reduction.* If the husband pledges his wife's cliose in action not already reduced to possession or assigns it as collateral security, it would appear that on the redemption of such pledge * 120 or security * the chose is placed in statu quo, and re- 1 Holmes v. Holmes, 28 Vt. 765. ' And see Lenderman v. Talley, 1 Houst. 523. A negotiable note given to a third party by a husband before marriage, is not extinguished by the mere fact of its purchase from such party by tlie wife by money belonging to her before marriage, not reduced to possession by the husband. Russ v. George, 45 N. H. 467. ^ Barber v. Slade, 30 Vt. 191 ; Hall v. Young, 37 N. H. 134 ; Barron v. Bar- ron, 24 Vt. 375. 3 Harwood v. Fisher, 1 Younge & Coll. Eq. Ex 110 ; 1 Bright Hus. & Wife, 52. * 13 Sim. 595. So Sir Wm. Grant, in Carr v. Taylor, 10 Ves. Jr. 574. See other cases cited in n. to 1 Bright Hus. & Wife, 52. [122 ] WIFE'S PERSONAL PROPERTY. * 120 mains the property of the wife until further reduction. ^ Whether the same can be said of a chattel mortgage is not certain.! The language of the instrument in deseril)ing the parties might aid in determining the question of intention whenever it arises. Certainly, whatever may be the technical difference between a pledge and a chattel mortgage, the latter operates a defeasible title only in the mortgagee. As to money secured by a mortgage to the wife, it is held that if the debt has been once paid to the husl)and reduction is com- pleted, even though he die before executing a reconveyance of the "property. Under such circumstances equity will ac- tually compel the wife to reconvey and perfect the title with- out allowing her any benefits from the property .^ Where real estate of the wife is sold, and notes are given, payable to her, the property changes its character and be- comes personal property in the shape of a chose in action.^ The husband may then reduce into possession as in other cases. And if the executor or other party making the sale pays the cash proceeds into the husband's hands, the money belongs to him absolutely, and his receipt extinguishes all claims of his wife.* So if the notes taken for the purchase- money are in the husband's own name the reduction is held complete.^ Money paid by a married woman upon a bond to convey land to her is prima facie her husband's, and may be recovered by him.^ * And proceeds of the sale * 121 of a widow's dower vest in her second husband." 1 Latourette v. Williams,! Barb. 9; Ilartnian v. Dowdel, 1 Kawle, 279. There is a dictum of Chancellor Kent (2 Kent Com. 137; also in Schuyler v. Hoyle, 5 Johns. Ch. 196) to tlie effect that the mortgage of a chose in action is of itself a sufficient reduction into possession. We find no autliorities to support this statement. But see Tritt v. Colwell, 31 Penn. St. 228, a recent case which recognizes a distinction in this respect between a pledge and a mortgage. 2 Hees r. Iveith, 11 Sim. 388; Bosoil v. Brandd-, 1 P. Wms. 458; Bates v. Dandy, 2 Atk. 208. 3 Taggart v. Boldin, 10 Md. 104; McCrory v. Foster, 1 Iowa, 271. See Pea- cock V. Pembroke, 4 Md. 280 ; Ramsdale v. Craighill, 9 Ohio, 199. * Johnson v. Bennett, 39 Barb. 237. 5 Dixon V. Dixon, 18 Oliio, 113; Talbot v. Dennis, 1 Carter, 471; McCrory V. Foster, 1 Iowa, 271. But if secured by mortgage, the mortgage also ought to be in the husband's name. •> Casey v. Wiggin, 8 Gray, 231. ^ Ellsworth V. Hinds, 5 Wis. 613 ; Bartlett v. Janeway, 4 Sandf Ch. 396 (N. Y. Stat.). But see Barber v. Slade, 30 Vt. 191. [123] * 121 HUSBAND AND WIFE. Legacies and distributive shares in like manner vest abso- lutely in the husband by reduction into possession ; but not before. And where a Avife is entitled to a portion of the assets of her first husband's estate, and then remarries, her second husband must reduce this portion into possession during cover- ture or it will survive to her.^ The institution of a suit to recover a legacy accruing to the wife is not sua vi a reduction when brought in the name of both parties.^ But payment to the husband or his attorney, after judgment, operates a reduc- tion.^ The husband may assign a legacy or distributive share like any other chose .^ Reduction of a legacy has been con- sidered complete where the husband takes a quitclaim deed from the testator's residuary devisee upon condition that he shall pay this and the other legacies.^ But some distinct act of ownership on the husband's part is necessary ; and it is doubtful whether his right is complete even after a decree of distribution ; the decree itself effecting no reduction. The share or legacy should be actually severed from the bulk of the estate whence it was derived.^ Any act on the husband's part which amounts to a complete act of ownership over his wife's chose in action — such act of ownership extending to the whole fund in question — is an effectual reduction into his own possession. The rule is, that if he recovers her debt by a suit in his own name, or if * 122 he releases * the debt, or novates the debt by taking a new security in his own and not in his wife's name ; in aU these cases, upon his death, the right of survivorship in 1 Harper v. Archer, 28 Miss. 212. See also Ex parte Norton, 35 E. L. & Eq. 609 ; Montefiore v. Belireno, L. R. 1 Eq. 171 ; Wiggins v. Blount, 83 Geo. 409. 2 Knight V. Branner, 14 Md. 1 ; Harris v. Taylor, 3 Sneed, 536 ; Hall v. McLain, 11 Humph. 425. 3 Alexander v. Crittenden, 4 Allen, 342. See post, p. 126. 1 B yan v. Spruill, 4 Jones Eq. 27 ; Weems v. AVeems, 19 Md. 334. 5 Howard v. Bryant, 9 Gray, 239. •i Short V. Moore, 10 Vt. 446 ; Probate Court v. Niles, 32 Vt. 775 ; Lewis v. Price, 3 Rich. Eq. 172. But see Walker v. Walker, 25 Mis. 367 ; Vanderveer v. Alston, 16 Ala. 494. A husband reducing his wife's legacy to possession and buying a land-claim, and afterwards the fee to the land in his own name, no trust results in her favor. Thomas v. Chicago, 55 111. 103. See Walker v. Walker, 41 Al . 353. As to whether the husband's note given for purchase at the administrator's sale can be set off against the wife's distributive share, see Robeits V. Adams, 2 S. C. n. s. 337. [12^] WIFE'S PERSONAL PROPERTY. * 122 the wife to the property ceases.^ But the property must come under the actual control of tlie husband, quasi husband, and not as trustee or attorney for the wife ; though a hus- band's appointment as trustee will not deprive him of the same right to reduce the trust fund to his own possession, which he would have were a third person the trustee.^ The cases show, in short, that there should always exist both the intent to appropriate to his own use and the act of appro- priation. Reduction into possession may be effected through the medium of a third person duly empowered to act for that purpose.^ And the receipt of the wife's distributive share by an agent appointed under a power of attorney executed by the wife to her husband is a sufficient reduction hj the hus- band, and enables the latter to sue the attorney for the pro- ceeds.* But where A. receives money for the use of a married woman, and writes to her that he holds the money at her dis- posal, this constitutes an attornment to the wife and not to the husband ; and the latter must do something more in order to make the fund his own.^ It is held in England that, where the husband was a lunaltic, payment into court of the wife's cliose in actioyi to the credit of the lunacy amounted to a reduction into possession.^ But in New Hampshire a singular doctrine is laid down ; namely, that the husband's right of reduction is so far personal to him, that it cannot be exercised by his guardian, if he be insane.^ The hr.sband's right to reduce his wife's choses in actioninto possession is one of election merely. He may therefore neglect 1 2 Kent Com. 137, 138. See Hanson v. Miller, 14 Sim. 22 ; 8 Jur. 209,352 ; Bumhani v. Bennett, 2 Coll. C. C. 254 ; Scott v. Hix, 2 Sneed, 192. 2 Wall V. Tomlinson, 16 Ves. 413 ; Dunn v. Sargent, 101 Mass. 336 ; Ryland V. Smith, 1 My. & Cr. 53 ; Burnham v. Bennett, 2 Coll. 254 ; Barron v. Barron, 24 Vt. 375; Savage v. Benham, 17 Ala. 119. But see Rees v. Keith, 11 Sim. 388. 3 Roll. Abr. 342, 350 ; 1 Bright Hus. & Wife, 53. * Turton v. Turton, 6 Md. 375; Alexander v. Crittenden, 4 Allen, 342. See Hill V. Hunt, 9 Gray, 66. s Fleet I'. Perrins, L. R. 3 Q. B. 536. 6 In re Jenkins, 5 Russ. 183. 1 Audover v. Merrimack County, 37 N. H. 437. [ 125 ] * 122 HUSBAND AND WIFE. or refuse to do so, and thus keep the property vested in his wife.^ This becomes a very important principle in determin- ing the rights of his creditors. For, supposing him to * 123 be embarrassed * in his affairs, can they attach the un- reduced choses in action of his wife as his propert}' ? It is settled that they cannot. But if he once makes the prop- erty his OAAai they can reach it ; and he cannot transfer it again to his wife in prejudice of their pre-existing rights, even though it vested in him but for a brief time. And of course his own expressions of regret cannot avail against the hus- band's actual appropriation of his wife's choses in action..^ This brings us to a very perplexing branch of the present subject ; namely, that of the husband's reduction into posses- sion by assignment. Choses in possession are capable of assignment. Choses in action, however, with the exception of negotiable instruments, such as bills of exchange, checks, and promissory notes (to which we may doubtless add coupon bonds ^), cannot be assigned at law ; but in equity they may.* The assignment, however, to be effectual, should be without reservation. And the husband's agreement to assign is like- wis'e sustainable in equity, on the principle that what one agrees to do shall be considered as done.^ But whether the assignment of itself will bar the rights of the wife by survivor- ship and constitute reduction into possession, is quite another thing. If the assignment of the wife's choses in action be purely voluntary and without consideration, it does not bind the wife.^ As, for instance, where a husband, pending divorce proceedings against him, makes a pretended transfer for the 1 Coffin V. Morrill, 2 Fost. 352 ; Harris v. Taylor, 3 Sneed, 536 ; Gallego v. Gallego, 2 Brock. 287 ; Mellingen v. Bansmann, 45 Penn. St. 522 ; Stoner v. Commonwealtli, 16 Penn. St. 387 ; Snowden v. Lindslej', 6 Cold. 122. See Pea- cock V. Pembroke, 4 Md. 280. 2 Nolen's Appeal, 23 Penn. St. 37. 3 See Thomson v. Lee County, 3 Wall. 327. * Crouch i;. Martin, 2 Vern. 5'J5 ; Honner v. Morton, 3 Russ. 65. 5 Druce v. Dennison, 6 Yes. 394 ; Steed v. Cragh, 9 Mod. 43. 6 Wright V. Rutter, per Lord Alvanley, 2 Ves. Jr. 673; Burnett r. Kinnaston, 2 Vern. 401; Sir Wra. Grant, in Mitford v. Mitford, 9 Ves. 87 ; Sir Tliomas Plu- mer, in Jolmson v. Johnson, 1 Jac. & Walk. 472 ; Jewson v. Moulson, 2 Atk. 417 ; 2 Kent Com. 137 ; Hartman v. Dowdel, 1 Rawle, 279. [ 126 J WIFE'S PERSONAL PROPERTY. * 123 purpose of barring her rights to the property. Nor does a voluntary assignment for the benefit of creditors carry them.i A general assignment in bankruptcy or insolvency passes at law the wife's * property, and by way of * 12-4 partial recompense, as it would appear, the husband's discharge has been allowed to operate upon the wife's debts dum sola as well as his own. But in equity the assignees are permitted to take the same interest in the wife's dioses in action as the husband possessed, and no more ; and unless they reduce them into possession during her husband's life- time she will be entitled to them by survivorship. ^ Indeed, in Pennsylvania a voluntary assignment of the husband to trustees for wife and child, so as to defeat his creditors, has been upheld by a court of equity against such creditors on the ground that it was for the benefit of his wife and child.3 But the equity rule as to assignments of the wife's clioses in action to individuals for valuable consideration is very capri- cious. It was formerly maintained that the husband's assign- ment of his wife's chose in action for a valuable consideration would l)ar not only a present interest of the wife, but also a contingent interest, or the possibility of a term or a specific possibility.* Sir William Grant threw doubt upon this doc- trine by the objection that this would give the assignee a greater right than the husband himself.^ It remained for Sir Thomas Plumer to break it down completely, and to place all assignments upon the same footing. This he attempted in the celebrated case of Purdetv v. Jackson,^ where the question 1 Cases supra ; Wright v. Rutter, 2 Ves. Jr. 673 ; 1 Bright Hus. & Wife, 81. 2 Sherrington v. Yates, 12 M. & W. 855; Miles v. Williams, 1 P. Wms. 249; Mitford V. Mitford, 9 Ves. 87 ; 2 Kent Com. 138 ; Van Epps v. Van Deusen, 4 Paige, 04 ; Outcalt v. Van Winkle, 1 Green Ch. 616 ; Moore v. Moore, 14 B. Monr. 25U ; 1 Bright Hus. & Wife, 79, 83, and cases cited ; Hay v. Bowen, 6 Beav. 610 ; Poor v. Hazleton, 16 N. H. 664 ; Mann v. Higgins, 7 Gill, 265. 8 Siter V. Jordan, 4 Rawle, 468. See also Andrews v. Jones, 10 Ala. 400. See cotiira, Dold v. Geiger, 2 Gratt. 98. < See Chandos i'. Talbot, 2 P. Wms. 601 ; Bates r. Dandy, 2 Atk. 207 ; Haw- kins V. Obin, ib. 549 ; n. to 2 Kent Com. 138. 6 Mitford V. Mitford, 9 Ves. 87. And see Ilornsby v. Lee, 2 Madd. Cli. 16. 6 1 Kuss. 1-71 (1823). Ill Ashby i-. Ashby, 1 Coll. 653, this rule was fully approved. See too Ellison v. Elwin, 13 Sim. 309. [127] * 124 HUSBAND AND WIFE. arose as to the effect of an assignment by husband and wife of her vested interest in remainder. In an elaborate * 125 opinion he maintained * that whatever the nature of the assignment, whether in bankruptcy, to trustees for payment of debts, or to a specific purchaser for value, it could pass the husband's interest and no more ; that the assignee must afterwards reduce the property to possession during the husband's lifetime ; and that no assignment was possible of the wife's reversionary interest, so as to bar her as survivor, provided the interest continued reversionary. After- wards Lord Lyndhurst, while approving this doctrine to the extent of the actual decision, suggested a distinction between the cases where the husband can completely appropriate, at the time of the assignment, and those where he cannot ; and thought that the assignment might stand in the former in- stance as an agreement to appropriate or a sort of equitable reduction into possession.^ The later English cases seem to follow this suggestion.2 So that the present doctrine in Eng- land is understood to be that the husband's assignment for value to a specific purchaser will bar the wife's survivorship, provided the husband has during coverture the right of reduc- ing into liis own possession ; but that he cannot assign, so as to bar the wife's survivorship, unless such reduction becomes possible before his death. ^ In this country the rule is far from uniform. The Penn- sylvania courts, repudiating this modern chancery doctrine altogether, maintain that the assignment to a specific pur- chaser for value bars the wife's right of survivorship.^ For, it is said, the husband by marriage gains a full power of dis- posal over his wife's property, and any distinction between vested and contingent interests in respect to the marital do- minion and power of transfer is unsound.^ This doctrine 1 Honner v. Morton, 3 Russ. G5. 2 Per Lord Brougliam, Stanton v. Hall, 2 Russ. &, My. 175 ; Elliott v. Cordell, 5 Madd. Ch. 149. 3 Tidd V. Lister, 17 E. L. & Eq. 567 ; 8. c. on appeal, 3 De G., M. & G. 857. 1 Shuman v. Reigart, 7 W. & S. 169 ; Siter's Case, 4 Rawle, 468 ; Webb's Appeal, 21 Penn. St. 248 ; Smilie's Estate, 22 Penn. St. 130. 5 See Siter's Case, ib., per Gibson, C. J. [128] WIFE'S PERSONAL PROPERTY. * 125 has received approval *in some other States.^ But * 126 the doctrine of Purdew v. Jackson has been more fre- quently approved by our courts ; probably, if the question should now arise again, with the qualifications which Lord Lyndhurst introduced.^ There seems to be no reason for a distinction between re- leases and assignments from the husband, so far as the effect upon the wife's survivorship is concerned. But in one case it was observed that the husband's release might amount to reduction as against the wife.^ A later decision, however, puts releases and assignments on the same footing.'* And in this country no distinction is made between the two modes of transfer.^ The wife's outstanding choses may be recovered by a suit so as to prevent them from going back to her in case she be the survivor. The general rule is that for property accruing to the wife before marriage, the wife must be joined in the suit, although the husband during coverture may alter the debtor's liability, as by changing the security, or giving time on a promise to himself, and may then sue alone ; ^ in which case, perhaps, the reduction into possession is effected by the alteration of the debt and not by the suit. Where, however, property accrues to the wife after marriage, the hus- band may elect either * to sue alone or to join his wife * 127 as the meritorious cause." Such being the state of the 1 Manion v. Titsworth, 18 B. Monr. 582 ; Turtle v. Fowler, '12 Conn. 58 ; Hill V. Townsend, 24 Tex. 675. ^ Bugg V. Franklin, 4 Sneed, 129 ; George v. Goldsby, 23 Ala. 32G ; Arring- ton V. Yarborough, 1 Jones Eq. 72; Lynn v. Bradley, 1 Met. (Ky.) 282; Smith V. Atwood, 14 Geo. 402 ; State v. Robertson, 5 Harring. 201 ; Needles v Needles, 7 Ohio St. 432 ; Bryan v. Spruill, 4 Jones Eq. 27. The husband's assignee may avail himself of fraud upon the husband's marital rights. Joyner v. Denny, Busbee Eq. 176. In Stiffe v. Everitt, 1 M. & C. 37, Lord Cottenham suggests what may be at tlie foundation of the present distinction in the English equity rule as to assignees for value, namely, that neither the husband alone, nor the husband and wife together, can dispose of the wife's life-interest in a fund, beyond the duration of the coverture. See Macq. Hus. & Wife, 58, 59. » Hore V. Becher, 12 Sim. 465, 6 Jur. 94, Shadwell, V. C. * Rogers v. Acaster, 11 E. L. & Eq. 300 ; 14 Beav. 445. s Needles v. Needles, 7 Ohio St. 432 ; Kenny v. Udall, 5 Johns. Ch. 464. 6 Yard v. Ellard, 1 Salk. 117, pi. 8 ; Carth. 463 ; Sid. 299. See Bright Hus. & Wife, 61-06 ; Chitty PI. 32-38, 7th ed. 9 [ 129 ] * 127 HUSBAND AXD WIFE. law, there is a distinction between suits brought in the hus- band's name alone, and suits in the name of both husband and wife. In the former case he elects to disaffirm his wife's title, and bringing the suit operates as a reduction.^ In the latter he admits her possible title by survivorship, and the reduction is ineffectual until the debt is collected on execu- tion or otherwise ; ^ for even a recover}^ of judgment is insuf- ficient.^ In chancery proceedings both husband and wife are made parties ; and as we shall presently see, equity compels a set- tlement upon the wife before entering a decree in the hus- band's favor. It is said that decrees in chancery so far resemble judgments at law that until the money be ordered to be paid, or declared to belong to the husband, the wife's rights will remain undisturbed. But an order for payment of money to the husband, vests it in him free from the wife's right by survivorship.^ As to the submission to arbitration it is said that the origi- nal claim is extinguished by the award and a new duty thereby created.^ If the money awarded be to the husband, and he die before payment, it will go to his personal representatives, and not his wife.^ So much has been decided. Some are of the impression that in other respects the wife's interest will dejDend upon the stage of proceedings reached at the * 128 time of the husband's * death, and that neither the submission to arbitration, nor the award itself, unless 1 Oglander v. Baston, 1 Vern. 396 ; 2 Ves. Sen. 677 ; 12 Mod. 346. See Pierson r. Smith, 9 Ohio St. 554. 2 Bond V. Simmons, 3 Atk. 21 ; supra, p. 121. The exception formerlj made in favor of bills of exchange and promissory notes does not now exist. See cases supra, p. 118. The husband must therefore follow the above rules of suit. Sherrington v. Yates, 12 M. & W. 855 ; 1 Dowl. & L. 1032. And see Pike v. Col- lins, 33 Me. 43 ; Mason v. McNeill, 23 Ala. 201 ; PettingiU v. Butterfield, 45 N. H. 195. 8 Crittenden t'. Alexander, 16 Gray, 432. * See Nanney v. Martin, Eq. Cas. Abr. 68; 8 Atk. 726 ; Macaulay v. Phillips, 4 Ves. 19 ; Hey gate v. Annesley, 3 Bro. C. C. 362 ; 1 Bright Hus. & Wife, 67-69 ; Lowery i'. Craig, 30 Miss. 19. s Reeve Dom. Kel. 21. But see Hunter v. Rice, 15 East, 100; Thorpe y. Eyre, 1 Ad. & El. 926 ; 3 Nev. & M. 214. •> Oglander v. Baston, 1 Vern. 396. [130] WIFE'S PEKSONAL PEOPERTY. * 128 in the husband's favor, operates as a reduction into posses- sion The result of the foregoing observations is that reduction into possession offers many very nice distinctions, involving conflicting rights of considerable magnitude. Courts of equity, which have taken this subject under their especial control, seem to lay down variable rules ; and it must be con- fessed that the law of reduction is so built uj)on exceptions, that one may more readily determine what acts of the hus- band do not, than what acts do, bar the wife's survivorship. Another difficulty in dealing with this subject appears from the circumstance that personal property is rapidly growing, and species of the incorporeal sort are developed quite un- known to the old common law, while, on the other hand, the doctrine of the wife's separate estate has expanded so fast as to furnish already new elements of consideration for most of the latest reduction cases, threatening to extinguish at no distant day all the old learning on the subject even before its leading principles could be clearly shaped out in the courts. The wife's equity to a settlement, which constitutes an important branch of the English chancery jurisprudence, is closely connected with the husband's right of reduction into possession. Whenever the husband or his representative has to seek the aid of a court of chancery in order to recover his wife's property, he must submit to its order of a suitable set- tlement from the fund. This settlement, which is made upon the wife for the separate benefit of herself and the children as a provision for their maintenance and comfort, is known as the wife's equity.^ Thus chancery, by a stretch of power somewhat arbitrary, interferes to do an act of justice. The doctrine seems to rest upon two grounds : first, that whoever 1 See 1 Bright Hus. & Wife, 70 ; Macq. Hus. & Wife, 62. The wife will not be bound by her agreement pending suit. Macaulay v. Phillips, 4 Ves. 15. But why should not the husband be allowed todisafhrm his wife's title by submitting the chose to arbitration as his own as well as in suing alone ^ ^ 2 Kent Com. 13ii-143, and cases cited ; 1 Bright Hus. & Wife, 230-265 ; 2 Story Eq. Juris. 635. [ 131 ] * 128 HUSBAND AND WIFE. comes into equity must do equity ; second, that chancery is the special champion of women and children.^ The rule is the same whether the thing to be reduced into possession be a debt, legacy, or distributive share be- * 129 longing * to the wife, or any other eJiose in acticm? Chancery will also restrain the husband by injunction from proceeding to recover a fund in the ecclesiastical or probate courts, until a like provision is made ; for the reason that it has a concuri-ent or appellate jurisdiction in the settle- ment of estates.^ In this country a court of equity has some- times gone so far as to lay hold of property for which recovery is sought in the courts of common law.'* But the English cases do not warrant such an exercise of power.^ The blend- ing of equity and common-law functions in American tribunals might here justify a departure from the j)arent system. But the wife's equity does not attach to her property while in the hands of third persons. They may, if they choose, defeat it by placing the fund directly in the husband's hands without the intervention of a suit. Thus where an executor pays over a legacy accruing to the wife, taldng a proper receipt from the husband, a court of equity will not call it back from 1 Meals V. Meals. 1 Dick. 373 ; Peachey Mar. Settl. 158, 159. This juris- diction appears to have been exercised from the earliest period. Sturgis v. Chaiupneys, 5 M. & C. 103, per Lord Chancellor Cotrenham. 2 Kenney v. Udali, 5 Johns. Ch. 464 ; 8 Cow. 590 ; Durr ?;. Bowyer, 2 McCord, Ch. 368 ; Diivall v. Farmers' Bank of Maryland, 4 Gill & Johns. 282 ; Abernetliy V. Abernethy, 8 Fla. 243; Haviland v. Bloom, 6 Jones Ch. 178 ; Smith v. Kane, 2 Paige, 303. But see Tobin r. Di.xon, 2 INIet. (Ky.) 422; Ex parte Gedder, 4 Rich. Eq. SOI. 3 Jewson V. Moulson, 2 Atk. 419 ; Dumond v. Magee, 4 Johns. Ch. 318. 4 Van Epps v. Van Deusen, 4 Paige, 64; note to 2 Kent Com. 140; 2 Kent Com. 141, 142; Corley v. Corley, 22 Geo. 178; Dearin r. Fitzpatrick, Meigs, 551. But see Matter of Miller, 1 Ashm. 823 ; Parsons v. Parsons, 9 N. H. 309-336 ; Allen V. Allen, 6 Ired. Eq. 293 ; Barron v. Barron, 24 Vt. 375, 391 ; Wiles v. Wiles, 3 Md. 1. 5 1 Roper Hus. & Wife, 203 ; Jacob's notes to 1 Roper Hus. & Wife, 257, 558; Oswell V. Probert, 2 Ves. Jr. 682 ; Sturgis o. Champneys, 5 M. & C. 105 ; Jewson V. Moulson, 2 Atk. 419. And see Jackson v. Hill, 25 Ark. 223. According to the latest English decisions tiie wife's equity does not extend to a reversionary in- terest. No settlement can be asked until the fund falls into possession ; i.e., until the husband has a ri^ht to receive it. Osborn v. Morgan, 8 E. L. & Eq. 192. [ 132 ] ^ WIFE'S PERSONAL PROPERTY. * 129 the husband, to enal)le* a settlement to be enforced ; ^ but it is otherwise if the executor pays the legacy over after pro- ceedings are commenced. For as soon as the bill is filed, the court becomes the trustee of the fund.^ * As to assignees and legal representatives of the * 130 husband the rule is the same. Their application to the court is treated as the husband's would have been ; es- pecially if the assignment in question has not effected a com- plete reduction so as to bar tlie wife's survivorship : a topic which has already been sufficiently discussed. ^ The court disregards the party who asks equity, and fastens the obliga- tion upon the property itself.^ But the wife's right of equity to a settlement is something distinct from her right of survivorship ; that is, her right upon her husband's death to property not reduced by him.^ And even if the husband has assigned the fund the court will protect such equity upon due application.^ The husband's assignee for valuable consideration takes subject to the wife's equity, although her survivorship may have been barred by the assignment.'^ But the wife's antenuptial debts must first be provided for.^ A distinction seems to have been made, however, in the English chancery courts, between cases in which the wife takes an al)solute interest, and those in which she takes a life- » Glaister r. Hewer, 8 Ves. 205; Murray v. Elibank, 10 Ves. 90; Bell Hus. & Wife, 115; Pool v. Morris, 29 Geo. 374. '■^ Murray v. Elibank, 10 Ves. 90 ; Delaganle v. Lenipriere, 6 Beav. 347 ; Wiles V. Wiles, 3 Md. 1 ; Crook v. Turpin, 10 B. Monr. 243. But see Dearin v. Fitzpatrick, Meigs, 551. * Oswell V. Probert, 2 Ves. Jr. 679 ; Jacobson v. Williams, 1 P. Wms. 382 ; Jewson V. Moulson, 2 xVtk. 417 ; Earl of Salisbury (;. Newton, 1 Eden, 370 ; Bos- vil V. Brander, 1 P. Wms. 458 ; Kenney v. Udall, 5 Johns. Cii. 464 ; 2 Bright Hus. & Wife, 286. See discussion of Purdew y. Jackson, and other cases supra ; Carter v. Carter, 4 S. & M. 59. * Aguilar v. Aguilar, 5 Mad. 414 ; Osborne v. Edwards, 3 Stockt. 73. See 2 Story Eq. Juris. § 1414; Wiles v. Wiles, 3 xMd. 1 ; Guild v. Guild, 16 Ala. 121. 5 Norris v. Lantz, 18 Md. 2G0; Hall v. Hall, 4 :Md. Cii. 283. 6 Osl)orne i-. Edwards, 3 Stockt. 73. ■J Moore v. Moore, U B. Monr. 259; 2 Story Eq. Juris. § 1412, and cases cited. 8 Barnard v. Ford, L. K. 4 Ch. 247. [133] * 180 HUSBAND AND WIFE. interest only. In cases where the wife takes an absolute interest the provision is for her and her children. But where her interest is only for life the provision is for her separate benefit alone ; and it is impossible in such cases to make any provision for children ; the question consequently is one be- tween the husband and wife simply. So, too, where * 131 the wife's interest is absolute, her right * to a provision for herself and children is independent of the conduct of her husband ; but where she takes a mere life -interest, her right arises from the non-fulfilment of his obhgations. Finally, where the wife has an absolute interest the purchaser takes subject to a settled equity ; but where the wife takes for life only such equity may not exist.^ The wife's equity to a settlement does not extend to a re- versionary interest. The settlement of such a fund cannot be asked for until it falls into possession ; that is, until the hus- band has a right, subject to the wife s equity, to receive it.^ But as to all vested interests, whether acquired by gift, devise, or inheritance, before or during coverture, the rule of equity is that the property is subject to the settlement of a suitable provision for her support, unless expressly waived by her, or forfeited through her misconduct ; and this settlement will be protected equally against the husband, his creditors or his assignees, with or without value, so far as chancery can prop- erly exercise jurisdiction in the premises.^ Where part of a reversionary fund falls into possession, the wife's equity may be settled upon her from such part, with liberty to apply upon the remaining portion of the fund falling into possession.* An equity may be allowed the wife out of land in controversy purchased by an insolvent husband with her personalty not reduced to possession by him, where a creditor seeks to com- pel a conveyance to himself of the land.^ Where the interest claimed by the husband in right of his 1 Tidd V. Lister, on Appeal, 3 De G., M. & G. 857 ; s. c. 10 Hare, 152 ; Peachey Mar. Settl. 162-164 ; cases of Stanton v. Hall, 2 Euss. & M. 175, and other cases, commented upon in Tidd v. Lister, ib. See as to life-estate, post, p. 157. -' Osborn v. Morgan, 8 E. L. & Eq. 192 ; 9 Hare, 432. •I Barron v. Barron, 24 Vt. 375. 4 Marshall v. Fowler, 15 E. L. & Eq. 430. 5 Sims V. Spalding, 2 Duv. 121. [134] WIFE'S PERSONAL PROPERTY. *131 wife is merely equitable, or where, thougli in its nature legal, it becomes from collateral circumstances tlie subject of a suit in equity, the wife has a right to a provision out of the fund. As where for example it is vested in trustees who have the legal estate, the wife, or rather the husband in her right, having only the equitable or beneficial interest.^ But the smallness of a fund is no bar to a settlement.^ * Equity courts will generally preserve the wife's * 132 portion from the capital of the fund which is made the subject of equity proceedings, and the husband will be allowed to appropriate the income of the fund without hin- drance.^ But a liberal discretion is exercised by the court, according to the circumstances ; even, it may be, to the dis- advantage of the husband's creditors ; ^ and where the hus- band received a large fortune through his wife, and has squandered nearly the whole of it, the remaining fund may be placed where it will accumulate for her benefit or the income may be paid for her support. So if he maltreats her or otherwise conducts himself shamefully. And if he be- comes insolvent the wife may have a reasonable provision secured to her out of her life-estate.^ There is no definite rule fixed as to the proportion which the wife should receive for her equity. The amount is regu- lated at discretion and will depend upon a variety of circum- stances, such as the husband's income from other sources, the funds he may have already received through his wife, the extent of former settlements, and the marital conduct of both parties.^ Where the husband is shown to be cruel, dissolute, 1 Macq. Hus. & Wife, 69 ; Ex parte Blagden, 2 Rose, 251 ; Oswell i'. Probert, 2 Ves. Jr. 680 ; Sturgis v. Cliampneys, 5 M. & C. 103. ^ In re Kincaid's Trusts, 17 E. L. & Eq. 396. A strong instance of tlie liber- ality of the court of equity is afforded in Scott v. Spasliett, 16 Jur. 157 ; 9 E. L. & Eq. 265. 3 Bond I'. Simmonds, 3 Atk. 20 ; Elliott v. Cordell, 5 Madd. 156 ; Vaughan v. Buck, 13 Sim. 404. * Montefiore i'. Behrens, L. R. 1 Eq. 171. 5 Bond V. Simmonds, 3 Atk. 20. As to insolvency where husband has not taken benefit of bankrupt acts, see Ex parte Cosegayne, 1 Atk. 192 ; Pryor v. Hill, 4 Bro. C. C. 142 , Oswell v. Probert, 2 Ves. 682 ; Bell Hus. & Wife, 121. 6 2 Bright Hus. & Wife, 240, 241, and cases cited ; Freeman v. Fairlee, 11 Jur. 447 ; Gardner v. Marshall, 14 Sim. 575 ; Green v. Otte, per Sir J. Leach, 1 [135] * 132 HUSBAND AND WIFE. or improvident, or where he has abandoned his family and neglected to provide for their support, a court of chancery will not hesitate to set apart at least the greater part of the fund for the benefit of the wife and children. i So if he be insolvent, the wife is favored to the exclusion, if necessary, of his creditors. In one case it was observed by Alderson, B., that the wife and children ought to have the whole fund * 133 as against the husband's assignee in insolvency, * and he said that if he was bound by the practice of the court to take out any part of it, he would take out one shilliug.2 But though the wife's equity to a settlement is recognized as due herself and her children, the right is so far personal to herself that it cannot be exercised by any one else, and it expires if she die pending proceedings, though there may be children surviving her.^ The husband in such case takes the proceeds as in other cases. In fact, the latest cases show a clear disposition on the part of the court to leave a dutiful husband's interest in any such fund unimpaired, except so far as may be necessary to provide for the wife and for all chil- dren she may possibly have ; for which reason a fund will be S. & S. 254 ; Farrar v. Bessey, 24 Vt. 89 ; Bagshaw v. Winter, 11 E. L. & Eq. 272; Cutler's Trust, 6 E. L. & Eq. 97 ; McVey v. Boggs, 3 Md. Ch. 94 ; Beeman r. Cowser, 22 Ark. 429. 1 Coster V. Coster, 9 Sim. 597. 2 Brett V. Greenwell, 3 Y. & C. Eq. Ex. 230. But see Pugh, Ex parte, 12 E. L. & Eq. 350. Most frequently one-half has been allowed the wife as her equity under ordinary circumstances. 2 Bright IIus. & Wife, 241, and cases cited ; Peachey Mar. Settl. 176, 177. Where the wife had been allowed a divorce for adultery, the whole fund was settled upon her, the court justly observing that if adultery of the wife barred her from receiving, adultery of the husband ought to bar him equally. Burrows v. Burrows, 12 E. L. & Eq. 268. See In re Sug- gitt's Trusts, L. R. 3 Ch. 215. In Spirett v. Willows, L. R. 1 Ch. 520, L. R. 4 Ch. 407, three-fourths of the fund were settled on wife and children, the hus- band being a bankrupt. See form of settlement there prescribed. 3 Delagarde v. Lempriere, 6 Beav. 344, per Lord Langdale ; Baldwin v. Bald- win, 5 De G. & S. 319 ; contra, Steinmetz v. Halthin, 1 G. & J. 67. See Peachey Mar. Settl. 166, 167. But not, according to the English equity practice, if she die, after a certain advanced stage of the proceedings. See Rowe v. Jackson, 2 Dick. 604 ; Murray v. Elibanks, 10 Ves. 92 ; Lloyd v. Mason, 5 Hare, 149 ; Bell Hus. & Wife, 128, 129 ; Peachey Mar. Settl. 168, and cases cited ; Baldwin V. Baldwin, 15 E. L. & Eq. 158. In Hobgood i-. Martin, 31 Geo. 62, the children were allowed to file a supplemental bill after the wife's death. [136] WIFE'S PERSONAL PROPERTY. * 133 limited, after the death of the husband and in default of children of the wife, to the husband, whether he survives her or not.^ The wife's adultery is a complete bar to the equity ; and other misconduct would certainly reduce the amount if not extinguish the equity altogether.^ But it does not follow that in case of the wife's adultery the fund would be decreed absolutely and at once to the husband ; the court might wait until the anomalous relationship of the parties had been legally determined by divorce.^ The husband may become the purchaser of his wife's fortune where he has made a competent settlement upon her before marriage. Regarding him in this light, chancery will in such a case not only refuse to allow the wife a settlement from the fund in litigation, but will let in his representatives after his * death to make the reduction complete.* * 134 Lord Eldon said, however, that in order to bar the wife's equity the articles of marriage settlement should ex- pressly state that it was in consideration of the wife's fortune or else the contents must import it as clearly as if expressed.^ A jointure is not an adequate settlement, for this is merely a bar of her possible dower. But any adequate settlement, eo nomine, seems to be an effectual bar to the wife's equity. A covenant to settle must be performed by the husband before he can be regarded as a purchaser.^ And the cases admit that a marriage settlement is not presumed to cover property accruing during coverture, but is to be confined to such as belongs to the wife at the time of settlement, unless apt 1 Walsh V. Wason, L. R. 8 Ch. 482 ; In re Suggitt's Trusts, L. R. 3 Cli. 215 ; Croxton v. May, L. R. 9 Eq. 404. - Ball V. Montgomery, 2 Ves. 191 ; Carr v. Eastabrooke, 4 Ves. 146 ; Peachey Mar. Settl. 174-176 ; Carter v. Carter, 14 S. & M. 59 ; Fry i-. Fry, 7 Paige, 4()2. 3 Barrow v. Barrow, 18 Beav. 529. Tliis rule lias been modified in extreme cases, however, so as to grant equity, even after adultery. In re Lewin's Trusts, 20 Beav. 378 ; Greedy v. Lavender, 13 Beav. 64 ; Ball v. Coults, 1 Ves. & B. 302. * 2 Kent Com. 143 ; Cleland v. Cleland, Prec. in Ch. 63 ; Poindexter v. Jef- fries, 15 Gratt. 363. 5 Druce v. Dennison, 6 Ves. 395. See Salway v. Salway, Amb. 692; Carr V. Taylor, 10 Ves. 574 ; Doe v. Ford, 2 El. & B. 970. « Bell Hiis. & Wife, 413, and cases cited ; Holt v. Holt, 2 P. Wms. 647 ; Pyke V. Pyke, 1 Ves. Sen. 376. [ 137 ] #134 HUSBAND AND WIFE. words are used to indicate a different intent of the parties thereto. 1 The wife ma}^ waive her equity to a settlement ; for, unlike her right of survivorship, it is the mere creature of equity. But her consent must be formally taken under the direction of the court, and apart from her husband.^ The court will not receive the wife's consent until her share is ascertained,^ and an order made with the wife's consent may afterwards be set aside if prejudicial to her interests.* A married woman may also be precluded by her own fraud from claiming her equity against purchasers. Thus where a married woman wrote out an assignment of her reversionary interest in a trust fund, dating it before marriage and signing it in her maiden name, in order to enable her husband to bor- row money upon it : and afterwards gave to the pur- * 135 chasers a letter * to one of the trustees of the fund, stating that she had before her marriage assigned her interest in the same to her husband ; it was held, notwith- standing some evidence of coercion in the first instance, that she was debarred from claiming a settlement.^ And the wife's stinginess in dealing with her separate estate, the absence of misconduct on the husband's part, and the fact that she has ample means of her own, irrespective of any allowance which might be made from the new fund, are also circumstances which may debar her from receiving an equity therein where she and her husband are living separate.^ Property held by the wife in a representative capacity at the time of marriage cannot vest in the husband ; for here she has no beneficial interest which the law can transfer to her 1 Note to 2 Kent Com. 143. See chapter on Marriage Settlements, post. 2 1 Dan. Ch. Pract. 95 ; Set. on Decrees, 255, 256 ; Macq. Hus. & Wife, 75 ; Coppedge v. Tlireadgill, 3 Sneed, 577 ; Ward v. Amory, 1 Curt. C. C. 419. See Campbell v. French, 2 Ves. 321 ; May ;;. Roper, 4 Sim. 360. The consent of an infant will not be taken. Abraham v. Newcome, 12 Sim. 566; Phillips v. Hassell, 10 Humph. 197. 3 Jernegan v. Baxter, 6 Madd. 82 ; Peachey Mar. Settl. 181. * Watson V. Marshall, 19 E. L. & Eq. 569 ; 17 Jur. 651. 5 In re Lush's Trusts, L. R. 4 Ch. 591. And see Sharpe v. Foy, L. R. 4 Ch. 35. 6 Giacometti v. Prodgers, L. R. 14 Eq. 253; L. R. 8 Ch. 338. [138] WIFE'S PERSONAL PROPERTY. * 135 husband.i ^^y other rule would operate a fraud upon credit- ors and cestvis que trust. But if the wife be executrix or administratrix at the time of her marriage, the husband is entitled to administer in her right, by wa}^ of partial offset to his liability for her frauds and injuries in such capacity. As incidental to this authority, he may release and compound debts, and dispose of the effects, and reduce outstanding trust property into possession, as his wife might have done before coverture.^ He is accountable for all property which came to her possession, whether actually received by him or not.3 A married woman cannot become executrix or adminis- tratrix without her husband's concurrence ; so long, at least, as he remains liable for her acts ; * nor will payments made to her in such capacity without his assent be valid.^ It is to be generally observed in cases of this kind that the right of dis- position which the husband exercises is strictly the right of performing the trust vested in his wife, it being assumed that she cannot perform it consistently with her situation as a feme cove7't. An administrator cannot sue in his representative character * upon contracts made after the death of the * 136 intestate merely in the course of carrying on the intes- tate's business. Hence the husband must sue alone, for goods supplied by husband and wife, in carrying on the business of the wife's father, whose administratrix the wife was ; and the joinder of the wife is improper.^ 1 Co. Litt. 351 ; 11 Mod. 178 ; 1 Bright Hus. & Wife, 39, 40. 2 lb. ; Jenk. Rep. 79 ; Woodruffe v. Cox, 2 Bradf. Sur. 153 ; Keister v. Howe, 3 Ind. 268 ; Claussen v. La Franz, 1 Iowa, 226. 8 Scott V. Gamble, 1 Stockt. 218. For a case in which the husband put money of his own into a bank where the wife had an account as executrix, see Lloyci V. Pughe, L. R. 8 Ch. 88. 4 Administration lias been granted to a wife living apart from her husband under a deed of separation with apt provisions. Goods of Hardinge, 2 Curt. 640. 5 1 Salk. 282 ; Lover v. Lover, 6 Jur. 156 ; Bubbers v. Hardy, 3 Curt. 50 ; cases cited in 2 Redf. Wills, 78. As to the indorsement of a note payable to the wife as administratrix, see Roberts v. Place, 18 N. H. 183. And see Murphree V. Singleton, 37 Ala. 412. Statutes sometimes require the husband to join in the wife's bond as executrix. See Airhart v. Murphy, 32 Tex. 131 ; Cassedy v. Jackson, 45 Miss. 397. Wife made sole executrix with her husband's consent. Stewart, In re, 56 Me. 300. 6 Bolingbroke v. Kerr, L. R. 1 Ex. 222. [139] * 136 HUSBAND AND WIFE. By marriage with, a female guardian, too, the husband be- comes responsible for the moneys with which she may then or afterwards during coverture be chargeable in such capac- ity ; the responsibility extending while she continues to act, whether it were proper for her to so continue or not.i 1 Allen V. McCuUough, 2 Heisk. 174. A married woman cannot bind herself by her contract to convey estate which is devised to her m trust for sale. Avery V. Griffin, L. R. 6 Eq. 606. [ 140 ] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 137 * CHAPTER VI. *137 THE EFFECT OF COVERTURE UPON THE WIFE's CHATTELS REAL AND REAL ESTATE. Chattels real, such as leases and terms for years, have many of the incidents of personal property. But as between husband and wife they differ from personal chattels. The title acquired therein by the husband is of a somewhat anoma- lous nature ; for upon them marriage operates an executory gift, as it were, the husband's title being imperfect unless he does some act to appropriate them before the wife's death. He may sell, assign, mortgage, or otherwise dispose of his wife's chattels real without her consent or concurrence ; ^ excepting always such property as she may hold by way of settlement or otherwise as her separate estate.^ Chattels real, unappropriated during coverture, vest in the wife absolutely, if she be the survivor. In all these respects they resemble choses in action. But if the husband be the survivor, such chattels will belong to him jure mariti, and not as represent- ing his wife. And in this respect they resemble choses in possession. As to the wife's chattels real, therefore, husband and wife are in possession during coverture by a kind of joint tenancy, with the right of survivorship each to the other ; not, how- ever, like joint-tenants in general, but rather under the title of husband and wife ; since husband and wife are, in contemplation * of law, but one person and incapable * 138 of holding either as joint-tenants or tenants in com- mon.^ 1 Co. Litt. 4G c ; 2 Kent Com. 134 ; Sir Edward Turner's Case, 1 Vern. 7 ; Whitmarsh v. Robertson, 1 Coll. New Cases, 570. As to what are chattels real, see Schouler Pers. Prop. 29, 45-73. 2 Tullett V. Armstrong, 4 M. & C. 395 ; Draper's Case, 2 Freem. 29 ; Bullock V. Knight, Ch. Ca. 26(1. a 2 Kent Com. 135; Co. Litt. 3516; Butler's note 304 to Co. Litt. lib. 3, 351a. [141] * 138 HUSBAND AND WIFE. The wife's chattels real may be taken on execution for the debts of the husband while coverture lasts, by which means the title becomes transferred by operation of law to the cred- itor, and the wife's right, even though she should survive her husband, is gone.^ They may also be bequeathed by the hus- band by will executed during marriage, or by other instru- rgient to take effect after his death ; with, however, this result : that if the wife dies first the bequest will be effectual, not having been subsequently revoked by the husband ; while, if the husband dies first, the wife will take the chattel in her own right, unaffected by any will which he may have made, or by au}^ charge he may have created. ^ It would appear that any assignment of a chattel real by the husband will completely appropriate it, even though made without consideration.^ And if a single Xvoman has a decree to hold and enjoy lands until a debt due her has been paid, — known at the old law as an estate by elegit^ — and she after- wards marries, her husband may make a voluntary assignment so as to bind her."^ The right of appropriating the wife's chattels real is, therefore, to be distinguished from the right of reducing things in action into possession. The husband's interest in his wife's chattels real may be called an interest in his wife's right, with a power of alienation during cover- ture ; and an interest in possession, since such chattels are already in possession, but lying in action.° As the husband is entitled to administer in his wife's right when she is executrix or administratrix, he may release or assign terms for years or other chattels real vested in * 139 her as * such.^ But if he be entitled to a term of years in his wife's right as executrix or administratrix, and have the reversion in fee in himself, the term will not be merged ; for to constitute a merger both the term and the freehold should vest in a person in one and the same right.'^ 1 2 Kent Cora. 134 ; Miller v. Williams, 1 P. Wms. 268. 2 Co. Litt. 351 a, 466 ; Roberts v. Polgrean, 1 H. Bl. 635. 3 Cateret v. Pasdiall, 3 P. Wms. 200. But see «. to 1 P. Wras. 380. 4 Merriweather v. Brooker, 6 Litt. 256 ; Pasciiall v. Thurston, 2 Ero. P. C. 10. s Mitford V. Mitford, 9 Ves. 98. 6 Arnold v. Bidwood, Cro. Jac. 318 ; Tlirustout v. Coppin, W. Bl. 801. 7 Co. Litt. 338 6 ; 1 Bright Hua. & Wife, 97, and casea cited. [U2j EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 139 An exception to the husband's right by sundvorship to his wife's chattels real occurs in case of joint tenancy. If a single woman be joint-tenant with another, then marries and dies, the other joint-tenant takes to the exclusion of her husband surviving her : for the husband's title is the newer and inferior one.^ Where, during coverture, a lease for years is granted to the wife, adverse possession, which commences during cov- erture, may be treated as adverse either to the wife or to the husband.^ When the husband succeeds to his wife's chattel real upon surviving her, or appropriates it during coverture, he takes it subject to all the equities which would have attached against her. In other words, being not a purchaser for a valuable consideration, he can claim no greater interest than she had. Thus where the wife's chattel interest is subject to the pay- ment of an annuity, the husband must continue to make payment so long as the encumbrance lasts. And though he may not in all cases be bound on her covenant to make new leases, yet if he does so the equity of the annuitant will attach upon them successively.^ The law enables the husband during coverture to defeat his wife's interest by survivorship by an absolute disposition of the whole term, either with or without consideration.'* And the same rule applies to the wife's trust terms as to her legal * terms.^ In order to make it effectual, the right * 140 of the party in whose favor the disposition is made must commence in interest during the life of the husband ; but it is not necessary that it should commence in possession during that period. Thus the husband, though he cannot 1 Co. Litt. 185 b. 2 Doe V. Wilkins, 5 Nev. & M. 435. ' Moody V. Matthews, 7 Ves. 183 ; Rowe v. Chichester, Amb. 719. On the question of contribution by annuitants, see Winslowe v. Tighe, 2 Ball & B. 204 ; Hubbs V. Rath, 2 ib. 553. * 1 Bright Hus. & Wife, 98 ; Grute v. Locroft, Cro. Eliz. 287 ; Jackson v. McConnell, 19 Wend. 175. 8 Tudor V. Sarayne, 2 Vern. 270 (incorrectly reported, according to note, 1 Bright IIus. & Wife, 99). Sir Edward Turner's Case, 1 Ch. Ca. 307 ; Packer v. Windliara, Tree, in Ch. 412. [143] * 140 HUSBAND AND WIFE. bequeath these chattels by will, as against the wife's right by survivorship, may grant an underlease for a term not to com- mence until after his death ; and this act will divest the right of the wife under the original lease so far as the underlease is prejudicial to such right. ^ Nor need his disposition cover the whole chattel, since the disposition necessarily operates pro t'lnto? Nor need it be absolute, since a conditional dis- position is good if the condition subsequently takes effect.^ And the law enables the husband to dispose not only of the wife's interest in possession, but also of her possibility or contingent interest in a term, unless where the contingency is of such a nature that it cannot happen during his life.* A distinction is, however, made between cases where the disposition is intended of the whole or of part of the property, and where it is intended as a collateral grant of something out of it. In the latter case the transaction will not bind the wife, for if she survive her husband, her right being para- mount, and her interest in the chattel not having been dis- placed, she wiU be entitled to it absolutely free from such encumbrance.^ The husband may by other acts than express alienation divest his wife's title, and defeat her rights by survivorship in her chattels real. Thus, if the husband, holding a term in right of his wife, grant a lease of the lands covered * 141 by the * term, for the lives of himself and his wife, the wife's term would thereby merge, and her right in it be defeated.*^ Or if, while in possession, under a lease to himself and the wife, the husband should accept from the lessor a feoffment of the lands leased, the term would be ex- tinguished and the wife's right along with it ; for the livery would amount to a surrender of the term.' 1 Grute V. Locroft, Cro. Eliz. 287 ; Bell Hus. & Wife, 104, 105. 2 Sym's Case, Cro. Eliz. 33 ; Loftris's Case, ib. 276 ; Riley v. Eiley, 4 C. E. Green, 229. 3 Co. Litt. 46 h. But see 4 Vin. Abr. 50, pi. 14. 4 Doe d. SImw v. Steward, 1 Ad. & El. 800 ; 1 Bright Hus. & Wife, 100. And see Donne v. Hart, 2 Russ. & My. 360. s Co. Litt. 184 6; 1 Bright IIus. & Wife, 103. 6 2 Roll. Abr. 495, pi. 50. 1 Downing v. Seymour, Cro. Eliz. 012. And see Lawes v. Lumpkin, 18 Md. 334. [ 144 ] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 141 On the other hand, there are acts by the husband, which, although they amount to the exercise of an act of ownership, yet, as they do not pass the title, will not defeat the wife's right by survivorship. An instance of the latter is that of the husband's mortgage of his wife's chattels real ; or, what is the same thing in equity, a covenant to mortgage. This is in reality a disposition as security, and until breach of con- dition the mortgagee has no further title. But, in order to protect the mortgagee's rights, equity treats the mortgage or covenant as good against the wife to the extent of the money borrowed ; that once paid the chattels will continue hers.^ After breach of condition, the mortgagee's estate becomes absolute ; or, at least, he can make it so by foreclosure ; and the alienation of the term being then completed at law, the wife's legal right by survivorship is defeated ; subject, how- ever, to the equity of redemption, where the husband has not otherwise disposed of that hkewise.^ So, too, transactions, not constituting mortgages, in the ordinary sense of the term, may yet be so construed in equity where such was their sub- stantial purport. And while the intention of the husband to work a more complete appropriation will be justly regarded by the court, the mere circumstance of a proviso in the conveyance for redemption, pointing to a mode of reconvey- ance not in conformity with the original title, will not, * it seems, debar the wife from asserting her rights by * 142 survivorship.^ Among the miscellaneous acts of the husband, which will defeat the wife's survivorship to her chattels real, are the fol- lowing : A disseverance of his wife's joint tenancy during coverture.'* An award of the term to the husband, if carried into effect.^ The husband's criminal acts; such as attainder.^ 1 Bates V. Dandy, 2 Atk. 207 ; Bell Hus. & Wife, 107 ; 1 Bright Hus. & Wife, 106. - See Pitt V. Pitt, T. & R. 180 ; 1 Prest. on Estates, 345. 3 Clark V. Burgh, 9 Jur. 679. See In re Betton's Trust Estates, L. R. 12 Eq. 553 ; Pigott v. Pigott, L. R. 4 Eq. 449. * Co. Litt. 185 i ; Plow. Cora. 418. 6 Oglander v. Baston, 1 Vern. 396 ; note of Jacob to 1 Roper Hus. & Wife, 185, and cases commented upon. « Co. Inst. 351 a; 4 Bl. Cora. 387 ; Steed v. Cragh, 9 Mod. 4?. 10 [ 145 ] * 142 HUSBAND AND WIFE. So too his alienage.^ Lord Coke considered that ejectment recovered by the husband in his own name, would work ap- propriation ; but he was probably in error.^ Waste operates as a forfeiture of a term.-^ And finally, the husband's cred- itors may sell the wife's chattels real on execution, and by their own act determine her interest altogether.^ But it is held that the wife's survivorship is not defeated by such acts of her husband as erecting buildings on the leasehold j^rem- ises ; and making a mortgage, sale, or lease of part bars the wife only so far.^ Now, as to the wife's real estate. By marriage, the hus- band becomes entitled to the usufruct of all real estate owned by the wife at the time of her marriage, and of all such as may come to her during coverture. He is entitled to the rents and profits during coverture. His estate is, therefore, a freehold. But it will depend upon the birth of a child alive during coverture, whether his estate shall last for a longer term than the joint lives of himself and wife, or not. In the event of such birth, his interest lasts for his own life, whether his wife dies before him or not. If there be no child born alive, his interest lasts only so long as his wife lives. In either case, he has not an absolute interest, but only an estate for life, and his right is that of beneficial enjoyment. When his estate has expired, the real estate vests abso- * 143 lutely in * the wife or her heirs, and the husband's relatives have no further concern with it.^ While, therefore, the husband has the beneficial enjoyment of his wife's freehold property during coverture, at the com- mon law, the ownership remains in the wife. Herein, her 1 2 Bl. Com. 421 ; 4 Bl. Com. 387. See p. 145. 2 See Jacob's note to 1 Roper Hus. & Wife, 185 ; Co. Litt. 466 ; 4 Vin. Abr. 50, pi. 18. 3 Co. Litt. 351. < Miles V. Williams, 1 P. Wms. 258; Co. Litt. 351. 5 Riley v. Riley, 4 C. E. Green, 229. t> Co. Litt. 351 a; 2 Kent Com. 130 ; 1 Bac. Abr. 286 ; Junction Railroad Co. V. Harris, 9 Ind. 184. The husband's rights and Habilities attach to property bought by himself and held in his name as trustee for his wife ; I'liaris v. Leach- man, 20 Ala. 662. But not, as will be seen liereafter, to his wife's separate real estate. [146] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 143 right becomes suspended, not extinguished, by her marriage. The inheritance is in her and her heirs. Consequently, the husband may sue in his own name for injury to the profits of his wife's real estate ; as where growing crops are destroyed or carried off; for this relates to his usufructuary interest. But for injuries to the inheritance, such as trespass, by cut- ting trees, burning fences, and pulling down houses, and generally in actions for waste, the wife must be joined ; and if the husband dies before recovering damages, the right of action survives to the wife. And if the wife survives her husband, she may commence such suits without joining his personal representatives.^ But the husband cannot prosecute such an action alone after his wife's death during the pendencj^ of the suit.2 Besides the rents and profits during coverture, the husband, if the survivor, is entitled to all arrears accrued up to the time of his wife's death. Such property is not treated like the wife's ehoses in action, not reduced to possession. Accord- ingly, he may maintain suit after coverture to recover all rents and profits which had accrued while coverture lasted. And where the wife joins her husband in a lease, the covenant for jjayment of rent is for the husband's benefit alone while the usufruct continues.'^ But it would appear to be otherwise where rent is reserved to husband and wife, and her heirs and assigns.'* * In all cases, emljlements or growing crops go to the * 144 husband or his representatives at the termination of his estate.^ This rule was extended at the common law to cases 1 2 Kent Com. 131 ; Weller v. Baker, J Wils. 423, 424 ; Beaver v. Lane, 2 Mod. 217; Bac. Abr. tit. Baron & Feme, K. ; 1 Chit. PI. (Gtli Am. ed.) 85; 1 Bl. Com. 302; Illinois, &c., R. R. Co. v. Grable, 46 111. 445; Tliaciier c. Pliin- ney, 7 Allen, 146. Tlie husband can sue alone for digging up tiie soil and car- rying it away. Tallmadge v. Grannis, 20 Conn. 296. '^ Buck V. Goodrich, 38 Conn. 37. 3 1 Washb. Real Prop. 44 ; Co. Litt. 351 b ; Jones v. Patterson, 11 Barb. 572. * Hill V. Saunders, 4 B. & C. 529. The wife need not be joined in such suits for rent. Clapp v. Houghton, 10 Pick. 463 ; Beaver v. Lane, 2 .Mod. 217 ; Shaw V. Partridge, 17 Vt. 626; Edrington v. Harper, 3 J. J. Marsh. 360; Bai- ley V. Duncan, 4 Monr. 260. 5 Reeve Doni. Rel. 28, and cases cited ; Weems v. Bryan, 21 Ala. 302; Spen cer V. Lewis, 1 Houst. 223. [147] *144 HUSBAND AND WIFE. of divorce causa jjrecontr actus. ^ But it does not apply to divorce for the husband's misconduct under modern statutes.^ The husband's lease in right of his wife operates so far in the tenant's favor as to entitle the latter to emblements,^ The rule is the same whether the husband be tenant by curtesy or not. No action, therefore, can be maintained by the wifein such cases. The husband's interest in his wife's real estate is liable for his debts, and may be taken on execution against him. But nothing more than the husband's usufruct is thereby affected ; nor can the attachment.or sale affect the wife's ultimate title.* The rule in Massachusetts is to allow the purchaser to take the rents and profits for a definite period, or the whole life- estate, at an appraisal of the value founded on a proper estimate of the probabihty of human life. But where the whole life- estate is of more A^alue than the amount of the execution, the more proper, and perhaps the only mode, is the former.^ It has been held that the husband, under a bona fide deed of separation, without trustees, executed before judgment, may relinquish to his wife all interest in her lands, and thus avoid the demands of his creditors upon the * 145 property, even though an annuity be * reserved to him- self.^ And it is certain that the sheriff's deed cannot convey a greater interest than the defendant has at the time of attachment or of levy and sale." Therefore, where a statute allows the husband a distributive share in his wife's lands in 1 Orland's Case, 5 Coke, 116 a. - See Vincent v. Parker, 7 Paige, 65, per Chancellor Walworth ; Jeiiney v. Gray, 5 Oliio St. 45. 3 Rowney's Ca.se, 2 Vern. 322; G(jfilcl v. Webster, 1 Vt. 409. 4 2 Kent Com. 131 ; Babb v. Perley, 1 Me. 6 ; Mattocks v. Stearns, 9 Vt. 326 ; Perkins v. Cortrell, 15 Barb. 446 ; Brown v. Gale, 5 N. H. 416 ; Canby v. Porter, 12 Ohio, 79 ; Williams v. Morgan, 1 Litt. 168 ; Nichols v. O'Neill, 2 Stockt. 88; Montgomery v. Tate, 12 Ind. 615 ; Sale v. Saunders, 24 Miss. 24; Cheek v. Waldrum, 25 Ala. 152 ; Schneider v. Starke, 20 Mis. 269. But see Jackson v. Suffern, 19 Wend. 175. And see Rice v. Hoffman, 35 Md.344, as to the liability extending to the imsband's interest as tenant by the curtesy. 5 Litclifield V. Cad worth, 15 Pick. 23. 6 Bonshuigh v. Bonslaugh, 17 S. & R. 361. But see Bowyer's Appeal, 21 Penn. St. 210. ^ Williams v. Amory, 14 Mass. 20; Johnson v. Payne, 1 Hill, 111; Rabb v. Aiken, 2 McC. Ch. 119. [148] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 145 the event of his survivorship, no such interest passes to the purchaser of lands sold on execution for his debts during her life.^ Since the husband's life-interest is liable for his own debts, it is liable for the debts of the wife dum sola? The creditors of the husband cannot attach mere contingencies of th« wife which cannot happen before the death of either.^ But it is held in Pennsylvania that where a husband has con- veyed his life-estate in fraud of his creditors, they may levy upon the growing crops.* Where the husband was an alien, he could not acquire an interest in his wife's real estate at the common law.° But the disability is now removed in great measure by statute.*^ So at the common law, attainder of treason or other felony worked a forfeiture or escheat of real estate to the govern- ment. And corruption of blood affected the inheritance in such cases. But as regards the wife's real estate, nothing more could be taken than the husband's life-interest ; the free- hold continued in the wife as before. For the same reason, where the wife was at common law attainted of felony, the lord might enter to the lands by escheat, and eject the husband whenever the crown * had had its prerogative * 146 forfeiture of a year and a day's waste.''' The common law of attainder is of no force in this country so far as for- feiture and corruption of blood is concerned ; but it probably applies to the husband's life-interest in his wife's lands.^ The husband alone has power at common law to bind or alienate the wife's real estate during coverture. This right lasts, at any rate, during their joint lives (provided the parties 1 Starke v. Harrison, 5 Rich. 7. 2 Moore v. Richardson, 37 Me. 438. ' Hornsby v. Lee, 2 Madd. Ch. 16 ; Allen v. Scurry, 1 Yerg. 36 ; Sale v. Saunders, 24 Miss. 24. And see Osborne v. Edwards, 3 Stockt. 73. * Stehman v. Huber, 21 Penn. St. 260. See p. 165, as to claims for improve- ments on the wife's land. ■' 1 Washb. Real Prop. 48, and cases cited ; Bell Hus. & Wife, 151 ; Co. Litt. 31 h ; Menvill's Case, 13 Co. 293 ; 2 Bl. Com. 293 ; 2 Kent Com. 39-75. 6 See note to 1 Washb. Real Prop. 49, giving statutory changes. And see Bell Hus. & Wife, 151, 241. Stat. 7 & 8 Vict. c. 66, removes disabilities as to dower for the most part. T Bell Hus. & Wife, 149, 150 ; 2 Bl. Com. 253, 254. As to tlie wife's right of dower in such cases, see 2 Bl. Com. 253, and notes by Chitty and others. 8 See Const. U. S. Art. III. § 3. [149] * 146 HUSBAND AND WIFE. are not in the mean time divorced) ; and if the husband becomes a tenant by curtesy, it lasts during- his whole life. But the husband's power is commensurate with his estate. He cannot encumber the property beyond the period of his life-interest, nor prevent his wife, if she survives him, or her heirs after his death, from enjoying the property free from all encumbrances which he may have created.^ Under the ancient law of tenures, the husband could transfer the property so as to vest it in the grantee, subject to the wife's entry by writ cui in vita; for his act amounted to a discontinuance. Statute 32 Hen. VIII. c. 28, was remedial in its effect, so far as to give the wife her writ of entry, notwithstanding her hus- band's convej^ance. Copyhold lands followed a different rule, not being considered within the letter or the equity of this statute. But b}' the more recent statutes of 3 & 4 Will. IV. c. 27, and c. 74, and 8 & 9 Vict. c. 106, fines and recov- eries had been abolished and feoffments deprived of theii* tortious operation ; and it is enacted that no discontinuance or Avarranty made after the 31st day of December, 1833, shall defeat any right of entry or action for the recovery of land. At the present day there is, therefore, no mode of conveyance in the English law by which the husband can convey more than his own estate in his wife's lands.^ These latter statutes are not, per se, of force in this country, for they Avere passed in England after the colonization of * 147 America. * But the same result has been very generally reached in this country through a different process. In Massachusetts, the statute of 32 Hen. VIII. is still in force as a modification and amendment to the common law.^ In other States, ejectment or other summary process may be resorted to.* The universal doctrine, whatever may be the form of remedy, prevails, that the husband can do no act nor make any default to prejudice his wife's inheritance. And while his 1 2 Kent Com. 133. 2 1 Bright Has. & Wife, 162-168, and authorities cited; Bell Hus. & Wife, 195; Robertson v. Norris, 11 Q B. 916. ' 3 Bruce v. Wood, 1 Met. 542. * Miller v. Shackleford, i Dana, 264; N. Y. Rev. Stats. 4th ed.vol. 2, p. 303; 2 Kent Com. 133, n. [ 1.50 ] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 147 own alienation passes his life-estate, it can do no more ; and the wife, notwithstanding, may enter after his death and hold possession.^ So far as the effect of the husband's lease was concerned, the statute 32 Hen. VIII. c. 28, changed the old common law. By this statute, husband and wife are permitted to make a joint lease of the wife's real estate for a term not ex- ceeding three lives or twenty-one years. There were, how- ever, some restrictions placed upon the operation of this statute. Thus it was further declared that things which lie in grant, such as franchises, should be excepted; though tithes followed the general principle. And the old lease must have been surrendered either in writing or by operation of law within one year from making the new lease. Propert}^ in possession might be leased under the statute, but not prop- erty in reversion. The lease would not exempt the tenant from responsibility for waste. And the rent reserved should not be less than the average rent of the preceding twenty years. This statute has been strictly construed both in the common law and equity courts of England.^ But the husband's lease of the wife's lands, whether alone or jointly with her, may be good at the common law, though not made in compliance with the statute. In such case, the wife * may affirm or disaffirm the lease at the * 148 expiration of coverture. And the same right may be exercised by her issue, or by others claiming under her or in privity with her. So, too, where she marries again after her husband's death, her second husband has the privilege of election in her stead. But one who claims by paramount title to the wife, as, for instance, a joint-tenant surviving her, can- not exercise this right.'^ Some acts of the wife, on being released from coverture, will amount to an affirmance of her husband's informal lease. 1 2 Kent Com. 133, ». ; 1 Washb. Real Prop. 279 ; Butterfield v. Bcall, 3 Ind. 203 ; Huflf v. Price, 50 Mis. 228. •^ Bell Has. & Wife, 179-181 ; 1 Bright Hus. & Wife, 193-219 ; Darlington v. Pulteny, Cowp. 267. a Bell Hus. & Wife, 175, 177 ; Jeffrey v. Guy, Yelv. 78 ; Smalman v. Agborow, Cro. Jac. 417 ; Anon., 2 Dyer, 159. See also Tolcr v. Slater, L. K. 3 Q. B. 42, where the lessee was held bound on his covenant to pay rent. [151] * 148 HUSBAND AND WIFE. Thus acceptance of rent from the tenant, after her husband's death, will confirm the lease. ^ But parol leases of the wife's real estate are affected by the statute of frauds ; and not even acceptance of rent can bind the wife surviving : the lease will be treated as utterly void at the husband's death, and not voidable only.^ Whether acceptance of rent by the wife after the husband's death, would confirm a lease in writing, made by the husband alone, is a question on which the authoiities are not agreed.^ A distinction, however, is sometimes made between leases for life and leases for terms of years, when made by the hus- band alone. The former, it is said, being freehold estates and commencing by livery of seisin, could only be avoided by entry ; while the latter became void absolutely on the hus- band's death. But according to the better authority both kinds of leases follow the same principle, and are not void but voidable at the husband's death.^ * 149 * The husband's mortgage of his wife's real estate is effectual to the same extent as his absolute convey- ance ; that is to say, it will operate upon his life-estate or the joint life-estate of himself and his wife, as the case may be, and no further. And his lease of the wife's lands for a term of years for the purpose of creating an encumbrance in the nature of a mortgage, is treated in equity as a mortgage ; and the wife's acceptance of rent after his death, cannot make such a lease other than void on the termination of his life- estate.^ 1 Doe V. Weller, 7 T. R. 478. 2 Bell Hus. & Wife, 178. And see Winstell v. Hehl, 6 Bush, 58. 3 Bell Hus. & Wife, 177, and cases cited; Preamble to Stat. 32 Hen. 8, c. 28 ; Jordan ).-. Wikes, Cro. Jac. 332 ; Bac. Abr. Leases C. 1. See Wolton v. Hele, 2 Saund. 180, 7i. 10; Bro. Abr. Acceptance, 1 ; Dixon v. Harrison, Vaugh. 40 ; Goodright v. Straphan, 1 Cowp. 201 ; Perry v. Hindle, 2 Taunt. 180 ; Hill v. Saunders, 2 Bing. 112. * Bell Hus. & Wife, 177, 178, and cases cited ; contra, notes to 2 Kent Com. 133, and authorities referred to, including note of Sergt. Williams to Wolton v. Hele, supra. 5 Bell Hus. & Wife, 193, 194; Goodright v. Straphan, 1 Cowp. 201 ; Drybutter V. Bartholomews, 2 P. Wms. 127. The husband's mortgage, in this country also, passes only his life-estate, under the like circumstances. Miller v. Shackleford, 3 Dana, 291 ; Barber v. Harris, 15 Wend. 615 ; Railroad Co. v. Harris, 9 Ind. 184 ; Kay v. Whittaker, 44 N. Y. 505. [152] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 149 If a liusljand mortgage the legal interest in a term of years, belonging to him in right of his Tvife, on a claim to foreclose this mortgage against the husband and wife as defendants, no equity for a settlement upon the wife arises.^ The wife's remedy for waste deserves a passing notice. Waste consists in such acts done by a tenant for life or years to the estate he holds, as injure or impair the inheritance. Since the husband holds his wife's real estate as a life-tenant only, it would seem on principle that he ought to be held liable for waste like other life-tenants. A difficulty occurs, however, in applying the remedy ; fj,nd since the common-law action of waste is founded on the privity of parties competent to sue one another, no such suit can be technically main- tained as between husband and wife.^ But if the husband conveys to a third party, and such third part}^ commits waste, the action will lie. So when waste is committed by the hus- band's creditor who has taken his freehold interest on execu- tion.3 As the husband cannot commit waste, it follows that he cannot sell growing timber on her land except to a very limited extent.* The heir of the wife can sue the husband for waste ; though it would seem that he cannot sue the husband's assignee * for want of pri\dty.^ The wife * 150 is not without remedy against her husband, however, for chancery will interfere on her behalf by injunction, and stop him from committing waste upon her land ; and this is now the usual remedy against life-tenants.*^ And at the common law the husband was said to forfeit his term by such misconduct.'^ The husband may dissent from a purchase, gift, or devise of real estate to his wife during coverture ; since otherwise he might be made a life-tenant to his own disadvantage. But by such dissent he cannot and ought not to defeat her ulti- 1 Hill r. Edmonds, 15 E. L. & Eq. 280. 2 2 Kent Com. 131, 132; 1 Washb. Real Prop. 118-124; 1 Bright Hus. & Wife, 110. 3 Babb i\ Perley, 1 Me. 6 ; Mattocks v. Stearns, 9 Vt. 326. * Stroelje v. Felil, 22 Wis. 337 ; Porch v. Fries, 3 C. E. Green, 204. 5 Walker's Case, 3 Coke, 59 ; Bates v. Shraeder, 13 Johns. 260. 6 See 1 Washb. Real Prop. 125; lb. 281. 7 Co. Litt. 351 ; 1 Bright Hus. & Wife, 110, 169. [153] *150 HUSBAND AND AVIFE. mate title as heir.^ Nor on principle should he be permitted to dissent to any purchase, gift, or devise to the wife's separate use, by the terms of which his own interest as life-tenant is legally excluded. Subject to the husband's dissent and the wife's disagreement after her coverture ends, a conveyance to the wife in fee is always good.^ If the real estate of the wife be converted into personalty during her life by a voluntary act of the parties, the proceeds become personal estate, and the husband may reduce into his own possession or otherwise take the proceeds. This principle has already been noticed.^ But where conversion takes place by act of law, independently of husband and wife, the rule is not so clear. In New York, however, it is held* that where the real estate of a married woman has been converted into personalty by operation of law during her lifetime, it will be disposed of by a court of equity after her death in the * 151 same * manner as if she had herself converted it into personal property previous to her death.^ On the other hand, the rule is announced that where a mar- ried woman is entitled to a legacy, and land is given her in lieu thereof, the husband having effected no prior reduction of the legacy, it is to be held as hers and for her sole benefit. A case of this sort was lately decided in Pennsylvania ."^ And 1 Co. Litt. 3 a ; 1 Dane Abr. 388 ; 4 ib. 397 ; 1 Waslib. Real Prop. 280. 2 Co. Litt. 3 a, 356 6 ; 2 Bl. Com. 292, 293 ; 2 Kent Com. 150. The wife's privilege of disagreement to purchase extended to her heirs, ib. 3 Supra, p. 120. See Hamlin v. Jones, 20 "Wis. 536 ; Watson v. Robertson, 4 Bush, 37 ; Tillman r. Tillman, 50 Mis. 40. J Graham v. Dickinson, 3 Barb. Ch. 170. In this case, Flanagan v. Flanagan, 1 Bro. C. C. 500, appears to have been disapproved. 5 Graham v. Dickinson, 3 Barb. Ch. 170. See also Ellsworth v. Hinds, 5 Wis. 613; Jones v. Plummer, 20 Md. 416 ; Osborne v. Edwards, 3 Stockt. 73 But a husband may demand and reduce into possession his wife's legacy, even tliough it be made payable, by the terms of a will, from proceeds of tlie sale of the tes- tator's real estate. Thomas v. Wood, 1 Md. Ch. 296. Conversion takes place where husband and wife convey to trustees to sell and dispose for payment of debts, balance to be paid them as they shall direct or appoint. Siter v. McClan- achan, 2 Gratt. 80. 6 Davis V. Davis, 46 Penn. St. 342. And see Shallenberger r. Ashworth, 25 Penn. St. 152 ; Kempe v. Pintard, 32 Miss. 324. But see Brvis' Appeal, 60 Penn. St. 118, as to female ward's real estate treated as personalty, the guar- dian's mere change of investment having effected no conversion of the fund. [154] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 151 it is held that land jiurchased by a married woman with the proceeds of a legacy which the husband has declined to reduce into possession, is not liable for the husband's debts.^ Where a husband is in possession of land with a claim of title, his title will not be affected by the act of a third person who pretends to put his wife into possession.^ But the rule seems to be general that the husband's marital rights do not attach to property which is in the actual and rightful posses- sion of another, and of which he cannot obtain possession during coverture without becoming a trespasser ; notwith- standing the wife may have rights therein after his death.^ By the old Jaw of England it appears that if a husband agreed to convey real estate belonging to his wife, he might be compelled to execute the contract by getting her to levy a fine.'^ This rule no longer holds good in that country.^ Even where * the agreement has been made, not by the * 152 husband, but by the wife herself before her marriage, the agreement cannot now be enforced against the wife.^ But it is nevertheless binding upon the husband; though where the purchaser has not been misled, the husband cannot be made to convey his partial interest and submit to an abate- ment of the price, because of the wife's refusal to convey her real estate which he and she had promised to convey." An agreement by a feme covert for the sale of her real estate, the same not being her separate property, cannot be enforced at law or in equity against her.® And Sugden con- 1 Coffin V. Morrill, 2 Fost. 352. And see Sims v. Spalding, aupat, p. 131. 2 Powell V. Felton, 11 Ired. 469. 3 Hair v. Avery, 28 Ala. 267. 4 2 Brijiht Has. & Wife, 47; Macq. IIus. & Wife, 32. 5 Frederick )-•. Coxwell, 3 Y. & J. 514 ; Emery v. Ware, 8 Ves. 505 ; Sug. V. P. 4th ed. 231 ; 2 Story, Eq. Juris. 49-53 ; Martin v. Mitchell, 2 Jac. & W. 413 ; Thayer v. Gould, 1 Atk. 617 ; Daniel r. Adams, 1 Amb. 495. But see Davis v. Jones, 4 B. & P. 267. 6 Per Lord Cli. Cottenham, Jordan v. Jones, 2 Phill. 170. See Rowley v. Adams, 6 E. L. & Eq. 124. T Griffin v. Taylor, Tothill, 106 ; Hall i-. Hardy, 3 P. Wms. 187 ; Morris v. Stephenson, 7 Ves. 474 ; Castle v. Wilkinson, L. R. 5 Ch. 534. 8 Macq. Hus. & Wife, 32 ; Emery v. Ware, 5 Ves. 846 ; Sug. V. & P. 11th ed. 230. [155] * 152 HUSBAND AND WIFE. siders it doubtful whether a married woman, having a power of appointment, can thus bind herself.^ But modern statutes which permit the wife to convey with the observance of cer- tain formalities often permit her likewise to contract, to con- vey, and to encumber her lands. ^ Under the modern statute of 3 & 4 Will. IV. c. 74, which took effect in England from the end of the year 1833, married women are permitted to alienate or encumber their real estate by conveyances executed with their husbands pursuant to its provisions. This important law, with its later modifications, unfettered property which had long been fast bound.-^ The statute requires the concurrence of the husband in such con- veyances : also that the wife shall make an acknowledgment before certain judicial officers designated by the act, apart from her husband, to the effect that her own consent is freely and voluntarily given.* In this country the custom of a wife's joining her husband in a deed of conveyance of her lands has prevailed from * 153 a very * early period. In most, if not all, of the States, there are statutes existing as to the mode of execution, which contemplate the joinder of husband and wife in the conveyance, and an acknowledgment by one or both of the parties.^ Some of the States require a separate acknowledg- 1 Sug. V. & p. 11th ed. 231. But the wife cannot use her privilege i:i this respect unfairly where the purchaser has become bound on iiis part. See Cross V. Noble, 67 Penn. St. 74. 2 See next page ; Dankel v. Hunter, 61 Penn. St. 382. As to ratification by the wife, see Ladd v. Hildebrant, 27 Wis. 135. a See 8 & 9 Vict. c. 106. * See Macq. Hus. & Wife, 28-32 ; ib. Appendix, 1-47, where the provisions of this act, the rules of court made in pursuance, and leading decisions on the construction of different sections are fully given. And see In re Dowling, 18 C. B. N. s. 233. We have not thought it worth while to embody them in this work, as they have only a local application. There are many cases constantly arising in the English courts as to the interpretation of this statute, with its amendments ; but they seem chiefly confined to the effect of the wife's acknowl- edgment. Previous to the statute of 3 & 4 Will. 4, c. 74, the wife could convey her interest only by levying a fine, which, as well as suffering recoveries, is abolished by that statute. 1 Washb. Real Prop. 280 ; 1 Wms. Real Prop. 88. •^ 1 Washb. Real Prop. 281, and cases cited ; Davey v. Turner, 1 Dall. 15 ; Jackson v. Gilchrist, 15 Johns. 109 ; Page v. Page, 6 Cush. 196 ; 2 Kent Com. 151-155, and notes, showing custom in different States ; Albany Fire Ins. Co. v. Bay, 4 Comst. 9 ; Ford v. Teal, 7 Bush, 156 ; Mount v. Kesterson, 6 Cold. 452 ; [166] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 153 ment of the wife apart from her husband ; l)ut in this and other respects the laws are not uniform. There is less for- mality in general than under the English statute. Thus then does the wife pass title to her real estate. And since in the tenure of lands and the mode of convey- ance the law in this country has always varied considerably from that of England, the rights of married women in other respects may be different. Thus it would seem that the joint assent of husband and wife in accepting a title should be as good as in granting one.^ And in New Hampshire it is held that a deed to a /erne covert, made with her own and her hus- band's assent, vests the title legally in her."'^ In Pennsylva- nia, if land conveyed to her be encumbered, it passes to her subject to that encumbrance.^ And in Vermont it has been held that a deed of gift to a wife during coverture, if accepted by her husband, is accepted by her, and that her refusal apart from him is of no consequence.* But following the English doctrine, the wife's agreement to convey real estate is in this country held void in the absence of enabhng statutes, like her general contracts, though made with her husband's assent, and specific performance cannot be enforced against her.^ So it has been held in Vermont that the wife cannot, either separately or jointly with her husband, execute a valid power of attorney to * con- * 154 Tourville v. Pierson, 39 111. 446 ; Deery v. Cray, 5 Wall. 795 ; Alabama, &c. Ins. Co. V. Boykin, 38 Ala. 510 ; Lindley v. Smith, 46 111. 523 ; Tubbs v. Gate- wood, 26 Ark. 128. Tiie privy examination of a wife for ascertaining that she executes the deed freely and without undue influence or compulsion of her hus- band is a feature of the legislation in many States ; and the validity of her con- veyance often turns upon a compliance with such a requirement. Tubbs v. Gate- wood, suprit ; Richardson w. Kittle, 31 Ind. 119; McCandless v. Engle, 51 Peun. St. 309 ; Tapley v. Tapley, 10 Minn. 448. 1 1 Washb. Real Prop. 280. '^ Gordon v. Haywood, 2 N. H. 402. See Leach v. Noyes, 45 N. H. 364. 3 Cowton V. Wickersham, 54 Penn. St. 302. * Brackett v. Wait, 6 Vt. 411. 5 2 Kent Com. 168 ; Butler v. Buckingham, 5 Day, 492 ; Holmes v. Thorpe, 1 Halst. Ch. 415 ; Lane v. McKeen, 15 Me. 304. We make, of course, no refer- ence here to the wife's separate proiierti/, or to her rights under what are known as the "married women's acts." See Blake v. Blake, 7 Iowa, 46. A contract to convey, made by husband and wife, maybe good against the husband, though void as to the wife. Steffey v. Stertey, 19 Md. 5; Johnston y. Jones, 12 B. Monr. 326 ; 2 Kent Com. 168. See p. 152. [157] * 154 HUSBAND AND WIFE. vey her lands. ^ And a deed, in order to bind the wife's heirs, must have been delivered as well as executed, during her lifetime.- Nor can her husband, after her decease, as against such heirs, confirm a conveyance which was fatally irregular on her part.^ If her conveyance be void, a note given in" part payment of the price is necessarily without con- sideration.^ In some States the separate conveyance of a married woman or her execution jointly with her husband, but without ob- servance of the statute formalities, is void.^ But in others such irregularities are not held fatal to the instrument, and she is bound on the usual principles, even though her deed be separate from that of her husband and executed at a different time.'' The deed of a married woman as trustee is good against her heirs, claiming adversely to the trust, even though given without the assent of her husband. And a hke deed executed under a power of attorney, granted by her alone, is equally valid .' So, too, in this country a married woman may mortgage as 1 Sumner v. Conant, 10 Vt. 1. See Gillespie v. Worford, 2 Cold. 632; Har- denburgh v. Lakin, 47 N. Y. 109. Thoenberger v. Zook, 34 Penn. St. 24. But see Ackert v. Pults, 7 Barb. 386 ; Soraers v. Pumphrey, 24 Ind. 231. 3 Dow V. Jewell, 1 Post. 470. 4 Warner v. Croucli, 14 Allen, 163, 5 Trimmer «. Heagy, 16 Penn. St. 484; Scarborough v. Watkins, 9 B. Monr. 540 ; Dow v. Jewell, 18 N. H. 340 ; Kerns v. Peeler, 4 Jones, 226 ; Cincinnati v. Newell, 7 Ohio St. 37 ; Pratt v. Battels, 28 Vt. 685 ; Boyle v. Chambers, 32 Mis. 46; Berry v. Donley, 26 Tex. 737; Jewett v. Davis, 10 Allen, 68; Baxter V. Bodkin, 25 Ind. 172. •^ Albany Fire Insurance Co. v. Bay, 4 Comst. 9 ; Card v. Patterson, 5 Ohio, 319; Smith v. Perry, 26 Vt. 279 ; Strickland v. Bartlett, 51 Me. 3.55. The ques- tion in such cases is frequently one of statute construction. A deed of real estate executed by husband and wife while the latter is under age may be avoided by her afterwards, though thirty years have elapsed. Yourse v. Nor- cross, 12 Mis. 549. And see Porch v. Fries, 3 C. E. Green, 204. But not where she had made oath that she was of age. Schmitlieimer v. Eiseman, 7 Bush, 298. As to barring an estate tail in case of a married woman, see Lippitt v. Huston, 8 R. I. 415. The wife's title to lands vested in her under an unrecorded deed cannot be divested by her parol consent to its cancellation and a new deed to her husband. Wilson v. Hill, 2 Beasl. 143. "^ Gridley v. Wynant, 23 How. (U. S.) 500; Lew. Trusts and Trustees, 89, 90 ; Sug. Pow. 192, 196. See further Galusha i;. Hitchcock, 29 Barb. 193. [158] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. * 154 well as alienate her real estate by joining her husband in the conveyance and making due acknowledgment, and this, too, though no consideration pass to her thereby.^ Where the wife joins her husband in a conveyance of the nature of a mort- gage, she subjects her real estate to the risk of complete alienation by foreclosure for her husband's debt. She is estopi^ed *by her own acts from denying the validity * 155 of the mortgage.^ She may covenant that scire facias may issue in default of payment.^ She may create a valid power in the mortgage to sell in default of payment.* And in general she may convey upon condition and prescribe the terms. ^ The rights of the wife are nevertheless in such cases treated with great consideration in our courts.^ In all cases the wife, who joins her husband in a mortgage of her own property to secure his debts or the payment of money loaned to him, is merely the surety of her husband, and is entitled to all the rights and privileges of a surety. This rule is well settled." And the fact that by the terms of a mortgage, the surplus is to be paid to the husband after satisfying the mortgage debt, and not to the wife, or to the mortgagors jointly, will not repel the idea that the wife was, or intended to be, a surety.^ 1 Eaton V. Nason, 47 Me. 132 ; Swan v. Wiswall, 15 Tick. 126 ; Whiting v. Stevenfs, 4 Conn. 44 ; 1 Hill. Mort. 272 ; Deniarest v. Wynkooi), '6 Johns. Ch. 144; 2 Kent Com. 167; Siter v. McClanachan, 2 Gratt. 280; Pliilbrooks v. McEwen, 29 Ind. 347 ; Moore v. Titman, 33 111. 358 ; McFerrin i'. White, G Cold. 4y9 ; American, «S;c., Ins. Co. v. Ow en, 16 Gray, 491. 2 McCullough V. Wilson, 21 Penn. St. 436. 3 Black V. Galvvay, 24 Penn. St. 18. * 2 Kent Com. 167 ; Vartie v. Underwood, 18 Barb. 601. 5 Deniarest <;. Wynkoop, 3 Johns. Cli. 129; 2 Kent Com. 167. So too in England. Pybus v. Smith, 1 Ves. Jr. 189; Essex i\ Atkins, 14 ib. 642. See Gilbert v. Mayford, 1 Scam. 471 ; Iluscombe v. Hare, 2 Bligh, 192 ; Bird v. Davis, 1 McCart. 467. •^ See Bayler v. Commonwealtli, 40 Penn. St. 37. "Will a court of equity in- terfere in favor of one who is an assignee or covenantee, but not for value, to enforce a wife's engagement to pay an old debt of her husband ? The answer is plain. If it will not decree the pertbrnuuice of an ordinary agreement, not founded on a valuable consideration, mucii less will it enforce such a contract against a. feme covert." Per Strong, J. ; ib. p. 44 ■J Keimcewicz v. Gahn, 3 Paige, 614 ; Hawley v. Bradford, 9 Paige, 200 ; Var- tie V. Underwood, 18 Barb. 561. 8 Vartie v. Underwood, 18 Barb. 661. But see Dean v. Phillips, 17 Ind. 406. [ i^y ] * 155 HUSBAND AND WIFE. The property actually mortgaged by her, and not her property in general, is thus subjected to the payment of her husband's note.i A wife is not bound by her warranty in a deed which she executes. Nor by any covenants contained therein. This is the general common-law rule in England and America.^ For this accords with the principle that married women are incapa- ble of binding themselves by contract. Yet the husband may be bound on his part, notwithstanding.^ In England, where the wife formerly passed her real estate by suffering a * 156 fine, it was * held long ago that if the grantee were evicted by a paramount title, the wife could be sued on her covenant of warranty after her husband's death.* So, too, it was formerly said that the wife should be held bound on the covenants contained in a lease of her lands executed during coverture, with her husband, and affirmed by herself after his death, by such acts as the acceptance of rent ; '" and this doctrine is certainly not unreasonable so far as a subse- quent breach of covenant is concerned. But further than this courts would not probably go at this day. And in this country the wife's covenants in a conveyance executed jointly with her husband are considered binding upon her only by way of estoppel ; not so as to subject her to suit for damages.^ 1 See Wolf V. Van Metre, 23 Iowa, 397 ; Logan v. Thrift, 20 Ohio St. 62 ; Hobson V. Hobson, 8 Bush, 665. Her equity will be barred by regular sale under a power of sale mortgage, as under a sale by decree of chancery. Strother V. Law, 54 111. 413. Deed with certain simultaneous agreements may create, as against tlie wife, the relation of mortgagor and mortgagee, on the usual prin- ciples. Ragan v. Simpson, 27 W^is. 855. A mortgage executed in blank by the wife was held to be invalid in Simms v. Hervey, lU Iowa, 273. And in general the statute formalities relating to conveyances must have been complied with. Halt V. Houle, ID Wis. 472. As to agreements for extension, see Belloc v. Davis, 38 Cal. 242. See further Holmes v. McGinty, 44 Miss. 94. And as to the wife's equities in such mortgage, see infra, pp. 176-179. 2 2 Kent Com. 167, 168 ; Fowler v. Shearer, 7 Mass. 21, per Parsons, C. J. ; Falmouth Bridge Co. v. Tibbetts, 16 B. Monr. 637 ; Den v. Demarest, 1 Zab. (N. J.) 625; Kawle Cov. 673, 674. 3 Buell V. Shuman, 28 Ind. 464. * Wotton V. Hele, 2 Saund. 177 ; 1 Mod. 290. Chancellor Kent justly ob- serves that this was a very strong case to show that she miglit deal with her land by fine as &fime sole. 2 Kent Com. 167. 5 2 Saund. 80, note 9. f" Nash V. Spofford, 10 Met. 192 ; Jackson v. Vanderheyden, 17 Johns. 167 J Dean v. Shelly, 57 Penn. St. 426 ; Hyde v. Warren, 46 Miss. 13. [160] EFFECT OF COVERTURE UPON WIFE'S REAL ESTATE. *156 Indeed, in New York the wife's privilege in this respect is carried ranch further, for she is permitted to execute a con- veyance of land with her husband, containing a covenant of warranty on her part, and then to defeat the title by acquir- ing an adverse interest afterwards.^ If the wife at the time of her marriage has a life-estate in lands, her husband becomes seised of such estate in the right of his wife, and he is entitled to the profits during coverture. So if it were granted to a trustee for her own use. And the same rule applies whether the estate be for the life of the wife or of some other person. If the estate be for the wife's own life it terminates at her death, and the husband has no further interest in it. But if it be an estate for the life of another person who survives her, the husband takes the profits during the remainder of such person's life as a special occu- pant of the land. The husband's representatives in either case * take crops growing on the land at the * 157 time of his death.^ But the husband might at common law take a release or confirmation to enlarge his life-estate.^ As concerns the wife's life-estate in her real or personal property, the English chancery courts have followed out ex- ceptions to the doctrines of equitable assignment.'* Not only is the husband's assignment sufficient to bar the wife's surviv- orship ; but a purchaser for value takes it free from the encumbrance of the wife's equit}^ to a settlement. In this case, it is said, equity will follow the law, which gives to the husband the power of dealing with the income of his wife's property, and will not put in force the rule that he who comes into equity must do equity, whereby purchasers would be involved in inquiries into the relations between husband and wife, their property, and means of maintenance.^ 1 Jackson v. Vaiulerheyden, 17 Johns. 167 ; Carpenter v. Schermerhorn, 2 Barb. Ch. 314. And see Shumaker v. Johnson, 35 Ind. 33. Contra, Colcord v. Swan, 7 Mass. 291; Hill v. West, 8 Ohio, 225 ; Massie ?;. Sebastian, 4 Bibb, 436; Nash r. Spofford, 10 Met. 192. And see 4 Com. Dig. 79 6. 2 2 Kent Com. 134 ; 1 Bright Hus. & Wife, 112, 118. 3 Co. Litt. 290. * See Purdew v. Jackson, 1 Russ. 1, and other cases commented upon, supra. 5 Tidd V. Lister, 17 E. L. & Eq. 560 ; 10 Hare, 140 ; s. c. on appeal, 3 De G., 11 [ 161 ] * 157 HUSBAND AND WIFE. A husband acquires by his marriage the right to use and occupy during coverture lands held by his wife in joint tenancy.^ M. & G. 868. And see ;Drew v. Long, 21 E. L. & Eq. 339 ; Hileraan v. Bon- slaugh, 13 Penn. St. 344. A wife has no equity in arrears of past income of real or leaseliold property wliich the husband lias assigned to a particular assignee. In re Carr's Trusts, L. R. 12 Eq. 609. 1 Bishop V. Blair, 36 Ala. 80 ; Royston v. Royston, 21 Geo. 161. [162] J EFFECT OF WIFE'S DECEASE. * 158 * CHAPTER VII. *158 common-law rights and disabilities of the husband on his wife's decease. On the death of the wife, the husband becomes entitled to administer on her estate. The court ha^dng jurisdiction in such matters must issue letters to him, and to him alone, unless he renounce or decline. The foundation of this claim has been variously stated ; b}^ some it is said to be derived from the statute 31 Edw. III., on the ground of the husband's being " the next and most lawful friend " of his wife ; while there are other authorities which insist that the husband is entitled at common law, jure mariti, and independently of the statutes. But this right, however founded, is now regarded in England as unquestionable, and is expressly confirmed by the statute 29 Car. II. c. 3 (amendatory of statute 22 & 23 Car. II. c. 10), which enacts that the statute of distributions " shall not extend to the estates of femes covert, that shall die intes- tate, but that their husbands may demand and have administra- tion of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of the said act." ^ This same right of the hus- band is generally, though not universally, recognized in this country, and in the diiferent States there are statutes which regulate the subject of administration, not only as to the wife dying intestate, but as to all others.^ To this rule some exceptions have been introduced in later years, owing chiefly to the modern facilities for separa- tion and * divorce, and the enlarged capacity given to * 159 the wife to act as iifeme sole, and to dispose of her own property. Thus in a late English case where a married woman 1 1 Wms. Ex'rs, 4th Am. ed. 336 et seq. 2 2 Kent Com. 135 ; ib. 410. [163] * 159 HUSBAND AND WIFE. lived separate from her liuslmnd, after having obtained an order of protection, and then died, leaving him and a minor son, administration was granted to a guardian elected by the son, upon proper security, without citing the father.^ And in this country the marital rights of the husband over his wife's unadministered property, when her death occurred during a state of separation for his misconduct, have been sometimes denied.^ Since, as we have already seen, the husband takes absolutely his wife's personal choses in possession at the common law by virtue of the marriage, and, if he be the survivor, her chattels real likewise, there would generally appear to be no object gained iu seeldng letters of administration on her estate, unless she had choses in action unrecovered at the time of her death. But a case might arise where he had a just claim against her estate, and wished to enforce it by a sale of her real estate as administrator. Or he might intend to prosecute a suit. Or letters of administration might be desirable for the purposes of creditors. And peculiar considerations aj)ply sometimes to what we term the wife's separate property even after her death. There are cases in these da3^s where a husband is found to be executor under his wife's will.-^ There is a distinction between property acquired by the husband absolutely by virtue of marriage, and property ac- quired in his representative capacity. The former is his own, free from all demands of his wife's creditors. But the latter comes to him only by way of distribution, after payment of all just debts against his wife's estate. A notable case in jDoint is that of Heard v. Stamford^ where a single woman con- tracted a debt for which she gave herpromissory note of-^£50. She afterwards married, and brought to her husband a fortune of X700. On her death it appeared that the husband had acquired a portion of this fortune during coverture ; * 160 the other portion was still * outstanding at her death as a chose in action^ and could only be recovered by the 1 Goods of Stephenson, L. R. 1 P. & D. 285. - Cooper I'. Maddox, 2 Sneed, 135. And see Moyer's Appeal, 16 Penn. St. 405. 3 Martin v. Foster, 38 Ala. 088. [ 164 ] EFFECT OF WIFE'S DECEASE. * 160 late husband as her administrator. Lord Chancellor Talbot decided that from the latter portion, after it had been recov- ered, the creditor should be satisfied ; but that no claim could be enforced against the former portion. ^ Debts contracted by the wife during marriage follow a somewhat different rule at the common law ; for either they are the debts of the hus- band or no legal debts at all.^ By the English statutes of distribution (and perhaps by the common law), not only is the husband entitled to administer upon his wife's estate in preference to all others, but, subject to the payment of such debts as we have described, he recov- ers her outstanding property to his own use and enjoj'ment, including rights vested and contingent, and funds at her dis- posal during her lifetime or held in trust for her, save so far as he may be excluded by the terms of the trust. Even if he does not take out letters of administration, he is equally entitled to the property.^ He is therefore said to administer for his own benefit. And since husband and wife are not, prope]"ly speaking, next of kin to one another, the title the husband thus acquires may be designated as a title jure mariti under the statutes of distribution.* The statutes of distribution in this country seem to have very generally adopted the English principle, and to have given the husband the sole title to the wife's outstanding personal property upon her death, to the exclusion of her kindred, even to the exclusion of her own children.^ Hence 1 Cas. temp. Talb. 173 ; 3 P. Wms. 409 ; Macq. Hus. & "Wife, 188. And see Hetrick v. Iletrick, 13 Iiid. 44*; Donnington ;;. Mitcliell, 1 Green Ch. 243. The statute rule now introduced into many States, is that the luisband is liable as administrator on the estate of his wife for her debts, only to the extent of the assets received by him. See N. Y. Rev. Stat. vol. 2, p. 75. •i See Hill I'. Goodrich, 46 N. H. 41 ; Bain v. Doran, 54 Penn. St. 124. 3 Clough V. Bond, 6 Jur. 50. See Mitchell v. Holmes, L. R. 8 E.x. 119, as to a sum made payable to the " administrator " of J., a married woman. * 2 Bl. Com. 515; Watt v. Watt, 3 Ves. 24G, 247; 2 Kent Com. 136, and authorities cited. 5 Hansom v. Nichols, 22 N. Y. 110 ; McCosker v. Golden, 1 Bradf. Sur. 64 ; 2 Kent Com. 136; Donnington v. Mitchell, 1 Green Ch. 243; Jones v. Brown, 34 N. H. 439; Hawley v. Burgess, 22 Conn. 284; Stockett r. Bird, 18 Md. 484; Rice V. Thompson, 14 B. Monr. 377 ; Williams v. Carle, 2 Stockt. 643 ; Walker [165] * 160 HUSBAND AND WIFE. * 161 if the husband, after * his wife's death, obtain pos- session of her personal property, without taking out letters of administration, he may retain it against her next of kin.i And if the wife's next of kin administer, he will be a trustee for the husband or his representatives, in accordance with the Enghsh rule.^ But the principle that the husband administers exclusively for his own benefit on his wife's estate is not recognized in Vermont, but on the contrary has been pronounced incom- patible with the legislation of that State.^ And the rule, as there declared, is that choses in action of the wife, not reduced to possession by her husband, during her life, nor as her ad- ministrator, by reason of his removal by the court, go to her heirs, according to the statute of descents and distribution. So in some other States the husband is entitled by law to a portion only of the balance in his hands as administrator, or is postponed to her next of kin altogether ; is not allowed to succeed to her estate by virtue of his marital right without taking out letters of administration ; nor to administer with- out accounting for his balances to the persons designated by statute as entitled to distributive shares.^ Where the husband himself dies before the wife's outstand- ing personal chattels are recovered, his next of kin will be entitled to them in equity. This is the rule in England ; also in America, wherever the husband's right to administer for his own benefit is recognized ; for it is the necessary con- sequence of that doctrine. But in England a somewhat cir- cuitous course was usually taken in such cases. The wife's next of Idn were held entitled to letters of administra- * 162 tion de bonis non of her * estate not received by her husband during liis life. But they were accountable V. Walker, 25 Mis. 367; Clay v. Irvine, 4 W. & S. 232; Barnes v. Underwood, 47 N. Y. 351 ; Pickens v. Hill, 30 Ind. 26'J. 1 Hendren v. Colgin, 4 Munt. 231. ^ Betts V. Kinipton, 2 B. & Ad. 273 ; Hunter v. Hallett, 1 Edw. Ch. 388 ; Whitaker v. Wliitaker 6 Jolins. 112. See also statutes of the several States, which generally regulate the subject of administration and distribution. 3 Holmes r. Holmes, 28 Vt. 765. * Cox V. Morrow, 14 Ark. 603 ; Welch v. Welch, 14 Ala. 76 ; Nelson v. Goree, 34 Ala. 565 ; Baldwin v. Carter, 17 Conn. 201 ; Curry v. Fulkinson, 14 Ohio, 100. [166] \ EFFECT OF WIFE'S DECEASE. * 162 as trustees for the legatees or next of kin of the husband.^ In this country, if the husband dies, leaving assets of his wife unadministered, the right of administration follows the right of estate, and devolves upon the husband's next of kin.^ And this seems to have been finally adopted as the English prac- tice in such cases.'^ Whenever administration de bonis non of the wife is granted to a third person, in either England or America (subject to such exceptions as were noted in the preceding paragraph), this administrator is a trustee for the representatives of the husband in case he dies after his wife.* In a late English case a female took administration of the estate of a deceased person as creditor, got in a large part of the estate, and paid some of the debts ; she afterwards mar- ried and died. The husband had taken possession of lease- holds, part of the estate, but no fund had been set apart for the payment of the wife's debt. It was held that administra- tion of the unadministered effects of the deceased could not be taken by the husband in his own right as a creditor, but only as representative of his wife.^ In another case the defendant received money for a married woman, and wrote to her that he held it at her disposal. The wife died, and then the husband, who had not interfered in the matter ; and the wife's administratrix sued the defendant * for money had and received to the use of * 163 the wife. It was held that he could maintain the action.^ An action for a legacy due to a wife, or for other choses not 1 Bell Hus. & Wife, 62; Macq. Hus. & Wife, 53, n. ; Humphrey, j;. Builen, 1 Atk. 4od; Squib v. Wyn, 1 P. Wms. 378; Cart v. Rees, ib. 3«1 ; Elliot v. Col- lier, 3 Ark. 52ti. ^ lioosevelt v. EUithorp, 10 Paige, 415; Stewart v. Stewart, 7 Johns. Cli. 229; Bryan v. Kooks, 25 Geo. G22; Ward v. Thorupsou, 6 Gill & J. 34'J ; Patterson i-. High, 8 Ired. Eq. 52. •^ Fielder v. lianyer, 3 Hag. Eccl. 770 ; 2 Kedf. Wills, 70; 1 Wnis. Ex'rs, 300. ^* English cases cited above ; Whitaker y. Whitaker, G Johns. 112 ; Hendren t;. Colgin, -1 Munf. 231 ; Clark t- . Clark, G W. & S. 85 ; 2 Kent Com. 13G, and cases cited ; Bells v. Ivinipion, 2 B. & Ad. 273 ; Bryan v. Kooks, 25 Geo. G22. By stalute in New York tlie husband's executors and administrators take the prop- erty, and no administrator dt bonis non need be appointed on the witie's estate. Lockwood V. Stockliolm, 11 Paige, 87. s Goods of liisdon, L. K. 1 P. & D. 637. « Fleet V. Perrins, L. R. 4 Q. B. 500 ; s. c. L. R. 3 Q. B. 536. [ 167 J * 163 HUSBAND AND WIFE. reduced into possession during coverture, is proj^erly brought in the name of her administrator after her death.^ And the rule would appear to be the same, though the consideration of the chose was the wife's real estate.^ So it is held that where a legacy was given to a trustee for the use of a married woman, who died without having received it, and the hus- band afterwards died without having recovered it, the personal representative of the husband is entitled to a decree in equity, as against the personal representative of the wife, for such portion thereof as may have come to the hands of the latter, and against the trustee for the balance retained by him.^ But the husband as tenant by the curtesy may have, upon certain conditions, an enlarged life-interest in his wife's lands, extending beyond her life if he survives. Tenancy by the curtesy, or tenancy by curtesy, is a freehold estate in the hus- band for the term of his natural life. He acquires it by the fact that a child capable of inheritance is born of the mar- riage. The meaning of the term is somewhat obscure. Some have thought the word " curtesy " signifies the favor or courtesy with which the law regards the husband. Others that it comes from the Latin word curtis, and has I'eference to the feudal custom which permitted the husband, as soon as a son was born, to attend court as one of the pares cnrice, and do homage without his wife. But there is reason to believe that tenancy by the curtesy existed in the civil law during the reign of Constantine.* This privilege of the husband ex- tends to all lands and tenements of which the wife was * 164 seised at any time * during coverture, whether legal or trust estate, whether in fee-simple, or by way of re- mainder or reversion.^ The common law affords herein a rare but positive instance of public policy discriminating in favor of the propagation of children. I Willis V. Roberts, 48 Me. 257 ; Allen v. Wilklns, 3 Allen, 321. '•i Driggs V. Abbott, 27 Vt. 580. ^ Coleman v. Hallowell, 1 Jones Eq. 204. But see Fleet v. Perrins, supra. * 1 Washb. Real Prop. 128, and authorities cited ; 2 Bl. Com. 126, and notes by Chittj- and others; Wright Ten. 193, 194; 2 Bright Hus. & Wife, 116. 5 lb. ; Co. Litt. 30 a ; ib. 29 a, n. 165 ; Watts i'. Bail, 1 P. Wms. 109. [1G8] EFFECT OF WIFE'S DECEASE. ♦ 164 Four things are essential, at common law, to entitle a hus- band to curtesy. First. A lawful marriage. Second. Seisin of the wife at some time during coverture. TJiird. Birth alive of issue capable of inheritance. Fourth. Death of the wife. After the birth of the child the husband's title to curtesy becomes possible ; and the curtesy is then initiate. After the death of the wife the title to curtesy becomes complete ; and the curtesy is then consummate.^ Of late years tenancy by the curtesy has become practically infrequent in England by reason of the prevalence of mar- riage settlements excluding such right.^ In this country it has existed in all of the older States, but is modified in many of them, expressly or by implication, by late statutes. In Iowa and Indiana, curtesy is expressly abolished, and a cer- tain defined interest in the wife's real estate of the dower sort goes to her husband instead, by way of inheritance. In Texas, California, Louisiana, and other States where the ten- ure of real estate comes from the community or civil law, rather than the common law, curtesy is not recognized. In some of the States the right of curtesy appears to be denied to husbands wlio wilfully neglect and desert their wives. In certain New England States, as Massachusetts and Rhode 1 For a full description of curtesy with its incidents, see 1 Waslib. Real Prop. 127 ; Wnis. Real Prop. 8th ed. 218 ; 4 Kent Com. 27-35. Questions concerning tiie husband's curtesy are most commonly raised with reference to the second essential above stated. Kent says (4 Kent Com. 29, 80) that the wife, according to the English law, must have been seised in fact and in deed, and not merely of a seisin in law of an estate of inheritance. But he admits that tliis rule was relaxed in equity by a free and liberal con.struction ; and he further intimates that in Connecticut, if not in some other parts of this country, there was a disposition to carry the principle still further. Seisin in law, without actual entry, is in many States at the present day deemed sutRcient to give curtesy. Wass v. Bucknam, 38 Me. 356; Watkins v. Thornton, 11 Ohio St. 367 ; Rabb ;'. Griffin, 26 Miss. 579 ; Stephens v. Hume, 25 Mis. 349. Of the husband's curtesy in his wife's separate property we shall speak here- after. We may add that the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder, while there is an outstanding life-estate not terminated ; her interest must fall into possession before he acquires an inchoate right of wliich either he or his creditors can take advantage. Ferguson v. Tweedy, 43 N. Y. 543 ; Gibbins v. Eyden, L. R. 7 Eq. 371 ; Shores v. Carley, 8 Allen, 425 ; Moore v. Calvert, 6 Bush, 356. ^ Wms. Real Prop. 187 ; 1 Washb. Real Prop. 129. [169] * 164 HUSBAND AND WIFE. Island, tenancy by the curtesy is expressly reserved by stat- ute.^ As to its present existence in New York there is some uncertainty.^ *165 * For an injury to the wife's inheritance in lands the husband cannot sue alone, since the cause of action will not survive to him.^ Consequently he cannot prosecute such an action after the death of the wife during the pend- ency of such a suit and before judgment.* If the husband should die first, however, the suit will not abate, as he is not the real plaintiff.^ Inasmuch as the husband's interest in his wife's lands is limited to the usufruct as a life-tenant, it follows that all claims presented by him against her estate, after her death, in relation to such property, will be closely scrutinized. Thus it has been held that he cannot claim reimbursement for moneys paid in settling controversies in regard to the title of his wife's real estate.^ So where a husband was sued with his wife for her debt contracted before marriage and secured by a mortgage of her land, and after her death voluntarily suifered judgment to be rendered against him for the amount of the debt, when he knew that he was not legally liable to a judgment, and paid the debt on execution, taking to him- self no assignment of the mortgage, but suffering it to be ' See statutes of different States cited in 1 Washb. Real Prop. 258, and note ; and notes to 4 Kent Cora. 34. Statute provisions as to curtesy and dower are frequently alike. And see Ross v. Adams, 4 Dutch. 160 ; Noble v. Noble, 19 Ind. 431. As to the effect of the wife's deed of trust of her land in Iowa, where the husband did not release his " dower interest," and a sale was subsequently made under the trust, see Huston v. Seeley, 27 Iowa, 183. ■' Hui d V. Cass, 9 Barb. 866 ; Clark v. Clark, 24 Barb. 581 ; contra, Billings v. Baker, 28 Barb. 343. ■^ Clapp V. Stoughton, 10 Pick. 463; Fuller v. Naugatuck R. R. Co., 21 Conn. 557 ; Com. Dig. Baron & Feme, V. * 1 Bl. Com. 443 ; 1 Chitty PI. 75; Ryder v. Robinson, 2 Greenl. 127 ; Buck V. Goodrich, 33 Conn. 37. And see Deadrich v. Armour, 10 Humph. 588. * 1 Chitty PI. 22 ; Little v. Downing, 37 N. H. 355 ; Jaques v. Short, 20 Barb. 269. As to tlie right of a judgment creditor, after the wife's death, to reach tiie imsband's interest, on an issue of fraud, see Curtis v. Fox, 47 N. Y. 299. « Campbell v. Wallace, 12 N. H. 362 ; Burleigh t-. Coffin, 2 Fost. 118. [170] EFFECT OF WIFE'S DECEASE. * 165 discharged altogether, it is held that he cannot seek indem- nity from his wife's heirs either at law or in equitj^, even though he had misapprehended the legal effect of his consent to the judgment.^ So the general rule is strict as regards improvements made by the husband upon his wife's real estate. The English doctrine is that if the husband erects buildings upon his wife's lands, or otherwise makes permanent improvements thereon, expending his own money for such purpose, the presumption is *that he intended the expense for * 1G6 his wife's benefit, and he cannot recover for it.^ Sev- eral cases of this sort have come before our own courts quite recently, the claims being usually presented after tlie wife's death ; and this principle has been rigidly applied, though doubtless occasioning in some instances positive hardship and wrong.^ And since the husband has no interest in improve- ments upon his wife's real estate, neither, of course, have his creditors.^ Agreements between husband and wife mio-ht vary the principle. If a husband improves his wife's land without any agreement for compensation, he cannot bring in a claim after her death to be enforced, either against her estate or her heirs.^ But where a husband, borrowing money on the security of his wife's lands, lays the money out in im- provements thereon with her manifest approval, equity will relieve him from liability for repayment of the principal, while as a tenant by the curtesy he would be bound to keep down the interest.^ The husband, too, is bound to bury his deceased wife in a 1 Warren v. Jennison, 6 Gray, 559. But see 2 Story Eq. Juris. § 1023 ; Pitt V. Pitt, 1 Turn. & Russ. 180; Shrewsbury v. Shrewsbury, 1 Ves. Jr. 233; Jen- ness V. Robinson, 10 N. H. 218. 2 1 Roper Hus. & Wife, 54; Campion v. Colton, 17 Ves. 264 ; 1 Washb. Real Prop. 281. » Burleigli v. Coffin, 2 Fost. 118 ; Wliite v. Hildreth, 32 Vt. 2G5. And see Washburn v. Sproat, 16 Mass. 449. * Lichty V. liager, 13 Penn. St. 565; Robinson v. Huffman, 15 B. Monr. 80 ; Corning r. Fowler, 24 Iowa, 584; Knott v. Carpenter, 3 Head, 542; Barto's Appeal, 55 Penn. St. 386. 5 Webster v. Hildretli, 33 Vt. 457. « Hauford v. Bockee, 5 C. E. Green, 101 ; Kirby v. Bruns, 45 Mis. 234. [171] * 166 HUSBAND AXD WIFE. suitable manner ; that is to sa)^, he is bound to defray all necessary funeral expenses.^ Even when a wife dies who had been living separate from her husband, it is held that her surviving husband must provide her with a funeral at a rea- sonable expense ; and, if he neglects to do so, any person who voluntarily employs an undertaker for that purpose and pays him for his services, is entitled to recover the sum thus ex- pended from the husband in an action at law.^ So, too, where the wife died during the absence of her husband abroad, so that it was necessary for another to superintend the funeral.^ And it is held that even an infant husband may contract for the interment of his deceased wife, or lawful children, so as to be bound by his contract. The contract will have validity, because it is a contract for the burial of those who are * 167 personce * eonjunctce with him by reason of the mar- riage, and as such it is to be regarded as a contract for his own personal benefit.^ These points were decided in England ; and the subject seems to have received little attention in the courts of this country. But it is believed that a similar rule prevails in most, if not all of the States, except so far as modijBed by the divorce laws. And in recognition of the husband's para- mount right in matters relative to his wife's burial, it is held in Massachusetts, that a husband who has interred his wife in a pubhc burial-ground is not liable as a trespasser for removing a grave-stone, smce placed at her grave by her mother, without injuring the stone, and for the purpose of substituting another.^ Certainly where separation took place under circumstances which should render the husband liable for his wife's subsequent support, he is liable for her neces- sary funeral and burial expenses also.^ 1 Macq. Hus. & Wife, 191. 2 Ambrose v. Keuison, 4 I"]. L. & Eq. 361 ; Bradshaw i-. Beard, 12 C. B. n. s. 344. 3 Jenkins v. Tucker, 1 H. Bl. 90. < Chappie V. Cooper, 13 M. & W. 252. 5 Durell V. Hay ward, 9 Gray, 248. 6 Cunningliam v. Reardon, 98 Mass. 538. In Corley v. Green, 12 Ailen, 104, a liusband is allowed to reclaim a note, as against her administrator, where it appears that he did not mean to part with the title, but only gave it to her for collection that she might use the proceeds for her support. [172] i EFFECT OF WIFE'S DECEASE. * 167 The husband's liability for his wife's debts dum sola, ceases at her death. His liability for her necessaries, and upon contracts in sreneral which she had made as his aeent durino- her life, does not so terminate ; for they are his contracts and not hers. And it is held that where the husband, during coverture, pays the debt of his Mife, contracted chon sola, in a specific article, and the title to that article fails, he remains liable for its value, notwithstanding his wife died in the mean time, and the title failed by reason of her unex- pected death.i But, on the other hand, the husband of one who inherited personal property from a grantor who had con- veyed land witli covenants of warranty cannot be held liable after her death for a breach of the covenant.^ 1 Crawford v. Verry, 12 Ind. 427. And see Martin v. Foster, 38 Ala. 688. 2 Howes V. Bigelow, 13 Mass. 384. See remarks of Parker, C J., in ib. [173] * 168 HUSBAND AND WIFE. *168 * CHAPTER VIII. COMMOxN-LAW RIGHTS AND DISABILITIES OF THE WIFE ON HER husband's DECEASE. On the dissolution of a marriage by the death of the hus- band, the widow is usually selected to administer upon his estate, provided she be willing and competent to take the trust. But her right of administration on her husband's estate is not coextensive with that of the husband on her estate. For in the one instance the husband is to be pre- ferred to all others ; whereas in the other, administration may be granted by the court at discretion, either to the widow alone, or to the next of kin, or to both together.^ This is the law in England, and the same prevails generally in this country, under the statutes of the diiferent States.^ The difference which the law makes as to their resj)ective rights may help explain wdiy the right of the wife to administer should be less than that of the husband. Under the English statute of distributions, 22 & 23 Car. II. c. 10, the widow surviving her husband, who deceased intes- tate, is entitled to one-third of the personal property wdiich remains after payment of the husband's debts, while the re- maining tw^o-thirds go to the children or their representa- tives.'^ The widow's share is not unfrequently termed her 1 Fawtrv v. Fawtry, 1 Salk. 36 ; 11 Vln. Abr. 92 ; Anon., Stra. 552; Lovelas, 3 ; Macq. Hus. & Wife, 145 ; Case of Williams, 3 Hag. Ecc. 217. See Goods of Ihler, L. R. 3 P. & D. 50, as to right of a widow having lived separate from her Imsband to administer. - 2 Kent Com. 410, 411, and notes. But by the New York statutes (vol. 2, p. 74, Rev. Stats.), the widow and next of kin are designated. Grant of admin- istration revoked, where it appeared that the marriage under which E. claimed to be widow was void. O'Gara v. Eisenlohr, 38 N. Y. 296. 3 2 Bl. Com. 515, 516. [174] EIGHTS AND DISABILITIES OF WIFE. * 168 " thirds," or incorrectly her " thirds of personal estate at common law." ^ The statute further provides that when the husband dies intestate, leaving a widow only and no lineal descendant, the widow * is entitled to a moiety, or * 169 half of his personal estate, and the other half goes to the husband's next of kin. When there are no next of kin, the widow is not entitled to the whole of her husband's per- sonal estate ; but one-half belongs to her, and the other half goes to the crown.^ Here, too, the wife's right is not coequal with that of her husband ; for he surviving her takes the whole of her personal estate, while she surviving him cannot in any event be entitled to more than one-half of his personal estate, even though the estate consisted wholly of property which belonged to her before marriage. It is held, that the widow of a deceased child cannot take as a representative of such child under the statutes of distributions.^ The husl)and and wife, by a marriage settlement, may exclude one another from all benefits by way of distribution in their respective estates, other provisions having been substituted by way of recompense.^ In this country the statute of Charles II. is at the basis of our legislation regarding the estates of intestates, though modifications are frequently to be met with. Thus in Ver- mont, if there be no issue, the widow takes the whole estate, if not exceeding two thousand dollars, and one-half of the residue above that sum. In Massachusetts, if there be no issue, the widow takes the residue to the amount of five thousand dollars, and one-half of the excess above ten thou- sand dollars. In New York, there are statute provisions on the general sul)ject of distribution quite full and minute. If no descendant or parent survive the husband, the widow 1 See Lord Cottenham, in Gurley v. Gurley, 8 CI. & Fin. 741 ; ^Lacq. IIus. & Wife, 146. 2 2 Bl. Com. 515, 516; 2 Kent Cora. 427 ; Cave v. Roberts, 8 Sim. 214. In certain localities of England a different rule prevails as to distribution of the estates of intestates, the statute of distribution permitting the local customs to continue in force ; as in the city of London and Provinces of York. 2 Bl. Cora. 518. 3 Price V. Strange, 6 Madd. 161. * Earl of Buckiughamshire v. Drury, 2 Eden, 60. [175] * 169 HUSBAND AND WIFE. takes two thousand dollars and one-half of the surplus. But if there be no next of kin to the intestate, as near as * 170 nephew or niece, she takes the whole surplus. * In Maryland, the widow takes, as under the common law at the time of its colonization, her " reasonable share," which is one-third or one-half, according to circumstances. In Pennsylvania, the laAv gives the same rights, so far as regards the widow and general kindred, as prevails in England under the statute of distributions. In Ohio, the widow takes the entire personal estate after the delfts are paid, if there be no children; and if there are any, she takes one-half if the estate amounts only to four hundred dollars ; and if it exceeds that sum she takes one-third of the surplus. In Indiana, some- thing like the community system in this respect has been lately adopted. In Georgia, the widow's share in her intes- tate husband's personal estate is affected by her election to take dower. Where there is no widow or kindred, the State generally claims the balance under the statutory provisions, as in England ; but if there be a widow, it is common in this country to give her the whole surplus in default of the husband's kindred ; while it is moreover apparent, from the foregoing statute provisions, that American legislation strongly favors the widow a^ against distant kindred of the intestate.^ It is held that a bequest to the wife by the husband, in full of her legal claims, is no bar to her right to a distributive share in a lapsed bequest.^ So acts of the husband during his lifetime, committed for the purpose of defrauding the wife of her distributive share in his personal estate after his decease, have been set aside in equit3^ Thus in Maryland, in a case where it appeared that the husband with such design had turned his personal into real estate, and had then executed conveyances of the real estate to other parties, while retaining the title-deeds in his own hands and keeping in possession of 1 See 2 Kent Com. 11th ed. 427, 428, and notes. And see Dobson v. Dobson, 80 Iowa, 410 ; Sullivan v. McGowen, 33 Ind. 189. 2 Garthshore v. Chalie, 10 Ves. Jr. 1. But see Wright v. Fearis, 3 Swanst. 181. [176] RIGHTS AND DISABILITIES OF WIFE. * 170 the premises, the conveyances were set aside after his deatli as a fraud upon his wife's lawful rights.^ The wife's privilege is carried even farther in Massa- chusetts, *' by a statute which permits the widow to * 171 waive a provision made for her by her husband's will, and thereupon to take such portion as the law would have given her had he died intestate. But this privilege is accorded with some restrictions as to the full amount to he allowed her.2 And it is to be inferred that the right of election is personal to herself, and cannot be exercised by her represent- atives after her death. Another liberal provision made by the legislatures of some American States is that known as the widoAv's allowance. This is a reasonable sum, such as the Court of Probate may order, as necessaries to the widow for herself and the famil}^, or, if there be no widow, to the minor children. The allow- ance is set apart as something superior to the claims of general creditors, and is even preferred to the expenses of administration, funeral and last illness of the husband. The amount is at the discretion of the court, and where the hus- band has died insolvent, leaving few assets, it is not uncom- mon for the whole of the personal property to be thus awarded to the widow, whereby is afforded an expeditious means of settling perplexing little estates. This right is treated in Massachusetts as personal to the widow, provided she survive her husband ; it does not pass to her representatives.'^ Nor is it considered in the same light as a distributive share ; but the amount, if allowed, is generally to be regulated accord- ing to the necessitous circumstances of the widow and her family.* 1 Hays V. Henry, 1 Md. Ch. 387. - Mass. Stats. 1861, c. 104; Firth v. Denny, 2 Allen, 4(58; Towle r. Swasey, lOG Mass. 100. Similar statutes are in force in other States. VVliite i'. Dance, 63 I I. 413 ; Stockton v. Wooley, 20 Ohio St. 184. ^ Otherwise in Indiana. Bratney v. Curry, 33 Ind. 399. * Mass. Gen. Sts. c. 96, §§ 4, 5. See Hollenbeck v. Tixley, 3 Gray, 621 ; Brazer v. Dean, 15 Mass. 183 ; Adams v. Adams, 10 Met. 170 ; Smith's Prob. Pract. (Mass.) 106-109 ; Sherman v. Sherman, 21 Ohio St. 631. In Illinois, even a rich widow may claim the allowance. Strawn v. Strawn, 53 111. 203. See Brooks V. Martin, 43 Ala. 360, as to allowance of a " work horse." 12 [ 177 ] * 171 HUSBAND AND WIFE. The widow's paraphernalia is a species of property recog- nized at the common law, though borrowed from the civilians. It consists of such articles of wearing apparel, personal orna- ment, and personal convenience as are suitable to a wife's rank and degree, and such as she continued to use during the marriage.^ The term paraphey-naUa is derived from the Greeks, and transmitted to England through the civil * 172 law. But while the wife's * paraphernalia at the civil law resembled what we call the wife's separate prop- erty, the word itself has a more limited signification in Eng- land and America, being confined to personal necessaries or ornaments, and having no possible application to real estate. Blackstone says the word signified " something over and above her dower ; " whereas, as a late English writer ob- serves, it really meant something of her own, not surrendered by her at her marriage ; something reserved and kept back from the dos, or fortune, which she brought her husband.^ The common-law doctrine of paraphernalia is this : that the suitable ornaments and wearing apparel of a married woman, which she had at the time of her marriage, or which come to her through her husband before or during coverture, remain his personal property during his life, and he may sell and dis- pose of them during his life ; but such as remain at the time of his death belong thenceforth to her absolutely as her para- phernalia? It seems that he may even give them away while coverture lasts, in the exercise of his marital rights. But he certainly cannot bequeath them from his wife ; nor on princi- ple dispose of them as donatio causa mortis.'^ Paraphernalia are therefore to be distinguished from the wife's separate property, as we shall jjresently see, inasmuch as her rights are perfected, only when she becomes a widow, while the property is alienable not by herself, but by her 1 2 Bl. Com. 436 ; Macq. Hus. & Wife, 147. 2 Macq. Hus. & Wife, 152. Our writers sometimes make confusion by citing ma.xims of Roman law in definition of English doctrines. See 2 Eoper Hus. & Wife, 140; 1 Bright Hus. & "Wife, 286, n. 3 Tipping V. Tipping, 1 P. Wms. 730 ; 1 Rolle, 911, L. 35 ; Com. Dig. Baron & Feme, Paraphernalia ; Macq. Hus. & Wife, 147, 148 ; State v. Hays, 21 Ind. 288. See Rawson v. Pennsylvania R. R. Co., 48 N. Y. 212. * 2 Bl. Com. 436 ; Noye's Max. ch. 49. [178] EIGHTS AND DISABILITIES OF WIFE. * 172 husband, during his life.^ Such gifts from the husband are further to be distinguished from gifts bestowed solely upon the wife by her father, or b}^ a relative, or even by a stranger. For in the latter instance they would be deemed gifts to her separate use ; and *theii, if received with the * 173 husband's consent, neither he nor his creditors could afterwards dispose of them.^ Mere ornaments for a parlor are not to be treated as para- phernal property ,-5 Nor can articles be claimed as such which are, in fact, heirlooms.^ But a gold watch worn liy the wife of one who maintains a fair social position may be treated as paraphernal.^ A " necessary bed " is paraphernal.^ Jewels purchased by the husband and worn by the wife with her other ornaments, it is said, become her j)Ciraphernalia in ab- sence of evidence to the contrary ; while family jewels by merely being worn by the wife do not.' Where a piece of jewelr}^ in possession of the husband at the time of marriage as an heirloom, is greatly enhanced in value by adding new diamonds, and is then given the wife to wear, though be- queathed to his heirs, the rule, as laid down by Lord Chan- cellor Macclesfield, is to separate the new diamonds after the husband's death, and bestow them upon the widow as her paraphernalia, leaving the heirs to enjoy the residue.^ And the old books say that if the husljand delivers cloth to his wife for her apparel, and dies before it is made up, she shall have the cloth.^ The question of value is not material in setting off the widow's paraphernalia, so long as the articles are suitable to her degree.^*' And while the modern cases which turn on such questions are rare, especially in this country, it cannot be doubted that a liberal rule would at this day be apj)lied in the widow's favor. • Cro. Car. 341 ; Com. Dig. Baron & Feme, Parapliernalia. 2 2 Story Eq. Juris. 555. * Graham v. Londonderry, 3 Atk. 393. 4 Calmady v. Calmady, 11 Vin. Abr. 181, 182. 5 TUexan v. Wilson, 43 Me. 186. 6 See Com. Dig. Baron & Feme, Paraphernalia. "^ Jervoise v. Jervoise, 17 Beav. 56G. 8 Calmady ;;. Calmady, 11 Vin. Abr. 181, 182. 9 1 Rolle, 911, L. 35; Com. Dig. Baron & Feme, Paraphernalia. 10 lb. ; Macq. Hus. & Wife, 148. [ 17 We have already observed that a wife may join with her husband in executing a mortgage of her real estate as security for his debts, and that, if this mortgage be properly fore- closed, and equities of redemption barred, her right to the real estate is gone.^ Yet the courts have gone as far as they consistently could in upholding the wife's title under such circumstances. In the first place, they favor her right to the equity of redemption as against her husband ; in the second place, they allow exoneration or reimbursement from her hus- band's estate, after his death, where the assets prove sufficient for that purpose. In general, therefore, it is ruled in courts of equity, that the equity of redemption remains in the wife and her heirs. Accordingly, when the marriage is dissolved by the death of the husband, the widow, or her heirs after her, may put this equity in operation. It must therefore be quite manifest that a change of j)roperty was intended during the hus- * 177 band's life before * his widow can be excluded.^ Thus, where an estate belonging to the wife was mortgaged, 1 Note by Mr. Jacob to 2 Roper Hus. & Wife, 145. *2 2 Bl. Com. 436, supra. s Marshall v. Blew, 2 Atk. 217; In re Hewson, 23 E. L. & Eq. 283. * Grigsby v. Breckenridge, 2 Bush, 480. 5 See last chapter. « Macq. Hus. & Wife, 172. [ 182 ] 1 RIGHTS AND DISABILITIES OF WIFE. * 177 and the equity of redemption was in words reserved to the husband and his heirs, the court held that there was never- theless a resulting trust for the wife and her heirs.^ And the rule is general that where husband and wife mortgage the wife's estate, and the equity of redemption is reserved to the husband and his heirs, without recital of special circum- stances to show an intention to make a new settlement of the estate, the husband has the equity of redemption only jure uxoris? And in considering this question the mere form of the reservation of the equity of redemption will not of itself be held sufficient to alter the previous title. In such a case (where fraud is out of the question) it is supposed to arise from inaccuracy or mistake, which is to be explained and cor- rected by the state of the title as it was before the mort-- gage. 3 But in the leading English case of Jackson v. Lines ^ which came before the House of Peers, on appeal from the decree of Lord Eldon, in the Court of Chancery, the rule in the wife's favor was limited at this point. And it was decided, after a full examination of the previous cases on the subject, that wherever the transaction, importing more than a mere mort- gage security, gives satisfactory evidence of an intention to effect a change of the beneficial interest, the husband and his heirs, and not the widow or her heirs, will be entitled to the equity of redemption.* The learned opinion in this case was given by Lord Redesdale, and Lord Eldon subsequently admitted his own error in laying down a contrary doctrine. This case has since remained as the correct exposition of the English law on this subject. And it may be added, in the emphatic language of Lord Eldon on another occasion, " If it clearly appear to have * been the intention of * 178 the wife that the husband should have the equity of redemption, he 7nust have it." ^ 1 Jackson v. Jones, 1 Bli. 115. 2 Kuscombe v. Hare, G Uow, 1. •I Per Lord Redesdale, in Jackson v. Innes, 1 Bli. 115. * lb. See also Sir John Leach, in Reeve v. Hicks, 2 Sim. & Stn. 40,3. * Ruscombe v. Hare, 6 Dow, I. It is said that the case of Jackson v. Innes is the only marked instance in which a judgment of Lord Eldon's was ever reversed. And the generous candor with which the learned hiwyer admitted his [ 183 ] * 178 HUSBAND AND WIFE. To the wife also belongs the right in equity to have her es- tate exonerated out of her husband's personal and real assets. This is known as the wife's equity of exoneration. The prin- ciple is that the wife, when mortgaging her property for her husband's debt, stands in the position of a surety, and there- fore may claim indemnity from the principal for whose benefit her security was interposed. ^ Lord Hardwicke has announced this rule with clearness and precision.^ The husband's other creditors have no preference over the wife on marshalling the assets of her husband's estate ; but she is entitled to the benefit of any securities, and to have satisfaction of her debt according to its rank. But the widow may waive her right of exoneration from the estate of her deceased husband, and her waiver will be inferred from circumstances.^ In this country, as we have seen, the wife is regarded as her husband's surety, and the presumptions are in her favor.^ The rule as to her equity of redemption is doubtless quite as liberal as that laid down by Lord Redesdale in England. Perhaps it is more so, but authoritative cases on this point are wanting, and recent statutes affect the whole subject. In New York, the widow's right of exoneration is ex- * 179 pressly admitted.^ * And in other States, the wife's rights as surety, with reference to debts of her late husband, for which she has mortgaged her land, are very strongly favored.^ Controversies between a widow and her husband's adminis- error serves as a memorable example to the courts of successive generations. To Lord Redesdale, whose politics kept him in comparative seclusion most of his life, though his professional reputation was great in his day, a most appropri- ate tribute is paid by Mr. Macqueen, in his excellent treatise, p. 180, note. 1 Macq. Hus. & Wife, 181 ; Bell Hus. & Wife, 195 ; Wotton v. Hele, 2 Saund. 177 ; 1 Mod. 290. 2 Robinson v. Gee, 1 Ves. Sen. 252, per Lord Hardwicke ; Parteriche v. Pow- let, 2 Atk. f584 ; and see Lord Thurlow, in Clinton v. Hooper, 1 Ves. Jr. 186, to the same effect. 3 Bell Hus. & Wife, 195 ; Clinton v. Hooper, 1 Ves. Jr. 188. But see Lancas- ter V. Evors, 10 Beav. 154. * See supra, p. 155. ^ Vartie i: Underwood, 18 Barb. 561. « Philbrook v. McEwen, 29 Ind. 347 ; Hetherington v. Hixon, 46 Ala. 297. [184] 4 RIGHTS AND DISABILITIES OF WIFE. * 179 trator are not unfrequent ; and it is manifest that at the com- mon law the widow's situation with reference to personal prop- erty, which she had brought with her into the marriage state, was often extremely hard. Thus, it is even held that a widow cannot recover from her husband's administrator goods which came to her as a wife, although her husband abandoned her before she received them, and never returned or claimed them, and she had held and claimed them as her own for more than twenty years.^ But equity protects restrictions imposed on trust funds for her benefit, even as against her own indiscreet conduct.^ And instances are not wanting where a widow's hasty, inconsiderate, and foolish acts with reference to prop- erty rights acquired by her in her deceased husband's estate have been deemed inoperative ; her distributive share and allowances being preserved for her by the courts as against herself, so to speak.^ A widow must not intermeddle with her late husband's estate, nor assume duties which properly devolve upon the executor or administrator. Hence a widow cannot surrender an unexpired lease held by her husband, and take another lease in her own name ; for manifestly the lease should go to the benefit of the estate as assets.* She is bound by a bona fide administrator's sale, made with her con- sent.^ And, when administratrix herself of her husband's estate, she is expected to enjoy the usual rights and assume the usual responsibilities pertaining to the office. "^ The common-law obligation of the widow to bury her de- ceased husband rests upon weaker foundations than the corresponding obligation of the husband. In truth it seems somewhat inconsistent witli the doctrine of coverture ; for why, it may be asked, should a woman answer for the indi- gence of one whose lawful privilege it was to strip her of her own means of support ? Where the husband leaves an estate, 1 Bell V. Bell, 37 Ala. 536. * Dunn V. Lancaster, 4 Bush, 581. 3 See MauU v. Vaughn, 45 Ala. 134 ; Cammack v. Lewis, 15 Wall. 643. * Keating v. Condon, 68 Penn. St. 75. And see Leach v. Prebster, 35 Ind. 415. 5 Anderson v. McGowan, 45 Ala. 462. « See Ready v. Hamm, 46 Miss. 422 ; Fox v. Doherty, 30 Iowa, 334. [185] * 179 HUSBAND AND TVITE. the funeral expenses are to be paid by his executor or adminis- trator, and not by his widow. This is the rule both in Eng- land and America ; and it is doubtless reasonable so far as it goes.^ But in an English case, decided not many years ago, the court seemed to regard this subject somewhat differently, and intimated that husband and wife should stand upon a like footing, as regards the obligation of burying one another.^ Here a widow, who was also an infant, was held bound by her contract for the expense of her husband's interment. The decision proceeded upon the ingenious doctrine, that, since a husband ought to bury his wife and lawful children, who are the personce conjunctce with him, as a matter of personal bene- fit to himself, the wife should do the same by her husband, as a benefit and comfort to herself; and therefore that the case comes within the rule of law which makes a contract good where the infant is a gainer by it.^ Where a married woman contracts with authority from her husband and the husband dies suddenly, and in point of fact before certain purchases were made on his credit, is his estate liable, or is liis widow; or must the creditor bear the loss? The general rule undoubtedly is that the authority of an attorney or agent expires with the principal. A dead man can have no one acting by his name and authority. And since the wife contracts only as her husband's agent at * 180 the common * law, her case would seem to fall within the general doctrine. Such in fact was the ruling of the court in Blades v. Free^ where a man who had some years cohabited with a woman, who passed as his wife, left her and her family in England, and went into foreign parts, where he died.^ Here it was held that the executor was not bound to pay for necessaries supplied to her after his death, although before information of the event had reached her. In this case, however, there was only a quasi widow, and perhaps the court felt the stigma of an illicit cohabitation. But the precedent proved a stumbling-block in the next case of Smout 1 2 Redf. Wills, 224 ; 2 Wms. Ex'rs, 871 ; Macq. Hus. & Wife, 183. 2 Chappie V. Cooper, 13 M. & W. 252. » 9 B. & Cr. 167 ; 4 Man. & Ry. 282. [186] RIGHTS AND DISABILITIES OF WIFE. * 180 V. Ilherry} A man who has been m the habit of dealing with a butcher for meat supplied to his house, went abroad, and his wife, who remained at home, continued the employment of the butcher. Here it was held that she was not personally liable for meat supplied after her husband's death, and pur- chased by her in good faith, supposing him to be still alive. The principle of the latter case seems to have been, that, although the authority had expired, yet the agent was not in fault, nor in the commission of any fraud ; that the revocation occurred by act of God. But the loss had to fall somewhere ; so the court put it upon the butcher. These seem to lie the only cases of importance on this subject in England ; and we find none in this country to shed further light. Yet questions of this sort must frequently arise in the dealings of people. The modern inclination is clearly to relax somewhat the rigid rule of the common law of agency and to favor the Roman doctrine, which binds the principal or his estate in respect to acts done in good faith by his agent before notice of revoca- tion. ^ * It is held that where family necessaries are pur- * 181 chased and brought into the house during the last ill- ness of the husband, and are used in part while he is sick and in part at his funeral, his estate is liable to the person who furnished them.^ For necessaries furnished the family while the husband was living, too, under circumstances rendermg him legally liable, the wife cannot be sued after his death ; and even if she then promise to pay them, the promise is without consideration and not binding upon her."* 1 10 M. & W. 1. 2 Story Agency, §§ 488, 497, and notes, in last edition. See Bradford, Surro- gate of New York city, in Ginochio v. Porcella, 3 Bradf. Sur. 277, in wliicli this subject is ably discussed, though the case in question, upon a close examination, appears to have decided little or nothing. Tiiis able lawyer evidently leans against the authority of Blades v. Free, though he expresses himself very guardedly. See also Macq. Hus. & Wife, 129, to the same purport. And see Terry's Appeal, 55 Penn. St. 344. But a bond gfven by a husband for the board and expenses of his wife at a hospital is terminated by his death. Stinson V. Prescott, 15 Gray, 335. The question of notice does not appear to have arisen in this case, and in fact the wife was not treated as her husband's agent, in the usual sense. * SterUng v. Potts, 2 South, 773. 4 Smith V. Allen, 1 Lans. 101 ; Carter v. Wann, 45 Ala. 343. [187] * 181 HUSBAND AND WIFE. \VTiere a widow after her husband's death carries on his business with his tools and material, having taken out admin- istration, she will be presumed to manage it for the benefit of his estate rather than in her personal capacity ; and she should sue and be sued accordingly. ^ 1 Moseley v. Rendell, L. R. 6 Q. B. 346. [188] WIFE'S DOWER AND HOMESTEAD RIGHTS. * 182 * CHAPTER IX. *182 THE wife's DOWER AND HOMESTEAD RIGHTS. While marriage impresses at once the personal property of the wife with a new title, — namely, that of her husband, — the personal property of the husband remains unaffected thereby. He may buy, sell, and dispose of his own goods and chattels after marriage as before, without let or hindrance from his wife. She cannot be said to acquire a title to his general personal property, actual or potential (independent of a gift or settlement), until her coverture has terminated. Then her rights are rather those of a widow than of a wife. But as to the husband's real estate, which in old times was the only property regarded at law as really of much consequence, the rule has always been otherwise. The husband's possible Tife-interest attached to the wife's lands whenever acquired by her; the wife's possible life-interest to the husband's lands whenever acquired by him. The husband's estate was known as curtesy, the wife's as dower. These estates had not, per- haps, the same origin : they certainl}^ had not, in all respects, the same incidents ; but both rights were known in England from a very early period, and both have remained with very little change down to a recent date in England and America. Each estate is in the nature of a possible encumbrance, and conveyancers seek to get rid of it whenever the owner of lands wishes to pass the title in fee to another. Dower, to be sure, gave the widow only a life-interest to the extent of one- third, while curtesy gave the surviving husband the full life- interest. But on the other hand, dower became absolute in the widow when she outlived her husband, while curt- esy, as we have seen, never * attached at all unless the * 183 husband outlived his wife and was fortunate enough to have had a child by her besides. So that in these respects the rights of husband and wife, on the whole, if not equiv- [189] * 183 HUSBAND AND WIFE. alent, were nearly so. And as the reader may have already inferred, the general rule as to descent of real estate has been that, subject to the widow's dower, the lands of a husband descend to his own heirs ; while subject to the surviving husband's curtesy, the lands of a wife descend to her own heirs ; our policy being to preserve real estate in the famil}^, so to speak, of the respective parties to a marriage in default of issue capable of inheriting from both.^ Dower is to be defined as that provision which the law makes for a widow out of the lands or tenements of her hus- band.2 j^ jg g^^jj^ ^q ]jq given for her support and the nurture of her children ; but it applies, in fact, whenever she is the survivor, without reference to her actual circumstances as to means of support or the burden of a famil}^ Dower extends to all estates of inheritance which the husband has held at any period of the coverture in his own right, and which any issue of hers might, if born, possibly inherit. The word dower is of ancient origin, and seems to come from the word dos at the civil law, whicli, however, signified something quite different, and more nearly approaching what we express by the term doAvry. Whether the custom of dower was introduced into England by the Saxons, or came over with tlie Normans, is a disputed question ; but it was clearly established at or before the reign of Henry III. An early writer remarks that " tenant in dower is so much fa- vored as that it is the coiiimon byword of the law that the law favoreth three things: life, liberty, dower." ^ But these three things do not seem to have kept an equal pace in the march of civilization. There were various kinds of dower at the English law, one only of which — namely, dower at common law — is in use in this country. Dower at common law extends to one-third of the husband's real estate, and is often known as the " widow's thirds," though of course inapplicable in this sense 1 See 1 Washb. Real Prop. 127. 147; Jenks v. Langdon, 21 Ohio St. 362. 2 Co. Litt. 80 a; 2 Bl. Com. 130; 1 Washb. Real Prop. 146. 8 Bac. Law Tracts, 331. See 1 Washb. Real Prop. 147 ; Wright Ten. 191 ; Co. 2(1 Inst. 16 ; 2 Bl. Com. 129 ; 1 Cruise Dig. 162. [ l^'O ] I WIFE'S DOWER AND HOMESTEAD RIGHTS. * 183 to her distributive share of personal property. Ancient cus- toms varied the proportion somewhat in England; thus gav- elkind gave one-half instead of one-third, and was limited to widowhood. The other species of dower were abol- ished by statute in England * in the time of Charles * 184 II., after having previously fallen into general disuse.^ The magna charta of Henry III., which established and defined the rule of dower for future guidance, besides reliev- ing the widow of certain burdens imposed upon heirs at the feudal law, distinctly set forth the proportion of which she should be endowed in her husband's lands, and further pro- vided that she might tarry forty days after her husband's death in her husband's house .^ This last privilege has been since known as the widow's quarantine^ and has been recog- nized by statute law in some of the United States.^ It was designed manifestly as something preliminary to the assign- ment of dower. Dower attaches to all lands, tenements, or hereditaments, coriDoreal and incorporeal, of which the husband may have been seised in fee or in tail.'* But the husband's estate must have been one of inheritance, since the wife's estate is said to be a mere continuance of the estate of her husband. Very nice questions have arisen as to what constitutes an estate of inheritance. Thus where a husband has a life-estate with fee-simple in the heirs of his body, his wife cannot claim dower.^ Nor can she claim, even though he holds an estate for another's life, and dies before the cestui que vie.^ The three essentials of dower nearly correspond with those of curtes}^ : birth of issue, as we have said, not being requi- site. They are marriage, seisin of the husband, and his death. But a careful comparison of the two estates at the 1 Stat. 12 Car. 2, c. 24. See 1 Waslib. Real Prop. 149, and 2 Bl. Com. 133, as to tliese ancient kinds of dower ; dower ad ostium ecclesia:, dower ex assensa patris, and dower dc la ]>lus belle. 2 2 El. Com. 135. 3 Mass. Gen. Stats, c. 96, §§ 4, 5 ; Wiialey v. Whaley, 50 Ms. 577 ; Young V. Estes, 69 Me. 441. * 2 Bl. Com. 131 ; 1 Washb. Real Prop. 162. » Burris v. Page, 12 Mis. 358 ; 1 Washb. Real Prop. 152. 6 1 Waslib. Real Prop. 153 ; Park Dower, 48; Gillis v. Brown, 5 Cow. 888 ; Fisher v. Grimes, 1 S. & M. Ch. 107 ; 2 Bl. Com. 129. [ 191 ] * 184 HUSBAND AND WIFE. old law shows some inequalities : thus while the hus- * 185 band might have curtesy in the wife's trust * property, the wife could not claim dower from that of her hus- band. This injustice grew out of an apparent necessity : it was remedied in England by the late dower act, and appar- ently never had a firm foothold in the United States.^ The only essential of dower which calls for especial notice is the second ; for we have elsewhere considered what con- stitutes a marriage ; and as to the death of a husband leaving a widow surviving, it need only be remarked that, recogniz- ing that legal presumption of death which arises from one's absence for seven years without being heard from, our courts sometimes allow dower where the fact of the husband's death cannot be positively established.^ What, then, is that seisin of the husband which entitles his widow to dower in the premises at the common law ? Briefly, then, dower does not attach to a mere reversion or remainder expectant upon a freehold in another, so long as that freehold remains outstanding. And no more could cur- tesy ; the freehold must terminate during marriage, in order that there be a sufficient seisin in the husband to support the dower interest ; in other words, his estate of inheritance must become a vested, not remain an expectant right .^ But, on familiar principles of real-estate law, the intermediate estate being less than a freehold, as a mere lease for years, a seisin of the reversion or remainder in fee will suffice.* A merger of estates so as to unite the inheritance in the husband gives dower ; so dower can be claimed in the estate of a tenant in common, though not, of course, in the estate of one joint-ten- ant who leaves another surviving him ; even to exhaustion in mines owned by the husband which had been opened during his lifetime ; generally in wild lands in our country, at the present day, though perhaps not at the common law ; in 1 1 Washb Real Prop. 163, and cases cited ; stat. 3 & 4 Will. 4, c. 105. - Foulks V. Rhea, 7 Bush, 568. 3 1 Washb. Real Prop. 154, and American cases cited ; 4 Kent Com. 39 ; Eidredge v. Forrestal, 7 Mass. 'J53. * 1 Ld. Rayra. 326 ; Kitchens v. Kitchens, 2 Vern. 408. [ 192 ] WIFE'S DOWER AND HOMESTEAD EIGHTS. * 185 various old-fashioned rights by way of inheritance which are mentioned in the books ; and in general wherever no possi- bility continues interposed to prevent the husband's estate from becoming one of entire inheritance during marriage.^ Since equity impresses land with the fictitious character of personalty, upon coDsideration of the actual circumstances attending its purchase and the purpose for which it is held, it is not always easy to say whether a widow can claim dower in partnership lands.'^^ As to lands given or taken in exchange during her husband's lifetime, the exchange being of obviously equal interests, the rule is not quite clear, though it would seem that the widow will be put to her election between the parcels.^ Of the earlier and later rule concerning the wife's right of dower in her husband's trust property we have just spoken ; and although that right is now very generally recognized in England and America, it is doubtless only coextensive with the husband's beneficial interest in the land ; the rule could not possibly give the widow of a trustee dower in land held by him merely as such and for others, without sanctioning robbery of the beneficiaries.^ Dower in trust property, at the present day, is most frequently considered Avith reference to the foreclosure of mortgages ; and here a court of equit}' applies a most Hberal rule : for while the widow of the mort- gagee cannot claim dower in the mortgaged premises until after foreclosure, the mortgagor's widow not only has every reasonable facility afforded her for discharging the encum- brances upon her husband's death whenever it may enure to her advantage to do so, but may claim dower in the equity of redemption at all events, whether the mortgage was exe- 1 1 Washb. Heal Prop. 157-167; Mayburry l: Erien, 15 Pet. 21; Reynard v. Spence, 4 Beav. 103 ; Park Dow. 58, 72 ; Billings v. Taylor, 1 Pick. 460 ; Ste- vens y. Owen, 25 Me. 94; 4 Kent Com. 40; 2 Bl. Com. 132. See Miller i'. Talley, 48 Mis. 503. '^ Story Partn. §§ 92, 93; 1 Washb. 150, 160; Park Dow. 106; Duhring v. Duhring, 20 Mis. 174; Hawley v. James, 5 Paige, 451 ; Smith v. Smith, 5 Ves. 189. » 1 Washb. 158 ; Mosher v. Mosher, 32 Me. 412 ; Stevens v. Smith, 4 J. J. Marsh. 64. * See Hill Trustees, 269 ; Cooper v. Whitney, 3 Hill, 97 ; Bartlett i-. Gonge, 5 B. Monr. 162, 13 [ 193 ] * 185 HUSBAND AND WIFE. cnted before or after marriage, and upon foreclosure and sale of the premises for breach of condition have her interest pro- tected in the distribution of the proceeds.^ The husband's seisin, therefore, was not, even at common law, necessarily one in fact or an actual seisin ; to support the wife's dower, it was enough that he had a seisin in law, with a right to an immediate seisin in fact. His seisin might not be an indefeasible one, yet her claim was good so long as it Avas not actually defeated.^ A momentary seisin is enough; as in the old case where a father and son were hanged together, and the latter being seen to struggle longer than the former, was decided to have inherited the land from his father as he swung, so as to give to his own widow a right of d'ower therein.^ But the seisin though momentary should be bona fide and beneficial, and not by way of conduit merely, as where one purchases with a simultaneous reconveyance to secure the purchase-money.* Not only is the attempt of a husband to defraud his wife of her dower interest in his lands readily frustrated in the courts, but the widow now very gen- erally finds her claim sufficiently supported by a mere right of entry in the husband.^ That equitable seisin which now sup- ports dower in trust estates corresponds substantially to the legal seisin,^ Dower may be barred in various ways. The wife's elope- ment, followed by adultery, was made a cause of forfeiture by 1 1 Washb. Real Prop. 164, 165 ; 4 Kent Com. 43, 46 ; Curren v. Driver, 33 Ind. 480 ; Sargeant v. Fuller, 105 Mass. 119 ; Pickett v. Buckner, 45 Miss. 226 ; Hart V. Logan, 49 Mis. 47 ; Irvine v. Armistead, 46 Ala. 863; Peckham r. Had- wen, 8 R. I. 160 ; State Bank v. Hinton, 21 Ohio St. 509. As to several mortgages in some of which the wife has not released dower, see Sheldon v. Patterson, 55 III. 507. As to dower in land patents, see Johnson V. Parcels, 48 Mis. 549. ^ 2 Bl. Com. 130, 131 ; 1 Washb. 173-175; Atwood v. Atwood, 22 Pick. 283 ; Dunham v. Osborne, 1 Paige, 635; Whithead v. Mallory, 4 Cusli. 138; Butler V. Cheatham, 8 Bush, 598. 3 Cro. Eliz. 503 ; 2 Bl. Com. 132 ; 4 Kent Com. 39 ; Wheatley v. Calhoun, 12 Leigh, 264. * See Slaughter v. Culj)epper, 44 Geo. 319 ; Pendleton v. Pomeroy, 4 Allen, 510. * Act 3 & 4 Will. 4, c. 105 ; 1 Washb. Real Prop. 174, and ;i. ; Baker v. Chase, 6 Hill, 482 ; Emerson v. Harris, 6 Met. 475. •> See further, as to equitable estates, 2 P. Wms. 715; 4 Bro. C. C. 521; Robinson i;. Miller, 2 B. Monr. 284 ; 1 Washb. Real Prop. 182-185. [194 J WIFE'S DOWER AND HOMESTEAD RIGHTS. * 185 an old English statute ; and at this day it is generally enough to add that a divorce from bonds of matrimony procured during the lifetime of the parties puts an end to dower rights, except so far as legislation may save it. The American policy is appar- ently to make the wife's misconduct the ground of forfeiture under the divorce laws.^ By her own acts sometimes, in the na- ture of an estoppel ; by lapse of time ; by a judicial sale ; by the defeat of her husband's defeasible title ; by her own jointure ; and, perhaps, by an exercise of the right of eminent domain on the part of government, — a wife may be debarred from receiv- ing her dower.^ But usually where the husband means to sell his land, the wife joins him in a conveyance during his life- time, in compliance with certain statute formalities, for the purpose of releasing dower ; and if this be properly done, her title becomes for ever extinguished as against the purchaser and his heirs and assigns.^ The right of a wife to dower becomes complete on the husband's death, leaving her surviving him. Until dower has been assigned her, the position she occupies is a peculiar one ; she has rather a right than an estate ; but the moment dower has been assigned and she enters upon the assigned premises, the freehold is vested in her by virtue and in con- tinuance of her husband's seisin.* Being entitled to a life- third in the lands, an assignment of her portion may be made accordingly; usually by judicial proceedings. But it is at this day quite common for the heirs to pay the widow one- 1 Statute Westminster 2 ; 1 Washb. Real Prop. 196, 258, n.; 4 Kent Com. 53; 1 Cruise Dig. 175; 1 Bish. Mar. & Div. §§ 661, 662; 2 Bl. Com. 130; Coggshall V. Tibbetts, 3 N. H. 41 ; AVoodward i'. Dowse, 10 C. B. n. s. 722; 4 Am. Law Rev. 401. 2 1 Washb. 203-208, 217, 218 ; Carson v. Murray, 3 Paige, 483 ; 4 Kent Com. 70 ; Tisdale v. Risk, 7 Bush, 139 ; Runnells v. Webber, 59 Me. 488 ; Ervin v. Brady, 48 Mis. 560 ; Sheldon v. Bradley, 37 Conn. 324. 3 1 Washb. 200, 201, and cases cited ; Uip v. Campbell, 19 Pcnn. St. 361. See supra, ch. 6, as to wife's conveyances in general. As to effect of wife's release of dower in her husband's fiaudulent conveyance, see 1 Washb. Real Prop. 202. And see Davis v. McDonald, 42 Geo. 205 ; White v. Graves, 107 Mass. 325; Wyman v. Fox, 59 Me. 100; Lockett v. James, 8 Bush, 28. * As to methods and etJect of assignment, see 1 Washb. Real Prop. 222-250 ; Park Dow. 339; 4 Kent Com. 61 ; Jones v. Brewer, 1 Pick. 314; Flaherty v. Sutton, 49 Mis. 583; Shepardson v. Rowland, 28 Wis. 108; Wooster v. Hunts Lyman Iron Co., 38 Conn. 2-56. [195] * 185 HUSBAND AND WIFE. third of the net rents during her natural life where the lands are not to be sold, or else purchase her share outright for a fixed sum, computed according to the annuity tables.^ Manifestly m ancient theory the widow's dower was an independent and valuable interest. But in England, through the medium of trusts and the operation of the doctrine already noticed, the conveyancers for generations have been enabled to defeat this estate. The late English Dower Act, 3 & 4 Will. IV. c. 105, while it places dower and curtesy on a like favorable footing as to trust estates, provides further that no widow shall be entitled to dower " out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his vail." ^ Little, therefore, is left for the law to operate upon ; for the husband, by his independent act, may now extinguish all dower encumbrances whatsoever. Jointures, a species of provision in lieu of dower, are little known at the present day in England ; nor were they ever of much importance in this country.^ While the law of dower has been gradually fading out of sight in England, it attains its fuller development in this country. Curiously enough, most of the modern cases on this subject are x\mer can.'* Our local statutes have very gener- ally favored the widow's rights, and unless she has joined her husband in his conveyances during his life, she may assert the privilege at his death. But dower is found a great incon- venience in an age when real estate passes from hand to hand as an article of commercial traffic ; and legislatures show some 1 Cheney v. Tierce, 38 Vt. 515; Clark v. Tompkins, 1 S. C. n. s. 119; McLaughlin v. McLaughlin, 22 N. J. Eq. 505. 2 Wras. Real Prop. 194 ; 1 Washb. Real Prop. 219 ; Macq. Hus. & Wife, 165. The English dower act went into effect in 1834. See /« re Hall's Estate, L. R. 9 Eq. 179. 3 See Wms. Real Prop. 217, notes ; 1 Washb. Real Prop. 261-274 ; Prather V. McDowell, 8 Bush, 47. The wife is frequently by statute permitted to take a provision under her husband's will, in heu of dower, at her election. See Jennings r. Jennings, 21 Ohio St. 56 ; Richart v. Richart, 30 Iowa, 465; Kent v. Dunham, 106 Mass. 586 ; Kreiser's Appeal, 69 Penn. St. 194. * 1 Washb. Real Prop. 257, 258 ; 2 Crabb Real Prop. 154, 155 ; Hoffman v. Savage, 15 Mass. 130 ; Symmes v. Drew, 21 Pick. 278 ; Childs v. Smith, 1 Md. Ch. 483 ; Crockett v. Crockett, 2 Ohio St. 180 ; Park Dower, 355 ; 1 Washb. Real Prop. 168. [196] WIFE'S DOWER AND HOMESTEAD RIGHTS. * 185 disposition to get rid of it altogether, together -with curtesy. In * New York the widow can only claim * 186 her dower out of lands of which her husband died seised.^ In several States her interest is treated as something for the benefit of herself and children jointly. In others, the " thirds " are dispensed with, and a different rate is fixed. And finally, the State of Indiana has set a good example by abolishing both curtesy and dower, and substituting in behalf of husband and wife an interest in one another's real estate, remaining at decease, on principles analogous to the distribu- tion of personal property of intestates ; thus placing both sexes on the mutual footing of justice, and treating lands and personal estate as subject to analogous rules.^ The homestead may properly be considered in connection with dower ; for although this right is not strictly pei'sonal to married women, inasmuch as it exists for the benefit of both wife and children, it is an encumbrance upon the real estate of the husband which is generally released by the wife in connection with her dower. The homestead system is of recent origin, is peculiar to our American States, and exists for protection against the husband's creditors. The policy on which it rests, by no means a new one in our legislation, is that a householder with a family shall always have a place of shelter where legal process cannot reach him. While open to some serious objections, as concerns the rights of creditors, the homestead system is to be warmly commended in respect of the encouragement it affords to agriculture, and still more as offering rewards for domestic fidelity.^ 1 N. Y. Stats. 1860, March 20. 2 1 Ind. Sts. (1862) 291 et seq. And see 1 Washb. Real Prop. 219, and notes ; 4 Kent Com. 36, and statutory changes in notes. See Tliornton v. Thornton, 45 Ala. 274 ; Barker v. Dayton, 28 Wis. 367 ; Hughes v. Merritt, 67 N. C. 386, construing late statutes ; Sturdevant v. Norris, 30 Iowa, 65. "* See 1 Washb. Real Prop. 3d ed. 325 et scj., where tliis system is detailed. And see Cipperley v. Rhodes, 53 111. 346 ; West v. Ward, 26 Wis. 579 ; Thorns V. Thorns, 45 Miss. 263. [197] * 187 HUSBAND AND WIFE. *187 * CHAPTER X. THE wife's SEPAKATE ESTATE ; ENGLISH DOCTRINE. Emerging from coverture and tlie common law, we come out into the light of equity ; and here all things assume a new aspect. The married woman is no longer buried under legal fictions. She ceases to hold the strange position of a being without an existence, one whose identity is suspended or sunk in the status of her husband ; she becomes a distinct person, with her own property rights and liabilities. Her condition is not as independent as before marriage ; this the very idea of the marriage relation and the disabilities of her sex forbid. But she is dependent only so far as the laws of nature and the forms of society make her so ; while her comparative feeble- ness renders her the special object of chancery protection, whenever the interests of herself and her husband clash to- gether. She may contract on her own behalf; she may sue and be sued in her own name ; she may hold lands, goods, and chattels in her own right, which property is known as the wife's separate estate, or estate limited to the wife's separate use. The doctrine of the wife's separate estate originated in the spreading conviction that it was expedient for the interests of society that means should exist by which, upon marriage, either the parties themselves by contract, or those who in- tended to give bounty to a family, might secure property without that property being subject to the control of the hus- band.i In England, this doctrine was established more than a century ago, and to the equity courts belong the * 188 credit of the invention.^ * While at common law the separate existence of the wife was neither known nor 1 Rennie v. Ritchie, 12 CI. & Fin. 234 ; Peachey Mar. Settl. 259. 2 Harvey v. Harvey, 1 P. Wms. 124 ; Woodmeston v. Walker, 2 R. &M. 205 ; TuUett V. Armstrong, 1 Beav. 21. [ 198 ] WIFE'S SEPARATE ESTATE; ENGLISH DOCTRINE. * 188 contemplated, equity considered that a married woman was capable of possessing property to her own use, independently of her husband ; and the courts gradually widened and de- veloped this principle, until it became fully settled that, liowever the wife's property might be acquired, whether through contract with her husband before marriage, or by gift from him or from any stranger independently of such con- tract, equity would protect it, if duly set apart as her separate estate, no matter though the husband himself must be held as the trustee to support it.^ This great change in the jurisprudence of England was effected by a few great men without any help from the legis- lature. The Court of Chancery in this as in other respects recognized its true function of making the law work justice, by accommodating its operation to the altered circumstances of society .2 Obscure and doubtful indications of the wife's separate estate are found as early as the reign of Queen Elizal)eth. It seems to have been plainly recognized by Lord Nottingham, Lord Somers, and Lord Cowper. In Lord Ilard- wicke's time it was perfectly established ; and Lord Thurlow, in sanctioning the clause against anticipation, prevented the wife herself from destroying the fabric which had been reared for her benefit.^ Where property comes to the wife's separate use, it is treated in equity as trust estate of which she is cestui que trust. Yet it is not actually necessary that the instrument constituting the separate use should itself make an appoint- ment of trustees. Formerly the rule was otherwise ; but at the present day equity makes the husband a trustee and thus supports the trust.* And where a trustee, regularly appointed, in breach of his duty , and * without the * 189 privity of the wife, pays the trust-money over to the 1 Tiillett V. Armstrong, 1 Beav. 21 ; Peachey Mar. Settl. 2G0, and cases cited. 2 Macq. Hus. & Wife, 284. ' See Pybus v. Smith, 4 Bro. C. C. 485 ; Tullett v. Armstrong, per Lord Langdale, 1 Beav. 22 ; Macq. Hus. & Wife, 285. * Bennett v. Davis, 2 P. Wms. 316 ; Davison v. Atkinson, 5 T. R. 435 ; Mes- senger V. Clarke, 5 Exch. 393 ; Peachey Mar. Settl. 260. [199] * 189 HUSBAND AND WIFE. husband, equity follows the money into the husband's hands, and makes him likewise accountable as his wife's trustee.^ It impresses a trust upon the wife's separate estate wherever such estate may be found. But wliile the appointment of third persons as trustees is not essential to give the wife a separate estate, or a separate interest in any particular estate, it is certainly desirable on many accounts, and there is in it this marked advantage, that the property is made thereby more secure, because such influence of the husband over the wife is prevented as might induce her to abandon the property to him. 2 Prima facie, the legal ownership of property Avhich is in his wife at the time of marriage, or comes to her during cover- ture, vests in the husband, under his marital right. It is therefore necessary that the intention to establish a separate use be clearly manifested ; else courts of equity will not interpose against him. No technical formalities or expressions are required ; but the purpose must appear beyond the reach of reasonable controversy, in order to entitle the wife to claim the property as her own in derogation of the common law.^ As to the words which in themselves indicate the inten- tion of creating a separate use, there have been numerous decisions. Among them the following expressions are held sufficient. " For her full and sole use and benefit." * " For her own sole use and benefit."^ "For her sole use." ^ " For her sole and separate use and benefit." ' " For * 190 her sole and separate use."^ " For her * sole use and benefit." ^ " For her own sole use, benefit, and dis- 1 Rich V. Cockle, 9 Ves. 375. See also Izod v. Lamb, 1 Cr. & J. 35. '^ Newland v. Paynter, 10 Sim. 377 ; s. c. on appeal, 4 M. & Cr. 408; Hum- phreys. Richards, 25 L. J. Eq. 444 ; s. c. 2 Jur. 433 ; Peachey Mar. Settl. 260 ; Macq. Hus. & Wife, 291. See Wall v. Rogers, L. R. 9 Eq. 58. 3 Macq. Hus. & Wife, 307 ; Tyler v. Lake, 2 Russ. & M. 183 ; Kensington v. Dollond, 2 M. & K. 184 ; Moore v. Morris, 4 Drew, 37 ; Peachey Mar. Settl. 279. * Arthur v. Arthur, 11 Ir. Eq. 511. 5 Ex parte Killick, 3 Mon. D. & De G. 480. 6 Lindsell v. Thacker, 12 Sim. 178. ■J Archer v. Rorke, 7 Ir. Eq. 478. 8 Parker v. Brooke, 9 Ves. 583; Adamson v. Armitage, 19 Ves. 415. 9 V. Lyne, Younge, 562. [200] WIFE'S SEPARATE ESTATE ; ENGLISH DOCTRINE. * 190 position."! "For her sole and absolute use."^ "For her own use, and at her own disposal." ^ " To be at her disposal, and to do therewith as she shall think fit." * " Solel}'- and entirely for her own use and benefit." ^ " For her own use, independent of any husband." ^ " Not subjected to the control of her husband." "> " For her own use and benefit, independent of any other person." ^ " For her liveli- hood." 9 So, too, the intention of excluding the husband's marital rights, may be inferred from the nature of the provisions at- tached to the gift, as where, for example, the direction is that the property shall be at the wife's disposal, or there is some other clear indication that such was the donor's intention. ^^^ Lord Thurlow once decided that a direction " that the inter- est and profits be paid to her, and the principal to her or to her order by note, or writing under her hand," created a trust for the wife's separate use.^^ So in the judgment of Sir William Fortescue, Master of the Rolls, did the words " that she should enjoy and receive the issues and profits of the estate." ^^ And Lord Loughborough gave a like effect to a direction that certain property should be delivered up to a married woman, " whenever she should demand or require the same." ^^ A similar construction has also been ap- plied to the words, " to be *laid out in what she (the * 191 wife) shall think fit." ^^ And a legacy to a married woman, " her receipt to be a sufiicient discharge to the ex- ecutors," has been held sufficient.!^ A legacy added by a 1 Ex parte Ray, 1 Madd. 199. 2 Davis v. Prout, 7 Beav. 288. 3 Prichard v. Ames, Turn. & Russ. 222. 4 Kirk V. Paulin, 9 Vin. Abr. 96, pi. 43. 5 Inglefield v. Coghlan, 2 Coll. 247. e Wagstaff y. Smith, 9 Ves. 520. ■J Bain v. Lesclier, 11 Sim. 397. 8 Margetts v. Barringer, 7 Sim. 482. 9 Darley v. Darley, 3 Atk. 399. And see Peachey Mar. Settl. 279, 280; Macq. Hus. & Wife, 308, 309. i« Prichard v. Ames, Turn. & Russ. 223; Peachey Mar. Settl. 279. 11 Hulme V. Tenant. 1 Bro. C. C. 16. 12 Tyrrell v. Hope, 2 Atk. 561. " For to what end should she receive it," says this judge, " if it is the property of the husband the next moment ? " l-* Dixon V. Ohnius, 2 Cox, 414. n Atcherlcy v. Vernon, 10 Mod. 518. See Blacklow v. Laws, 2 Hare, 52. 15 Warwick v. Hawkins, 13 E. L. & Eq. 174. [201] *191 HUSBAND AND WIFE. codicil to the legacy given by a will is subject to the incidents of the original legacy ; and the separate use may be extended by construction from the will to the codicil.^ Yet, on the other hand, the form of expression will go far towards determining whether property is or is not limited to the -udfe's separate use. Vice-Chancellor Wigrara, in a case before him not many years ago, was forced to admit that while ruling out certain property, from the wife's separate use, on account of the testator's insufficient language, he had a strong opinion that he decided against the real intention of the testator.2 It is to be observed, then, that courts of equity will not deprive the husband of his rights at law, unless the words of themselves leave no doubt of the intention to ex- clude him.^ A mere trust therefore to pay the income of a fund to a married woman, and her assigns, is not sufficient to prevent the marital rights from attaching.* Even a gift to a wife " for her use," has been held not a sufficiently unequiv- ocal declaration of an intention to create a trust for the sep- arate use of the wife.^ Some words have greater efficacy than others. Thus it has been said that the word " enjoy " is very strong to imply a separate use.^ And much contro- versy has arisen in the English chancery courts over the use of the word " own " as synonymous with " sole," the * 192 result of which is to establish that * there is a substan- tial distinction between a gift to a wife, " for her sole use," and a gift " for her own use," or " for her own use and benefit." ' And it having been decided that the word ^ own " had no exclusive meaning, it was next determined that a trust to pay the proceeds of real estate into the proper hands of a married woman for her own use and benefit was not a gift to the wife's separate use, the word " proper " being the 1 Day V. Croft, 4 Beav. 561. 2 Blaeklow v. Laws, 2 Hare, 49. ' Peachey Mar. Settl. 281 ; Tyler v. Lake, 2 Russ. & M. 188 ; Massey v. Parker, 2 m". & K. 181 ; Macq. Hus. & Wife, 309. * Lumb V. Milnes, oVes. 517. 5 Jacobs V. Amyatt, 1 Madd. 376, n. ; Wills v. Sayers, 4 :Madd. 411 ; Roberts V. Spicer, 5 Madd. 491. 6 Sir Wm. Fortescue, in Tyrrell v. Hope, 2 Atk. 558. T See Lord Brougliatn's judgment in Tyler v. Lake, 2 Russ. & M. 187 ; Johnes v. Lockhart, 3 Bro. C. C. 383, n. ; Peachey Mar. Settl. 282. [202] WIFE'S SEPARATE ESTATE; ENGLISH DOCTRINE. * 192 Latin form of the word " own," and therefore payment into the wife's proper hands, signifying the same thing, as into her own hands. ^ Lord Brongham thus in effect overruled a decision of Lord Alvanley, who had held that the use of the •word " proper " would create a separate use.^ This later construction, coming from a jurisdiction so conclusive, has since prevailed, though not without some expressions of dis- satisfaction in the lower courts.^ And again, language of the donor, expressive of his intent to limit property to the wife's separate use, may be controlled by other words or provisions so as to negative such a supposition. This principle was ap- plied to the wife's disadvantage, in a case where others were made the objects of the bounty with her.^ Yet it has been held that a gift to the wife's separate use was good, although the support and education of children was annexed as a charge upon it.^ The expression " her intended husband " may apply to a second husband, where there are words limiting income to the wife's separate use during her life, for this latter expression controls the former.^ Whether the word " sole "is of itself sufficient to create a separate use is doubtful. Different opinions have been expressed on this point. But in a recent case before Vice- Chancellor Kindersley, the word " sole " was deemed insuf- ficient, in a devise of property to a female, her heirs, executors, administrators, * and assigns, " for her and * 193 their own sole and absolute use and benefit," to create a separate estate ; since the word " sole," as here used, had reference not only to the female herself, but to her heirs, executors, administrators, and assigns, who certainly could not be considered beneficiaries under any such trust." 1 Tyler v. Lake, 2 Russ. & M. 187. 2 Hartley v. Hurle, 5 Ves. 545. ' See Vice-Cliancellor Wirrram, in Blacklow v. Laws, 2 Hare, 49; Macq Hus. & Wife, BO'.i ; Peacliey Mar. Settl. 282. * Warelle v. Claxton, 9 Sim. 524. And see Gilchrist v. Cator, 1 I)e G. & S. 188. 5 Cape V. Cape, 2 You. & Coll. Exch. 543. And see n. to Macq. Hus & Wife, 310. 6 Hawkes v. Hubback, L. R. 11 Eq. 5. ' Lewis V. Mathews, L. R. 2 Eq. 177. And see Troutbeck v. Boughey, L. R. [203] * 193 HUSBAND AND WIFE. A gift of the produce of a fund, is to be considered a gift of that produce in perpetuity ; hence, it is a gift of the fund itself, nothing appearing to show a different intention. There- fore a bequest of a fund to a woman, with the interest thereon, to be vested in trustees, — the income arising therefrom to be for her separate use and benefit, — vests the capital for her separate use.^ Where a testator simply directs the invest- ment of a fund in trustees, for the benefit of a married woman, independent of the control of her husband, this is enough to carry the whole fund to her separate use.^ So it is held that where stock was given to trustees upon trust, to pay the dividends to a married woman for her separate use, and there was no limitation of a life-interest, an absolute interest in the capital passed to her, which she could dispose of as a feine sole.^ As a wife is only made a party to a suit instituted by her husband on the alleged ground of her having separate estate in regard to which she is a, feme sole, the husband, by making her a party, admits it to be her separate estate.* It is fair to suppose that in equity the wife's separate use binds the produce of the fund, as well as the fund itself. There are some cases decided in the courts of common law, where the contrary has been maintained, and to this effect, that, although a wife may be entitled to separate property, the dividends arising therefrom vest in her husband.^ This is no reason, however, why the equity doctrine should not be as we have stated ; indeed, if it were otherwise, as an * 19-4 English writer * has observed, the object of separate use would be in many instances frustrated.^ 2 Eq. 534. See also, as to property to husband and another in trust, Ex parte Beilby, 1 Glyn & Jam. 167 ; n. to Peachey Mar. Settl. 283. 1 Adamson v. Armitage, 19 Ves. 416; Macq. Hus. & Wife, 311 ; Troutbeck V. Boughey, L. R. 2 Eq. 534. '■* Simons v. Howard, 1 Keen, 7, per Lord Langdale. 3 Elton V. Shephard, 1 Bro. C. C. 582 ; Haig v. Swiney, 1 Sim. & Stu. 487. 4 Earl V. Ferris, 19 Beav. 69. * Tugman v. Hopkins, 4 Man. & Gr. 389 ; Came v. Brice, 7 M. & W. 183. 6 See Macq. Hus. & Wife, 291, and n. And see dictum of Sir Lancelot Shadwell, in Molony v. Kennedy, 10 Sira. 254 (quoted ib.), whicli intimates that this is the equity doctrine ; per Lord Hardwicke, Churchill v. Dibbin, 9 Sim. [204] "WITE'S SEPARATE ESTATE; ENGLISH DOCTRINE. * 194 The quality of separate estate ceases on the death of the wife ; and if her husband survives her, he becomes entitled to the property as though it had never been settled to her separate use. For the separate use was created only for the marriage state, and was not designed to extend beyond the dissolution of marriage, or when the necessity of the trust should be no longer felt. Thus choses in possession settled to the wife's separate use vest in the husband absolutely upon his survivorship.^ The wife's separate choses in action may be recovered by him in his right, as her administrator.^ So, doubtless, her separate chattels real go to the husband as survivor. In short, the wife's separate property upon the wife's death is freed from its peculiar incidents, and becomes like any other estate of hers, which may remain at her decease.^ And it seems clear that the husband may be tenant by the curtes}^ as usual, if not expressly excluded from all marital interest.* Yet the wife may defeat her husband's claim after her death by exercising her power of disposition during her life- time ; a power which is recognized in a married woman so far as her separate property is concerned.^ So too by the terms of the trust the husband's rights may be prevented from attaching. Thus, where a wife entitled to separate property for life, under a settlement which directed that all the trust property and all tl:^ * income thereof " remain- * 195 ing unapplied " at her death should go in a certain manner, left her husband some years before her death ; and the trustees received the income regularly and paid it into a bank in their own names, with her privity, making remit- tances to her as she required money ; and upon the wife's 447, n. Contra, Peachey Mar. Settl. 263, where cases are cited which do not support the statement in the text. 1 Molony v. Kennedy, 10 Sim. 254. 2 Proudley v. Fielder, 2 Myl. & K. 67 ; Drury v. Scott, 4 You. & Coll. Ch. 264 ; Stead v. Clay, 1 Sim. 294. 8 ilacq. Hus. & Wife, 285 ; Peachey Mar. Settl. 278 ; Sloper v. Cottrell, 6 El. & Bl. 501 ; Bird v. Pegrura, 13 C. B. 650 ; s. c. 17 Jur. 579. * Lushington v. Sewell, 1 Sim. 548 ; Roberts v. Dixwell, 1 Atk. 606, per Lord Hardwicke ; Macq. Hus. & Wife, 287; Appleton v. Rowley, L. R. 8 Eq. 139. But see Moore v. Webster, L. R. 8 Eq. 267. » Macq. Hus. & Wife, 285. [ 205 ] * 195 HUSBAND AND WIFE. death the sum of £888 was found among her effects, and a balance of £2,049 accumulated income stood to the credit of the trustees in the bank ; it was held by the Vice-Chancellor of England that the former went to the surviving husband by virtue of his marital right, while the latter was bound by the trusts of the deed as the result of income " remaining unapplied " at her death. ^ Since the separate use can exist only in the married state, it may sometimes have an ambulatory operation ; so as to be effectual according as the woman happens at the time to be covert or sole. Supposing, then, a gift be made to the sepa- rate use of a woman who is single at the time the gift takes effect ; it is clear that she shall enjoy the gift absolutely and without restraint. But if she afterwards marries will the separate use operate ? It will, unless by the terms of her marriage settlement she expressly renounces it.^ Supposing, however, she outlives her husband, the separate use ceases as in other cases ; since it can only be effectual during cover- ture. But if she marries again, the separate use revives once more ; and so onward, from time to time, ceasing and re- viving alternately, upon each alteration of her personal condition.^ A single woman, having a gift expressed to be to her sep- arate use, may renounce such separate use upon her marriage. This will be readily admitted. Yet the courts con- * 196 strue an act of this * sort strictly.* The evidence must be clear in all cases, that a single woman marry- ing has renounced her separate use ; for it will not be pre- sumed that she means, by the mere fact of matrimony, to 1 Johnstone v. Lunib, 15 Sim. 308. As to the wife's rights over money not the savings of her separate estate, see Barrack v. McCulIoch, 3 Kay & Johns. 114; Brooke w. Brooke, 4 Jur. n. s. 472; Peachey Mar. Settl. 262. But see Messenger v. Clarke, 6 Exch. 888, for the doctrine at law. 2 Tullett V. Armstrong, 1 Beav. 1 ; Anderson v. Anderson, 2 Myl. & K. 427 ; Macq. Hus. & Wife, 306. 3 Macq. Hus. & Wife, 806 ; Tullett v. Armstrong, 1 Beav. 1, affirmed by Lord Cottenham, 4 Myl. & Cr. 377 ; Hawkes v. Hubback, L. R. 11 Eq. 5. * Johnson i;. Johnson, 1 Keen, 648 ; Macq. Hus. & Wife, 306. See Marriage Settlements of Infants, post. [206] WIFE'S SEPARATE ESTATE; ENGLISH DOCTRINE. * 196 relinquish her control of the property. But antenuptial settlements may be made on reasonable terms by the parties contemplating marriage. And there is nothing to prevent the operation of a trust for separate use from being confined to a particular coverture, where all concerned are so minded. In such cases, however, the wife marrying again can always stipulate for her separate use.^ It would appear to be the English doctrine that the marital obligations of the husband are not essentially altered b}^ her right to separate property. Thus, it is held that the wife is not bound to maintain her husband out of her separate for- tune, nor to bring any part of it into contribution for family purposes.^ And there seems to be no legal authority to sup- port the notion that the husband's liabilities on her general debts are thereby altered during their joint lives.^ But it is held that the separate estate of a married woman is after her death a trust for the payment of her debts."^ The common- law liabilities of the husband, to be sure, rest in great meas- ure upon his right to his wife's property ; yet we may admit that it would be difficult to adjust any new rule except upon partnership principles. If one marries a rich wife, therefore, who chooses to hoard her savings by herself, bequeath all to others, and compel him, a poor man, to pay for every thing she or the children need, all their lives, and her general debts besides, it is possible that even equity will deny him relief. By a recent statute the wife's separate property is expressly made liable for her antenuptial debts.^ * Moreover the wife is not bound to maintain, edu- * 197 cate, or provide for her children out of her separate property ; and even though she elope from her husband, equity will not lay hold of her estate for that purpose. This is a settled point in England, unless the legislature shall Macq. Hus. & W e, 307. See Knight v. Knight, 6 Sim. 121; Bradley v. Hughes, 8 Sim. 149 ; Benson v. Benson, 6 Sim. 126. '^ Lamb v. Mihies, 5 Ves. 520. » See Macq. Hus. & Wife, 288. But see infra, pp. 225, 226. * 2 Story Eq. Jur. § 1398, h. ; Norton v. Turrill, 2 P. Wms. 144. But see In re Baker's Trusts, L. R. 13 Eq. 168. * Sanger v. Sanger, L. K. 11 Eq. 470. [207] *197 HUSBAND AND WIFE. change the law hereafter ; for the House of Lords so decided in Hodgden v. Hodgden^ on appeal from the lower court of chancery, and under the advice of Lord-Chancellor Cotten- ham.^ And yet whenever a settlement of the wife's equity is decreed, where the husband or his legal representative seeks to recover for himself her choses in action^ the children of the marriage are included within its benefits ; though, to be sure, the wife may waive the claim altogether without reference to them.^ It is possible that a provision for the wife's separate use may fail, as against thu'd parties purchasers, wherever the husband can dispose of the property without their having notice of the trust.^ The clause of restraint upon anticipation is an important element in the doctrine of the wife's separate use, as admin- istered in England. This clause was sanctioned by Lord Thurlow ; '^ is frequently to be met with in modern convey- ances ; and is pronounced by Mr. Macqueen, and such as he chooses to denominate " the wise," a salutary clause which takes from the wife the power of bringing ruin upon herself ; though it is manifestl}'' in form a fetter upon the trust estate, while the wisdom of its establishment in any case depends upon the folly of the beneficiary .° With a perfect liberty of disposal, the danger arose that the wife might be persuaded to part with, or charge her separate property, even * 198 against her better judgment, through * the secret and subtle influences which her husband might bring to bear u^jon her. But by the clause against anticipation, the wife's hands are tied up ; she has not the power of alienating or encumbering the property ; and the donor can place his gift beyond the possibility of matrimonial contention. The restraint upon anticipation extends even to landed property, 1 4 Cl. & Fin. 323, reversing tiie decree of the court below. 2 See supra, ch. 5, tlie wife's equity to a settlement. 3 Parker v. Brooke, 9 Ves. 583 ; Macq. Hus. & Wife, 291. * Miss Watson's Case. See Pybus v. Smith, 3 Bro. C. C. 340, n. This doc- trine was afterwards affirmed in Jackson v. Hobhouse, 2 Mer. 487, by Lord Eidon. 5 See Macq. Hus. & Wife, 312. [208] WIFE'S SEPAEATE ESTATE ; ENGLISH DOCTRINE. * 198 notwithstanding the common-law methods by which the wife may ordinarily alienate and encumber such estate ; so that a person may now devise lands to a married woman in fee-sim- ple in such a manner as to disable her during coverture from making any sale, mortgage, charge, or encumbrance whatever to take effect against it.^ The name of this important clause originates in the circum- stances under which it was first applied.^ The general pur- port of this expression is that the wife shall be prohibited the anticipation of the income of her separate property or the an- ticipation of the capital of the fund. Yet the word " antici- pation " need not be used in clauses of this sort, nor is any particular form of expression necessary.^ Like the separate use itself, this clause of restraint on antici- pation exists only in the marriage state ; and property vested in a single woman she may dispose of absolutely, despite such limitation, so long as she remains unmarried ; but upon her coverture, while retaining such property, the separate use and the restraint upon anticipation attach and become effective * together, cease together upon her widow- * 199 hood, and revive together upon her remarriage.* But the restraint on anticipation does not exempt a mar- ried woman from the ordinarj' consequences of lapse of time and acquiescence. That fetter upon alienation was imi)osed for her protection against her husband, but was not intended to exonerate her from the obligation of asserting her claim 1 Bagget V. Meux, 1 Pliil. 627, per Lord Lyndhurst ; 1 Coll. 138 ; Macq. Hus. & Wife, 312 ; Peacliey Mar. Settl. 284. Nor can she join her husband in a power of attorney to receive or sue for moneys tied up by this clause. Kenrick V. Wood, L. R. 9 Eq. 333. 2 See Pybus v. Smith, 3 Bro. C. C. 340 ; Jodrell v. Jodrell, 9 Bcav. 59. 3 Per Lord Cranworth,. /n re Ross's Trust, 1 Sim. 199; Doolan v. Blake, 3 Ir. Ch. 349 ; Peacliey Mar. Settl. 287. See further, Moore u. Moore, 1 Coll. 57 ; TuUett V. Armstrong, 1 Beav. 1 ; Macq. Hus. & Wife, 314, n. ; Steedman v. Poole, 6 Hare, 193; Parkes v. White, 11 Ves. 222; Clark v. Pister, 3 Bro. C. C. 346, cited in Pybus v. Smith ; Barrymore i'. Ellis, 8 Sim. 1 ; Brown v. Bamford, 1 Phil. 620; Field v. Evans, 15 Sim. 375; Baker v. Bradley, 2 Jur. n. s. 104; Peachey Mar. vSettl. 287, 288, and cases cited ; Harrop i'. Howard, 3 Hare, 624; Harnett v. M'Dougall, 8 Beav. 187 ; Acton i\ Wliite, 1 Sim. & Stu. 429. * TuUett V. Armstrong, 1 Beav. 1; 4 Myl. & Cr. 377; Macq. Hus. & Wife, 313 ; Clarke v. Jaques, 1 Beav. 36 ; Dixon v. Dixon, 1 Beav. 40. 14 [ 209 ] * 199 HUSBAND AND WIFE. ■within a reasonable period. Indeed, it is but reasonable that, as a court of equity creates and models the separate estate, the estate so created and modelled should be subject to the ordinary rules of the court.^ But the court cannot mould at will the fetter imposed upon alienation, though the language used by some of the earlier judges would seem to indicate otherwise ; moreover, while the power to impose restraint on anticipation is a mere creature of the court, the restraint itself is always imposed by the author, the settlor of the gift.^ Although the wife's separate use is the creature of equity, and specially consigned to its watchful keeping, courts of law will sometimes afford it protection. This seems to be, how- ever, only in cases where a trustee is interposed to hold the legal estate ; for, since the common-law courts maintain their own maxims, there should be some person designated to hold the fund for the wife ; and such person Mall be considered as the legal owner so as to save the property from attachment and sale for the husband's debts. ^ Under a recent act of 1870, it is made the duty of a company to register stock in the name of a married woman entitled to her separate use ; and this duty is enforceable by mandamus.* 1 Derbishire v. Home, 3 De G., M. & G. 113. ' Robinson v. Wheelwrigbt, 21 Beav. 220; s. c. on appeal, 6 De G., M. & G. 535 ; 2 Jur. n. s. 554. See Peacbey Mar. Settl. 289 ; Fitzgibbon v. Blake, 8 Ir. Ch. 328. Income wbicb a wife is restrained from anticipating will not be ap- plied to make good tbe consequences of ber fraud. Arnolds v. Woodhams, L. R. 16 Eq. 29. * See Izod v. Lamb, 1 Cr. & J. 35 ; Davison v. Atkinson, 5 T. R. 434 ; Dean V. Brown, 2 Car. & P. 62 ; Macq. Hus. & Wife, 291. 4 Queen v. Carnatic R. R. Co., L. R. 8 Q. B. 299; Act 33 & 34 Vict. c. 93. [210] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. ♦ 200 * CHAPTER XL * 200 THE wife's separate ESTATE ; AMERICAN DOCTRINE. The doctrine of the wife's separate estate is one of peculiar growth and development in this country, though doubtless originating in the maxims of the English chancery, and deriving much of its strength from the splendid accomplish- ments of Langdale, Thurlow, and Eldon, in their own land. What such men and their successors effected by judicial pol- icy, we have carried into our statutes ; nay, we have gone further. In England, the equitable rights of married women are the triumph of the bench ; with us the early efforts of the bench have been eclipsed by the later achievements of the legislature, and the judge follows the law-giver to restrain rather than enlarge. When this country was first settled, the separate use was but little understood in England. Its development there was gradual, and its final establishment of a later date. Our ancestors brought over the common law with them ; but for equity they had little respect. True, it cannot be said that by the jurisprudence of a single State, property bestowed upon a married woman to her separate use, free from the con- trol and interference of her husl)and, would remain subject, notwithstanding, to his marital dominion ; but prior to the late married women's acts there Avere, in many States, no judicial precedents to combat such an assumption. That such trusts might be created was not denied ; but whetlier there were courts with authority to enforce them appeared frequently doubtful. ^ * In the New-England States, * 201 ' It is true that the general recognition here of the wife's separate use has been presumed by our text-writers. See 2 Kent Com. 162; Reeve Dom. Kel. 162; 2 Story Eq. Juris. § 1378 et seq. We confine our observation to jiulioial prec- edenls. What Cliancellor Kent has to say on tlie American equity doctrines in his work, must be taken by the general student with some qualifications, [211] * 201 HUSBAND AND WIFE. scarcely a vestige of the separate use was to be found. ^ New York, Avith such eminent chancellors as Kent and Wal- worth, took the lead in building up an equity system parallel with that of England ; and in the reports of this State are to be found most of the leading cases and the ablest discussions of what may be termed American chancery doctrines. New Jersey recognized the separate use, and her chancery court exercised liberal powers. In Pennsyvlania, the doctrine was recognized to some extent. The courts of Maryland, Virginia, and the Southern States generally, had frequent occasion to apply the separate-use doctrine ; none more so than those of North and South Carolina. And it may be remarked that the aristocratic element of society in that section of the coun- tr}', also a prevalent disposition for family entails, marriage settlements, and fetters upon the transmission of landed prop- erty, aided much in developing therein the English chancery system. So was it in Kentucky and Tennessee, States founded upon like institutions. But as to Ohio, Indiana, Illinois, and the other States erected from what was formerly known as the North-west Territory, society was modelled more after New England, and we find no clear recognition of the wife's equitable separate use. Louisiana, and such contiguous States as were originally governed by French and Spanish laws, had more or less of the civil or community system ; and to these States English equity maxims had at best only a limited ap- plication. Such, then, is the wife's separate use, viewed in the light of judicial precedents, as known in the United States up to a quarter of a century ago.^ inasmuch as the learned writer draws largely upon his judicial opinions, ren- dered in a State which especially favored chancery jurisprudence. The want of a general recognition of the wife's separate use, as unfolded in England, aids in explaining the curious fact that our States were legislated into a system which the English chancery had felt competent to rear unaided. 1 But see Finney v. Fellows, 15 Vt. 52-5 (1843). - See U. S. Eq. Dig. Husband & Wife, 12 ; Reade r. Livingston, 3 Johns. Ch 481 ; Meth. Ep. Church i'. Jaques, 1 Johns. Ch. 65 ; Rogers v. Rogers, 4 Paige, 516 ; Vernon v. Marsh, 2 Green Ch. 502 ; Steel r. Steel, 1 Ired. Eq. 452 ; Jackson V. McAliley, Speers Eq. 303 ; Boykin v. Ciples, 2 Hill Ch. 200, 204 ; Hunt v. Booth, 1 Freem. Ch. 215 ; Warren v. Haley, 1 S. & M. Ch. 647 ; Hamilton v. Bishop, 8 Yerg. 83; Griffith r. Griffith, 5 B. Monr. 113; McKennan r. Phillips, 6 Whart. 571 ; Gray v. Crook, 12 Gill & J. 236 ; Howard v. Menifee, 5 Pike, 668. [212] WIFE'S SEPARATE ESTATE ; AMERICx\.N DOCTRINE- * 202 * But where recognized and enforced at all, the strict * 202 American rule was borrowed from that of England. Thus it has been frequently said that the wife's separate estate requires no trustee to sustain it.^ For when no other trustee is interposed the courts of chancery are prepared to treat the husband as such.^ So, too, an intention clearly manifested to create a separate estate has always been deemed necessary in our courts, in order to exclude the husband's marital rights. The mere intervention of a trustee is insufficient.^ The language employed must be suitable. Thus in Xorth Carolina, the words "for her use " have been held sufficient to exclude the husband's dominion.^ So, too, the words for the "entire use, benefit, profit, and advantage."^ But in South Carolina, the words for " the use of his wife," are held insufficient.^ In Kentucky, the words " for her own proper use and benefit," are held sufficient.^ Such, too, seems to have been the rule in Alabama.^ The words " to the use and benefit," are held sufficient in Tennessee.^ So in Alabama, words importing enjoyment, " without let, hindrance, or mo- lestation whatever." ^^ And where one clause of a will applies the * words, " in trust for the separate use," to * 203 certain property, and another applies to certain prop- 1 McKennan v. Phillips, 6 Whart. 571 ; Thompson v. McKusick, 3 Humph. 631 ; Fellows v. Tann, 9 Ala. 999 ; Trenton Banking Co. v. Woodruff; 1 Green Ch. 117. 2 Boykin v. Ciples, 2 Hill Ch. 200 ; Hamilton ;•. Bisiiop, 8 Yerg. 33 ; Wal- lingsford v. Allen, 10 Pet. 583; Porter v. Bank of Rutland, 19 Vt. 410; Har- kins V. Coalter, 2 Port. 463; Franklin v. Creyon, 1 Harp. Ch. 243; Freeman v. Freeman, 9 Mis. 763. ' Hunt V. Booth, 1 Freem. Ch. 215 ; Graham v. Graham, Riley, 142 ; Taylor V. Stone, 13 S. & M. 653; Lenoir v. Binney, 15 Ala. 667. * Steel V. Steel, 1 Ired. Eq. 452 ; Good v. Harris, 2 Ired. Eq. 630. * Heathman v. Hall, 3 Ired. Eq. 414. « Tennant v. Stoney, 1 Rich. Eq. 222 ; M'Donald v. Crockett, 2 McC. Ch. 130. ^ Griffith V. Griffith, 5 B. Monr. 113. This is contrary to the present Eng- lish rule. See last cliapter. 8 Warren v. Halsey, 1 S. & M. Ch. 647. 9 Hamilton v. Bishop, 8 Yerg. 33. "• Newman v. James, 12 Ala. 29. And see Clarke v. Windham, ib. 798. [ 213 ] * 203 HUSBAND AND WIFE. erty the words " in trust " only, the separate use may by con- struction embrace the whole.^ But the words "sole and separate use " are most commonly applied. A gift or bequest to " a married woman and her children, born and thereafter to be born," does not invest her with an estate to her sole and separate use, but makes her a tenant in common (joint-tenancy ha\dng been abolished), with her children.^ And it would appear in general, that where property is given for the use and support of two or more together, one of them being a married woman, it cannot be considered as vesting a separate estate in the mamed woman ; for exclusiveness of enjoyment is an important element in such estates.^ This doctrine is not inconsistent w^ith the well- established right of a donor to make a trust first to the wife's separate use, then over to some one else, provided the instru- ment uses apt language for that purpose.^ And provisions for the sole and separate use, support, and maintenance of a wife and children are frequently sustained, though the trust does not vest their respective interests consecutively.^ As in Eng- land, our courts permit an estate to be so settled on an un- married female as to exclude the marital rights of any future husband.^ In Vermont, it is decided that a third person may create a parol trust for a married woman's exclusive benefit, except as to landed property, which falls within the statute of frauds. Thus in a case where it appeared that the father of a married woman had intimated to her and her husband, in conversation, that he was about to make her an advance in money, which he wished to have invested for the benefit of herself and her children, and that he had subsequently enclosed in a * 204 letter to her * husband, a check for flOOO, payable to his daughter, or bearer, expressing in the letter a wish 1 Davis V. Cain, 1 Ired. Eq. 304. 2 Dunn v. Bank of Mobile, 2 Ala. 152. 3 Harkins v. Coalter, 2 Port. 463 ; Clancy Hus. & Wife, 269 ; Inge v. Forres- ter, 6 Ala. 418. * See Warren v. Haley, 1 S. & M. 647. •^ Good V. Harris, 2 Ired. Eq. 630 ; Hamilton v. Bishop, 8 Yerg. 88 ; Ander- son V. Brooks, 11 Ala. 953. 6 Beaufort v. Collier, 6 Humph. 487. [214] WEFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 204 that the money might be invested for the mutual benefit of his daughter and her heirs, leaving the mode to be determined by her and her husljand, on consultation between them ; also, that she had at the time of the suit three children ; the court considered that there had been a trust created for the exclu- sive benefit of the donor's daughter and her children ; and the husband was taken to be the trustee, as against his own creditors who had attached certain bank stock which he pur- chased in his own name with such funds ; the evidence show- ing that the creditors had received notice that the stock was held in trust.^ Our courts of equity will sometimes overlook informalities in order to give effect to the wife's separate use. As where a deed of trust to a commissioner has been ordered by the court, but never executed, and the commissioner gives possession to the husl)and in the mean time.^ Or where a deed has not been recorded in comi^liance with the statute.^ So a trust may be enforced, although the details of the arrangement cannot be ascertained by the most stringent proof ; and it would appear that a person may by his acts make himself a trustee sub modo to support the wife's separate use."* The wife cannot be de- barred of her separate estate through the fraud of others ; it must be a fraud to which she is a party, that will bar her bene- ficial title.^ Even a purchaser, still more a volunteer, taking possession of the trust property, with a notice of the trust, will be made a trustee in chancery.^ A married woman cannot by contract acquire any property * to her separate use ; but the benefit of her * 205 contract, if any, enures to her husband." Where, how- ever, a married woman, with her husband's consent, purchases 1 Porter v. Bank of Rutland, 19 Vt. 410. Mr. Macqueen suggests the opin- ion that a parol trust would be good in England, tliough admitting that he finds no decision of the question. Marriage settlements, however, may be affected by the statute of frauds. Macq. IIus. & Wife, 293. 2 Jackson v. McAlilcy, Speers Eq. 303. « Hamilton v. Bishop, 8 Yerg. 33. ♦ Sledge V. Clopton, 6 Ala. 589. 5 Jackson v. McAliley, Speers Eq. 303. 6 lb. And see Fry v. Fry, 7 Paige Ch. 461. ' Lansier v. Ross, 1 Dev. & Bat. Eq. 39. [215] * 205 HUSBAND AND WIFE. lands which she was the meritorious cause of acquiring, and takes a deed to another, it is hekl in Vermont that a trust results in her favor.^ On the other hand, if a testator gives a legacy to trustees for the use of a daughter, and directs that it may be invested in real estate for her use, if she should desire it, and that the trustees should take the title in the name of the daughter only, though married, the trustees must follow his directions, and they cannot take a title in any other • name, though by taking it in the name of the daughter, the property might be subjected to the husband's debts.^ The Enghsh doctrine that the wife's separate estate is not necessarily liable for her own debts is also admitted here. Thus it is held in New York that the only ground on which the wife's separate property can be reached for her antenup- tial debts, is that of appointment ; that is, some act of hers after marriage which indicates an intention to charge the property .3 Nor can the bankruptcy of the husband, although it suspends the legal remedy against the wife during covert- ure, afford any ground for proceeding in equity to charge her separate estate.* Nor in the absence of an intention on the wife's part to make such estate liable can it be subjected to her general debts contracted during coverture.^ But in Mis- sissippi a disposition has been manifested to overturn this doc- trine, and to establish a new and fairer rule in equity, and it is held that the wife's separate property, owned * 206 before marriage, may be thus subjected to *the pay- ment of necessaries furnished her while sole and a minor.^ 1 Pinney v. Fellows, 15 Vt. 525. And see Pulliam v. Pulliam, 1 Freem. Ch. 348. 2 Vernon v. Marsh, 2 Green Ch. (N. J.) 502. 3 Vanderheyden v. Mallory, 1 Conist. 452. * lb. See McKay v. Allen, 6 Yerg. 44 ; Pearee v. Spierin, 2 Desaus. 460. 6 Dickson v. Miller, 11 S. & M. 594 ; Knox v. Picket, 4 Desaus. 92 ; Gee v. Gee, 2 Dev. & Bat. 103 ; Ilaygood v. Harris, 10 'Ala. 291 ; Curtis v. Engel, 2 Sandf. Ch. 287. 6 Dickson v. Miller, 11 S. & M. 594. "In marriage," observes Mr. Justice Thacher, "although a husband runs the hazard of becoming liable for his wife in an amount greater than the value of the estate he receives by her, he also has the chance of receiving by her an amount far exceeding her debts. But where C 216 ] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 206 In general the husband's obligation to maintain his wife and family remains unaffected by the fact that the wife holds separate property. This rule is fully asserted in New York. For it is declared that, though by a marriage settlement the wife's whole property is secured to her separate use, her hus- band is nevertheless bound to maintain her, and cannot make the expenses a charge on her separate estate. Nor can the admissions of the wife, during coverture, that the expenses were to be borne by her separate estate, be set up by the hus- band to impair her rights under the settlement.^ " The utmost I can do in this case," observed Chancellor Kent, "is to allow the husband to be credited with any necessary reparations bestowed by him on any part of her estate ; and with any particular specific approjDriation of her property (not being for the ordinary maintenance of her or his famil}^) which may have been made by her special assent and direction, in the given case, and apparently for her benefit." ^ Where a conveyance is made in trust for the separate use of a married woman, or for such person as she should direct, and she makes no appointment, it is held in Pennsylvania that the trustee after her death is entitled to recover the property for her representatives.^ But if a married woman, having a separate * estate, survives her husband, the * 207 restraints upon the disposal of the estate inconsistent with its general character, cease with the coverture.'* Nor do they revive on her second marriage.^ And where, by a will, personal estate was given to a trustee, in trust, to pay over the the whole estate of a wife, notwithstanthng coverture, continues separate to her, there is no such recompense to the husband for liis obligation for his wife's debts, but on the contrary, there may be a certainty of his becoming indebted on behalf of his wife, with no possibility of his receiving an amount even equal to her debts." lb. And see Cater v. Everleigli, 4 Desaus. 19. 1 Meth. Ep. Church v. Jaques, 1 Johns. Ch. 450. 2 lb. It may be said that the above case arose out of an antenuptial contract between liusband and wife, and that the court merely restrained the husband from setting aside his own bargain. * Dinsinore v. Biggert, 9 Barr, 133. * Smith V. Starr, 3 Whart. 62. See O'Kill v. Campbell, 3 Green Ch. 13 ; and the recent case, Pooley v. Webb, 3 Cold. 699. 6 Hamersley v. Smith, 4 Whart. 1*20. [217] * 207 HUSBAND AND WIFE. profits to a daughter of the testator, a married woman, semi- annually, for her sole benefit during her life, the will contain- ing no provision for a second marriage of the daughter ; it has been held in North Carolina that upon the death of the hus- band the separate use ends, and does not revive upon the remarriage of the beneficiary. On the contrary, the second husband's marital rights attach upon the property.^ The hus- band surviving his wife has the same rights in her separate estate, as in her other property, even though another be appointed administrator .^ The savings of the interest arising from the separate estate of a married woman, are as much separate property as the principal, unless she has suffered them to pass under her hus- band's marital control. And property purchased with such savings belongs to her and continues suliject to the same rules.3 But furniture purchased by the wife, with the income of her separate estate, and mixed with the furniture of the husband, becomes the property of the husband, unless it was understood between them, at the time of the purchase, that the property should be kept by him as her trustee merely.'^ Upon a bill by husband and wife to recover her separate property the court may decline to make the husband trustee, and order payment to be made to some third person as * 208 trustee * for her.'^ And where real estate is conveyed in trust for a married woman, and to such person as she shall appoint, it is not necessary that the husband should join in the appointment.^ So on a suit, either by the husband or the wife, in relation to the wife's separate real and per- sonal estate, a suitable maintenance will be pro\^ded for her, 1 Miller v. Bingham, 1 Ired. Eq. 423. 2 Spann v. Jennings, 1 Hill Ch. 325 ; Good v. Harris, 2 Ired. Eq. 630 ; McKay V. Allen, 6 Yerg. 44. And see recent case of Cooney v. Woodburn, 33 Md. 320. 3 Merritt v. Lyon, 3 Barb. 110; Hort u. Sorrell, 11 Ala. 386. See Kee v. Vasser, 2 Ired. Eq. 553. See English doctrine, last chapter. « Shirley v. Shirley, 9 Paige, 363. 5 Boykin v. Ciples, 2 Hill Ch. 200. 6 Thompson v. Murray, 2 Hill Ch. 204 ; 4 Kent Com. 318. [218] WIFE'S SEPARATE ESTATE ; AMERICAN DOCTRINE. * 208 even as against the husband's execution creditor, and even though her equity extends to the whole estate.^ Where the wife's separate estate is sold for a debt of the ancestor from whom it descended, it has been held in New York that the surplus belongs to the husband.^ And where a wife joins with her husband in the conveyance of her land, without any understanding or agreement that the proceeds are to be applied to her separate use, such proceeds vest absolutely in him discharged of all claims on her part.^ For the presumption in such cases is that she voluntarily abandons her separate use in his favor ; though the question after all is one of evidence.^ The wife's separate use was sustained in Connecticut, upon the comity of nations, in a case decided in 1842, prior to the married women's acts ; a policy of insurance against fire having been issued by an office in that State, to a married woman residing in Canada, on her separate estate there situ- ated. The court intimated that in Connecticut a married woman could not be the independent owner of property.^ The wife's separate use, as an American system, or rather as the system of certain American States, had thus far pro- gressed when our local legislatures took the subject actively in hand. The American equity courts had followed the English precedents * pretty closely, but without * 209 displaying the same vigor and boldness. None of the foregoing decisions had attracted popular attention or served to bring out the discussion of strong leading principles ; though covering a period of sixty years down to the middle of the present century. During the preceding twenty-five years a change in public opinion had been gradually wrought in this country and in England, — though with us more rapidly than abroad. The married woman of America turned to the legis- 1 Haviland v. Myers, 6 Johns. Ch. 25; Haviland v. Bloom, ib. 178; Barrett V. Oliver, 7 Gill & J. 191 ; Slowman v. Perryclear, Riley Ch. 47. 2 Wood V. Genet, 8 Paige, 137. 3 Chester v. Greer, 5 Humph. 26 ; Temple v. Williams, 4 Ired. Eq. 39. * See Temple v. Williams, supra. * Jones V. JEtna. Ins. Co., 14 Conn. 501. [219] * 209 HUSBAND AND WIPE. lature rather than the courts of her State for a more complete marital independence, for the right to control her own prop- erty, for freedom from the burdens of coverture. In shap- ing popular sentiment, doubtless, the annexation of territory lately governed by the principles of Roman law had consider- able influence, particularly in the States adjacent to Louisiana ; still more in a national sense did our rapid advancement as a self-governed nation, and the spread of public education, of independence in life and manners, and of equal social inter- course of the sexes, help on the new reform. The year 1848 saw a wondrous revolution effected in the foremost States of this Union, as to the property rights of mar- ried women ; and this revolution has since extended to every section of the country. The influence of these changes has also been felt abroad ; and a like reform is now being pressed in the Englisli Parliament.^ In 1821, the legislature of Maine had authorized the wife, when deserted by her husband, to sue, make contracts, and convey real estate as if unmarried, prescribing the mode of procedure in such cases. A like law previously existed in Massachusetts.^ These appear to have been the earliest of the married women's acts, properly so called : the first-fruits of the modern agitation on woman's rights. The example of Massachusetts and Maine in this respect was soon imitated elsewhere. New Hampshire, Vermont, Tennessee, * 210 Kentucky, and Michigan all passed * important laws of a similar character before 1850. The independence of married women whose husbands were convicts, runaways, and profligates, became thus the first point gained in the new system. In Massachusetts and Rhode Island, the wife's separate use in life-insurance contracts for her benefit was an object of special solicitude ; then, in 1845, the former State turned its attention further to a public recognition of marriage settlements and trusts for the wife's separate benefit, extend- ing the equity jurisdiction of its courts for that purpose. The right of a married woman to dispose of her property by will was legalized in Illinois, Pennsylvania, Michigan, and Con- 1 See 3 Juridical Society Papers (1870), part 17. 2 See Rev. Sts. Maine (1840), p. 341; Rev. Sta. Mass. (1836), pp. 485, 487. £ 220] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 210 necticut about the same time. In Comiecticut, Ohio, Indiana, and Missouri, the first reforms appear to have been directed towards exempting the wife's property from liability for her husband's debts rather than giving her a complete dominion over it.i The Roman jmnciple of an independent estate prevailed in Louisiana at the time of its admission into the Union ; and like traces appear in the legislation of Florida, Arkansas, Texas, and other adjacent States. So was the doctrine of separate estate promulgated by Mississippi statute as early as 1839.2 And in other Southern States, as Alabama and North Carolina, where chancery jurisprudence was well established, appeared laws investing the courts with larger powers in matters of this sort.^ Alabama and Mississippi appear to have first postponed the husband's liability for his wife's antenup- tial debts to her separate estate.^ But the sweeping changes effected by the legislature of New York, in 1818, deserve more than a passing notice. The debates of the constitutional convention of that State in 18-16 evinced the growing desire for a radical reform in the property rights of * married women ; and the advocates * 211 of the movement, failing in their attempt to secure an article of amendment to the State constitution on their behalf, next addressed themselves to the legislature ; and with suc- cess. On the 7th of April, 1848, was enacted a law " for the more effectual protection of married women," which provided that the real and personal property of any female already married, or who may hereafter marry, which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property as if she were a single female ; and that any married female may lawfully receive and hold property in like man- 1 See 2 Bright Hus. & Wife, Am. ed. 1850, p. 627 et seq., where married women's acts are cited by Mr. Lockwood ; 2 Kent Com. 130, n. ■^ See 2 liriglit, ib. The influence of a large commercial city, like New Or- leans, was doubtless felt in tiie sparsely settled territory surrounding it. Tiie codes of tiiese States were all disfigured by " chattel " provisions, whicii detracted much from the merits of a policy otherwise humane to the wife. 2Brigiit, ib. 4 Ib. (1846). [221] * 211 HUSBAND AND WIFE. ner from any person other than her husband, — whether by gift, grant, devise, or bequest. This statute, passed at such a time by the foremost State in the Union, — a State thoroughly Northern in its institutions, while the recognized champion of chancery principles, — could not fail to make a deep national impression.^ A parallel movement had meanwhile progressed in Penn- sylvania ; and in that State an act of the legislature, dated only four days later, conferred substantially the same rights of property upon married women, though expressed in differ- ent language. This act, still more remarkable in its general provisions than that of New York, not only recognized the wife's separate use in her own property as a legal right, but at the same time gave her the power to dispose of such estate by will, made it liable for family necessaries in failure of at- tachable property belonging to the husband, admitted children to the inheritance of separate personal estate in common with the surviving husband, and exempted the husband from all liability for his wife's antenuptial debts. It farther provided that the wife's separate property should be absolutely * 212 liable for her general contracts * and torts, and that only her formal consent, given in the manner therein specified, could bring the property under subjection for the husband's debts, or effect a lawful transfer.^ It should be said that Michigan had enacted laws in 1844, giving enlarged powers to the wife to hold and dispose of separate property ; thus anticipating some of the statutory changes both in New York and Pennsylvania.^ From this time forth the revolution became rapid, and ex- tended to nearly all the States : Virginia and Delaware consti- tuting exceptions. And the work still goes on. Scarcely a year has passed within the last fifteen years without some new married women's acts added to the local statute books.* 1 We give the substance rather than the language of this statute. See 2 Bright Hus. & Wife, Am. ed. 1850, Lockwood's note, 581 et seq. This statute was afterwards considerably modified by acts of 1849, c. 375, and 1860, c. 90, §1- 2 Bright, ib. p. 648 ; Laws Penn. 1848, pp. 536, 537, 538. » Rev. Stat. Mich. (1846), p. 340. * The acts now in force, many of them perplexing, which need not here be [ 222] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRIXE. * 213 * In general, it may be remarked that the American * 213 statutes relating to married women are designed for detailed, may be briefly summed up as presenting this day the following Ameri- can system of positive law. In Maine, a liberal right in married women of hold- ing property to separate use independently of the husband's control, which the wife may relax by a revocable instrument enabling her husband to manage it. In New Hampshire, a right in the wife to hold from strangers, and from her husband where not in fraud of creditors, and to acquire her own earnings when deserted. In Vermont, less explicit legislation (chancery powers in this State being large) ; but earnings under like circumstances, and money damages in any case, secured to her separate use ; rents, issues, and profits of her property being exempt from attachment for her husband's debts. In Massachusetts (the lan- guage of whose statutes has been closely followed in many of the Western States), a liberal right to hold, acquire, and control separate property, including compensation for release of dower and property under settlements from her husljand; also her own earnings. In Rhode Island, exemption of the wife's sole and separate property from liability for the husband's debts, but favor shown to the husband's general control. In Connecticut, a somewhat limited recognition of separate estate in the wife ; but a clear right given to her earnings and the proceeds of real estate ; also personal estate, coming during coverture, made subject to her antenuptial debts ; the husband's control and management being favored. In New York, the most liberal provisions on the wife's behalf as to property held before marriage and acquisitions during coverture through her husband or third persons ; also her earnings ; a complete emancipation from marital dominion. In New Jersey, a similar policy, but more guarded. In Pennsylvania, large privileges, as already detailed ; which however the coiu"ts are disposed to restrict. In Maryland, a liberal policy, yet the disposition shown rather to secure against the husband's debts by chancery protection, than to give the wife a statutory marital dominion. In Ohio, no sweeping statutes, but gen- eral exemption of tlie wife's separate estate from her husband's debts, even to his life-interest in her real estate. In Miciiigan, a liberal policy. In Indiana, a peculiar policy, somewhat on the community plan, tending to place all of the wife's real and personal property under the same marital rules, giving the wife a separate ownership in both, but restricting her power of transfer. In Illinois, laws similar to those of Massachusetts, but which, so far as the wife's control ia concerned, the courts seem more disposed to enlarge. So in Wisconsin, Minne- sota, and Kansas. In Iowa, rather more limited legislation on behalf of separate estate ; including a wholesome registry provision. In California, a policy savor- ing strongly of the Spanish community system, formerly prevalent there ; prop- erty of both husband and wife at the date of marriage, or acquired from others during coverture, being regarded as the separate property of each ; property otherwise acquired during coverture, as the common property of both. In Ne- vada, similar laws. In Oregon, the exemption of the wife's property from liabiUty for her husband's debts, a principle engrafted upon the fundamental law of that State ; with a registry system in force. In Nebraska, liberal rights vested in married women. In Missouri, exemption of the wife's property from bability for her husband's debts, the legislation being directed rather to lands than personal estate. In Kentucky (where the wife's separate estate has been fully recognized in equity), a somewhat peculiar restraint placed upon the bus- [223] * 213 HUSBAND AND WIFE. her benefit, and that they do not Hmit, but rather extend, her right to hold separate property. Thus it is held that the wife's equity to a settlement from her cJioses in action remains as before ; for the legislature intended to offer her Avhat was supposed to be a more valuable right, leaving it to her elec- tion to claim the benefit of the act or to assert her equity to a settlement without regard to its provisions.^ So property purchased with funds held to her separate use, or with the proceeds or income thereof, is her sejjarate prop- erty, even though her husband was the agent in making the purchase, and, as the rule is sometimes applied, notwithstand- ing the new securities stand in his own name, so long as it appears that she had not meant to surrender her separate rights.^ A married woman transferring stock after marriage, with her husband's acquiescence, from her maiden to her married name, may retain it as her separate property.^ The doctrine of merger, operating to the wife's disadvantage, be- cause of her husband's acts, is not favored.* And a * 214 liberal rule is laid down in Connecticut, * with respect to the j)roceeds of real estate (which by statute are secured to the wife), while they lie in the bank for safety or remain in cash in the wife's possession awaiting an oppor- band's marital rights so as to protect the wife's property, prima facie, from Uability for his debts, while limiting the husband's liability for her antenuptial debts. Marital rights oi the wife are favored in Tennessee so far as to shield her property from tlie husband's debts ; but not so as to vest the control in her. In Arkansas, a liberal policy prevails, with apparent!}' reasonable bounds ; and here a registry system exists. Important changes are now going on in the legislation of the Southern States, and it appears likely that their laws will be brouglit into conformitj' with the general American system in this respect. Under the Georgia Constitution of 1868, the wife may purchase, hold, and con- vey property, contract, sue, and be sued, as a single woman ; her rights are very extensive. Huff v. Wrigiit, 39 Geo. 41. See latest statutes of the different States above referred to ; and see Cartwright i;. Holhs, 5 Tex. 152; Childress V. Cutter, 16 Mis. 24 ; Panaud v. Jones, 1 Cal. 488 ; Cutter v. Waddingham, 22 Mis. 206. 1 Blevins i;. Buck, 26 Ala. 292. ■J Hutchins v. Colby, 43 N. H. 159 ; Kirkpatrick i;. Bauford, 21 Ark. 268. And see Teller v. Bishop, 8 Minn. 226; Leland v. Whitaker, 23 Mich. 324; Marsh v. Marsh, 43 Ala. 677; Fowler v. Rice, 31 Ind. 258 ; Pike v. Baker, 53 111. 163; Vreeland v. Vreeland, 1 C. E. Green, 512; Dayton v. Fisher, 34 lud. 356. ' Mason v. Fuller, 36 Conn. 160. * Clark v. Tennison, 83 Md. 85. [ 224] i WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 214 tunity for investment.^ The natural increase and profits of a wife's separate estate, under our legislation, are usually hers and at her disposal during marriage as well as the property which produced the increase and profits.^ Leasehold prop- erty, too, may be held and enjoyed by the wife.^ The married women's acts, we may here add, raise new questions as connected with the husband's appropriation of his wife's personal property to himself, and especially con- cerning his reduction into possession of her incorporeal per- sonals or choses in action ; and evidence of the wife's consent is now required in many States before his act of appropriation shall be considered complete. For while, as we shall here- after see, she may bestow her goods and chattels uj^on him, under suitable circumstances, he can no longer go to work, as he could at the common law, and make his title complete without reference to her wishes.'* A married woman, in order to preserve her separate prop- erty, should keep it distinct from that of her husband ; and especially does the rule hold true in States where presump- tions are against her exclusive right. Thus it is held that if a married woman willingly allows her separate property to be so mixed into a common mass with that of the husband as to be undistinguishable, or acquiesces in leaving it so, it must as to her husband's creditors be treated as relinquished to him.^ A title to separate estate cannot be vested in the wife on her husband's credit, where the statutes only recognize her right to acquire from third persons, an}' more than it could by his money ; and if certain property be purchased in part from her own funds, and in part from her husband's, whatever the form of the investment, her title extends only to the amount of her investment.^ On the other hand, where the husband 1 Jennings v. Davis, 31 Conn. 134. 2 Williams v. McGrade, 13 Minn. 46 ; Hanson i\ Millett, 55 Me. 184. 3 Vandevoort v. Gould, 36 N. Y 639. < Vreeiaiid t-. Vreeland, 1 C. E. Green, 512 ; King v. Gottsclialk, 21 Iowa, 512 ; Haswell v. Hill, 47 N. H. 407. See ch. 5, supra. 6 Glover v. Alcott, 11 Mich. 470; Gross v. Reddy, 45 Penn. St. 406 ; Kelly V. Drew, 12 Allen, 107. « Hopkins v. Carey, 23 Miss. 54 ; AVortli v. York, 13 Ired. 206. See Barrou V. Barron, 20 Vt. 375 ; Haines v. Haines, 54 111. 74. 15 [ 225 ] * 214 HUSBAND AND WIFE. has kept her funds distinct from his, though changing invest- ments from time to time, her right to claim the property from his estate, upon surviving him, has been strongly asserted.^ Yet broad as they may often appear, these statutes are somewhat restrained by judicial construction. In Massachu- setts, Maine, California, Wisconsin, Illinois, and other States, the presumjDtion is still, in absence of suitable words, or cir- cumstances manifesting an intent on the j)art of those inter- ested to claim the benefits of the statute, that a married woman's property belongs to her husband as at the common law ; and his possession of the property undisputed and unex- plained, gives him the marital dominion.^ In Pennsylvania, the courts were at first disposed to rule otherwise, but they too have finally settled upon the same presumption.^ On the other hand, the New York courts approve the new system to its widest extent, thus far ; and it would appear that married women in that State are wellnigh emancipated altogether from marital restraints, so far as concerns their property, while the husband's own rights therein are exceed- ingly precarious.'* In New York and Mississippi it is held that the married women's act does not oust the original jurisdiction of courts of equity in cases affecting the separate estates of married women.^ Speaking of the legislation in the former State, the court observes that the statutes of 1848 and 1849 are but the 1 Fowler v. Rice, 31 Ind. 358. 2 Eklridge v. Preble, 34 Me. 148 ; Smith v. Henry, 35 Miss. 369 ; Alverson v. Jones, 10 Cal. 9 ; Farrell v. Patterson, 43 111. 52 ; Stanton v. Ivirsch, 6 Wis. 338 ; Smith V. Hewett, 13 Iowa, 94. Contra, Johnson v. Ilunyan, 21 Ind. 115; Stew- art V. Ball, 33 Mis. 154. 3 Cf. Gamber v. Camber, 18 Penn. St. 863 ; Winter v. Walter, 37 Penn. St. 157 ; Bear's Administrator v. Bear, 33 Penn. St. 525 ; Gault v. Baffin, 44 Penn. St. 307 ; with Goodyear v. Eumbaugh, 13 Penn. St. 480. And see Curry v. Bott, 53 Penn. St. 400 ; Richardson v. Stodder, 100 Mass. 528. But a convey- ance to a married woman's separate use does not create in her a separate estate by contract in opposition to her separate estate by statute, where a large por- tion of the purcliase-money came I'rom her separate statutory estate. Molton v. Martin, 43 Ala. 651. 4 Peters v. Fowler, 41 Barb. 467 ; Knapp v. Smith, 27 N. Y. 277. 3 Mitdiell V. Otey, 23 Miss. 236; Colvin v. Currier, 22 Barb. 371 [Strong, J., dissenting]. [ 226] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 214: legislative adoption of the equitable rules, and their applica- tion to all property of the wife whether legal or equi- table. " The evil complained of * was the too great * 215 subjection of the property of the wife, at common law, to the control of the husband and his creditors. The remedy was to apply the rule of this court, in respect to the separate property of married women, to all property belonging to the wife. It is true the property is thus converted into a legal estate, but it is none the less a separate estate^ independent of the husband.'" ^ How great the change which our legislation has wrought in the marital rights and duties relating to j)roperty as the common law defined them, will appear at a glance. Some of the married women's acts charge the wife's separate estate with articles of " family supply ; " though not unless she contracted for the articles, or unless at least her husband was destitute of the means of payment.^ So it is now found in many of the States that the husband's liability for his wife's antenuptial debts is either modified to the extent of property received through her or else abolished altogether ; her separate estate, if she have any, being made subject instead to their payment.'^ In Ohio and some other States, the husband's life-interest is protected from attachment dur- ing marriage ; and it is generally, though not uniformly, preserved, as well as his tenancy by the curtesy.* But, on 1 Colvin V. Carrier, ib. 382. And see Clawson v. CI;i\vson, 25 Ind. 229. 2 Cunningham v. Fontaine, 25 Ala. 644 ; Rogers v. Boyd, 33 Ala. 175 ; Finn V. Rose, 12 Iowa, 565. See Sharp i;. Burns, 35 Ala. 653 ; Callahan y. Patterson, 4 Tex. 61. Debt incurred in procuring a sub.stitute for husband who was drafted is not included among " necessaries " thus chargeable upon the wife. Ford v. Teal, 7 Bush, 156. See further Lawrence v. Sinnanion, 24 Iowa, 80. State aid to a soldier's wife is chargeable as above. Hammond v. Corbett, 51 N. H. 311. 8 Roundtree v. Thomas, 32 Tex. 286 ; Cannon v. Grantham, 45 Jliss. 88 ; Madden i'. Gilmer, 40 Ala. 637 ; Bryan v. Doolittle, 38 Geo. 255 ; Smiley v. Smiley, 18 Oliio St. 543; Bailey v. Pearson, 9 Fost. 77; Reunecker v. Scott, 4 Greene (Iowa), 185; Curry v. Shrader, 19 Ala. 831 ; Callahan v. Patterson, 4 Tex. 61. But as to Illinois, see Connor v. Berry, 46 111. 370. * Bachman v. Clirisman, 23 Penn. St. 162 ; Van Note v. Downey, 4 Dutch. 219 ; Rose v. Sanderson, 38 111. 247. In some States curtesy consummate is pro- tected, while the husband's usufruct during his wife's life is taken awav. Porch [227] * 215 HUSBAND AND WIFE. equity principles, if the trust by terms clearly exclude him, or if real estate, conveyed to the wife expressly for her sole and separate use, with power of disposal, be regularly dis- posed of by her before her death, the husband cannot have his curtesy therein. ^ Some married women's statutes have either taken away the husband's lialjility for his wife's misconduct, and very properly fastened it upon her separate estate ; or else limited his lia- bility for her frauds and injuries to that of a surety .^ So, too, the tendency of modern legislation is to secure to the wife's separate use all compensation in the nature of damages for injuries sustained by her through the negligence or mis- conduct of others.^ And in Ohio it is held that where the wife's separate property is destroyed by the wrongful acts of a third party ; as where her baggage is lost on a rail- * 216 road ; any judgment * she may recover therefor be- comes likewise her separate property.* Unlike the wife's separate estate in equity, the separate property of a married woman under American statutes seems sometimes to retain its qualities after her death. Her admin- istrator often claims it against her surviving husband.^ The husband, Avhile the marriage relation lasts, may become bound as trustee of her separate estate, not only by express appoint- V. Fries, 3 C. E. Green, 204. And see Lynde v. McGregor, 13 Allen, 182 ; Montgomery v. Tate, 12 Ind. 615. 1 See supra, p. 194 ; Stokes v. McKibbin, 13 Fenn. St. 267 ; Pool v. Blakie, 53 111. 495. 2 Brown v. Kemper, 27 Md. 666. Joinder of the husband is not necessary in torts and frauds of the wife relating to her separate estate. Baum v. Mullen, 47 N. Y. 577 ; Rowe v. Smith, 55 Barb. 417. Husband and wife cannot be indicted for larceny of one another's property under our married women's act, more than at common law. Thomas v. Thomas, 51 111. 162. 3 Waldo V. Goodsell, 33 Conn. 432 ; Moody v. Osgood, 50 Barb. 628 ; Knapp t',. Smith, 27 N. Y. 277. And the wife sues, in general, in her individual name for that purpose. Berger v. Jacobs, 21 IMich. 215 ; Ball v. Bullard, 52 Barb. 141 ; Chicago, &c., R. R. Co. v. Dunn, 52 111. 260. Otherwise in Shaddock v. Clifton, 22 Wis. 114; Pancoast v. Burnell, 32 Iowa, 394. And see State v. Hulick, 4 Vroom, 307. * Fierson v. Smith, 9 Ohio St. 554. Wife under some statutes may sue a liquor seller for damages caused her by selling liquors to her husband. Schnei- der V. Hosier, 21 Ohio St. 98. 6 Leland v. Whitaker, 23 Mich. 324. [228 J WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. *216 ment, but through niiplication, as under the equity rule.^ And since the opportunities afforded him for mixing up his property with hers are very great, in the present raw age of our legislation, we often find her, upon surviving him, a general creditor against his estate, or the claimant of a trust fund, which cannot easily be identified.^ How far the acts relating to the property of married women are qualified by constitutional restraints has been frequently discussed in late years. The Constitution of the United States expressly forbids the States to pass any ex j^ost facto law, or law impairing the obligation of contracts.^ The decisions are uniform to the effect that the late statutes cannot affect rights of the husband already vested under a marriage pre- viously solemnized."^ But they go no * further ; for, as * 217 it has been observed, the marriage contract does not imply that the husband shall have the same interest in the future acquisitions of the wife that the law gives him in the property she possesses at the time of the marriage, but rather that she shall have whatever interest the legislature, before she is invested with them, may think proper to prescribe.^ As to whether the married women's acts can affect tlie wife's property in action not already reduced into possession authori- ties are divided.*^ 1 Walter v. Walter, 48 Mis. 140 ; Hall v. Creswell, 46 Ala. 4G0. In Connect- icut, a husV)and is specially clesiy;nated by law as iiis wife's trustee. Sherwood V. Siierwood, 32 Conn. 1. So in Alabama. Marsh v. Marsh, 43 Ala. (577. - Martin v. Curd, 1 Bush, 327 ; Hause v. Gilger, 52 Penn. St. 412 ; Fowler v. Rice, 31 Ind. 258. 3 Const. United States, art. 1, § 10. * Carter v. Carter, 14 S. & M. 59 ; Eldridge v. Preble, 34 Me. 148 ; Maynard V. Williams, 17 Ala. 676 ; Snyder v. Snyder, 3 Barb. 021 ; Perkins v. Cottrell, 15 Barb. 446 ; Ratcliffe v. Dougherty, 24 Miss. 181 ; Jenney v. Gray, 5 Ohio St. 45 ; Roby v. Boswell, 23 Geo. 51 ; Burson's Appeal, 22 Penn. St. 164 ; Tally v. Tiiorapson, 20 Mis. 277; Peck v. Walton, 26 Vt. 82; Tyrson v. Mattair, 8 Fla.'. 107; Quigley v. Graham, 18 Ohio St. 42; Farrell v. Patterson, 43 III. 52; Coombs V. Read, 16 Gray, 271. See Love v. Robertson, 7 Tex. 6. Nor rights acquired subsequently under a foreign government. Dubois i'. Jackson, 49 III. 49. * Sleight V. Read, 18 Barb. 159 ; Southard v. Plummer, 36 Me. 64. •» Goodyear v. Rumbaugh, 13 Penn. St. 480 ; Mellinger v. Bausnian,45 Penn. St. 522; Henry v. Dilley, 1 Dutch. 302, maintaia the affirmative. Wcstervelt v. [ 229 ] *2n HUSBAND AND WIFE. A corresponding rule of constitutional limitations applies to the rights and liabilities of the wife under these acts, as to her title by gift or purchase, and as to her dominion over her prop- erty generall3^^ In Mississippi, it is held that property purchased by the hus- band after the passage of the act with money acquired by the wife by gift or labor before it, even though bought expressly for the wife's benefit and in her name, belongs to the husband.^ In Alabama, separate estates created by deed before the statute went into effect remain unaffected thereby, though the mar- riage took place subsequently.^ In New York, judgments re- covered against a husband prior to the married women's act are not a lien upon the wife's subsequently acquired property.^ In Missouri, the act exempting property of the wife from lia- bility for the husband's debts does not affect debts contracted prior to the passage of the act and after the wife came into possession of the property.^ In New York, it is held that the legislature may fasten upon the wife's separate bank stock a personal liability to the extent of such stock.^ Also that interest, accrumg subsequently to the married women's act, on property previously vested in the husband, continues his.'^ The California statutes em- * 218 brace * property held as separate by women married after the passage of the act without reference to the time when it was acquired.^ There are later American decisions which rest upon strictly equitable rules ; and increasing liberality toward the wife is Gregg, 2 Kern. 202 ; Ryder v. Hulse, 24 N. Y. 372 ; Stearns v. Weathers, 30 Ala. 712, maintain the negative. A vested interest in a contingent remainder is an interest in tlie husband wliich will be saved from the operation of a subsequent " married women's act." Dunn v. Sargent, 101 Mass. 1 Bryant v. Merrill, 55 Me. 515; Clark v. Clark, 20 Ohio St. 128; Lee v. Lan- ahan, 58 Me. 478. a Sliarp V. Maxwell, 30 Miss. 442. 8 Willis V. Cadenliead, 28 Ala. 472. And see Hardy v. Boaz, 29 Ala. 168. , * Sleight V. Read, 18 Barb. 159. 5 Cunningham v. Gray, 20 Mis. 170. e Matter of Reciprocity Bank, 29 Barb. 369. 7 Ryder v. Hulse, 33 Barb. 264 ; s. c. on appeal, 24 N. Y. 372. See Savage v. O'Neil, 42 Barb. 374. 8 Maclay v. Love, 25 Cal. 367. See Morrison v. Norman, 47 111. 477. [ 230] WIFE'S SEPARATE ESTATE; AMERICAN DOCTRINE. * 218 manifested therein.^ Thus in some States a separate estate in personal property is held to be created in a married woman by a parol gift, where the evidence to establish it is clear and satisfactory .2 In Massachusetts, a separate use is created where the husband deposits money in a savings bank in the name and to the credit of his wife, declares that the money is hers and that he wishes it put in her name, and delivers the deposit book to her ; so, too, when he keeps one bank account there in his own name, and another in his wife's name.^ As to words which will create a separate use in a convej'ance, any language now suffices, clearly expressing an intent to create it, whatever the technical words ; but not, per se, words like " for the use and benefit of ; " nor even conveyance to a wife " in her own right." ^ Trust, to pay income to a wife " for and during the joint lives of her and her husband, taking her receipt therefor," is held to give her a sole and separate estate in the income.^ 1 See, as to words which constitute a separate estate, Wilson v. Bailer, 3 Strobh. Eq. 258 ; Clark v. Maguire, 16 Mis. 302 ; Goodrura v. Goodrum, 8 Ired. Eq. 313 ; Denson v. Patton, 19 Geo. 577 ; Bradford v. Greenway, 17 Ala. 797. i Betts V. Betts, 18 Ala. 787 ; Watson i-. Broaddus, 6 Bush, 328 ; Spaulding v. Day, 10 Allen, 96. ' Fisk V. Cushnian, 6 Cush. 20. But contra, where a deposit is made without the husband's privity. McCubbin v. Patterson, 16 Md. 179. And see Ryder v. Hulse, 33 Barb. 264 ; Richardson v. Merrill, 32 Vt. 27 ; Hobensack v. Hallraan, 17 Penn. St. 154 ; Gaines v. Poor, 3 Met. (Ky.) 503 ; Clark v. Bank of Missouri, 47 Mis. 17. * Prout V. Roby, 15 Wall. 471 ; Merrill i;. Bullock, 105 Mass. 486 ; Guishaber V. Hainnan, 2 Bush, 320. See Williams i'. Avery, 38 Ala. 115; Bowen v. Le- bree, 2 Bush, 112. 5 Charles v. Coker, 2 S. C n. s. 122. [231] *219 HUSBAND AND WIFE. *219 * CHAPTER XII. THE wife's dominion OVER HER SEPARATE ESTATE. The right to enjoy property carries with it, as a necessary incident, the right of free disposal. All other things then being equal, we shall expect to find that married women, when allowed to hold estate to their separate use, are per- mitted to sell, convey, give, grant, bargain, or otherwise dis- pose of it ; and further, to encumber it as they please. Public policy may, however, restrain their dominion. We shall treat in this chapter, y^/'s^, of the English, and second^ of the Ameri- can, rule on this subject. First. In England, it is the general rule, so far at least as concerns personal ^Ji'operty, that from the moment the wife takes the property to her sole and separate use, from the same moment she has the sole and separate right to dispose of it ; for upon being once permitted to take personal property to her separate use, as a feme sole, she takes it with all its priv- ileges and incidents, including the jus disponendi.^ And while she may be restrained by the language of the instrument under which her title is acquired, yet the intention to restrain her must be clearly expressed ; or else she may deal with the prop- erty as she pleases, either by acts inter vivos or by wilL^ Her power of disposition is not confined to interests vested in pos- session, but extends to reversionary interests settled to her separate use.^ 1 Fettiplace v. Gorges, 1 Ves. Jr. 48 ; 3 Bro. C. C. 9 ; Peachey Mar. Settl. 261, 262. See 20 & 21 Vict. c. 57, the " reversionary act." 2 Ricii V. Cockell, 9 Ves. 369 ; Moore v. Morris, 4 Drew. 38 ; Darkin v. Dar- kin, 17 Beav. 581 ; Caton v. Hideout, 1 Mac. &Gord. 601. 3 2 Bright Hus. & Wife, 222 ; Macq. Hus. & Wife, 295 ; Sturgis v. Corp, 13 Ves. 192; Headen v. Roslier, 1 M'Cl. & Y. 89; Donue v. Hart, 2 Russ. & M. 360. [232] 1 WIFE'S DOMINION OVER HER SEPARATE ESTATE * 220 * The same principle applies to the income and profits * 220 of the wife's separate property. The wife has the same control over her savings out of her separate estate, as over the separate estate itself; " for," to use the somewhat involved metaphor of Lord Keeper Cowper, so often quoted, "the sprout is to savor of the root, and to go the same way." i Where the wife's separate property consists of real estate, her power of disposition is affected by technical difficulties, as to the method of executing conveyances.^ But it has been suggested that, according to the principle of modern equity cases, the heir ought to be treated as a trustee, in case the wife had conveyed her beneficial interest by deed executed by herself alone, and that thus her sole conveyance would be allowed to operate.'^ The wife may enter into contracts with reference to her separate property in like manner, and with the same effect as ?kfeme sole. Formerly it was otherwise ; and for a long period the English courts of equity refused to married women, hav- ing separate estate, the power to contract debts.^ But the unfairness of permitting a wife to hold and enjoy her separate property after she had incurred debts upon the faith of it, soon became evident; as well as the inconvenience she suffered in * being unable to find credit where * 221 she meant to deal fairly. So the courts felt compelled after a while to admit that she might in equity charge her separate estate by a written instrument, executed with a cer- tain degree of formality, such as a bond under her hand and 1 Gore V. Knight, 2 Vern. 535 ; s. c. Prec. in Cli. 255. See also Messenger !;. Clarke, 5 Exch. 392 ; Peachey Mar. Settl. 2G2 ; Newlands v. Paynter, 10 Sim. 377 ; s. c. on appeal, 4 M. & Cr. 408 ; Humpliery v. Ricliards, 2 Jur. n. s. 432. ■■i 2 Roper IIus. & Wife, 182; 1 Bright IIus. & Wife, 224. See Ex parte Ann Shirley, 5 Bing. 22(3, cited in Macq. Hus. & Wife, 296. See also Peachey Mar. Settl. 267 ; Harris v. Mott, 14 Beav. 169. 3 Macq. Hus. & Wife, 296, 297 ; 2 Story Eq. Juris. § 1390, and cases cited ; 3 Sugd. V. & P. App. 02; Newcomen v. Hassard, 4 Ir. Ch. 274; Burnaby i-. Griffin, 3 Ves. 266 ; Peachey Mar. Settl. 268. The statute referred to as raising technical difKculties in real estate is 3 & 4 Will. 4, c. 74. * Vaughan v. Vanderstegen, 2 Drew. 180; Peachey Mar. Settl. 269; New- comen V. Hassard, 4 Ir. Ch. 274. [233] * 221 HUSBAND AND WIFE. seal.^ One precedent in the right direction leads to another, and soon less formal instruments were brought one after an- other under this rule ; promissory notes, bills of exchange, and lastly written instruments in general.^ Even here the court could not safely intrench itself ; for the inconsistency of draw- ing distinctions between the different sorts of engagements of a married woman having separate estate, could be readily shown ; but it made a halt. The doctrine of an equitable appointment was alleged to support the new distinction.^ Sound reasoning at last proved too strong an antagonist ; this position was abandoned ; and it may now be considered the settled doctrine of the equity courts of England that the engagements and contracts of a married woman are to be re- garded as debts, and that her property so held is liable to the payment of them, whether the contract be expressed in writ- ing or not ; and all the more so, if she lives apart from her husband, and the debt could only be satisfied from her sepa- rate property.^ " Inasmuch as her creditors have not the means at law of compelling payment of those debts," says Lord Cottenham, " a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied." ^ But while the contract for payment of money, made by a married woman having separate estate, is called a debt, it is only a debt sub modo, when compared with the debt of * 222 a man *or an unmarried woman. It cannot be enforced against her at law ; and Lord Cottenham's language indicates that it is enforceable in equity, not on the ground 1 Biscoe V. Kennedy, 1 Bro. C. C. 17 ; Hiilme v. Tenant, 1 Bro. C. C. 16. 2 See Murray v. Barlee, per Lord Brougham, 3 Myl. & K. 210 ; Bullpin v. Clarke, 17 Ves. 865; Stuart v. Lord Kirkwall, 3 Madd. 387 ; Master v. Fuller, 1 Ves. Jr. 513 ; Gaston v. Frankura, 2 De G. & Sm. 561 ; s.c. on appeal, 16 Jur. 507 ; Peachey Mar. Settl. 270, and cases cited. 3 Field V. Sowle, 4 Kuss. 112. * Peachey Mar. Settl. 271, 272, and cases cited ; Vaughan v. Vanderstegen, 2 Drew. 184; Owens v. Dickenson, Craig & Phil. 48; Macq. Hus. & Wife, 303; Picard v. Hine, L. R. 5 Ch. 274. But see Newcomen v. Hassard, 4 Ir. Ch. 274; 1 Sugd. Pow. 206, 7th ed. 6 Owens V. Dickenson, Craig & Phil. 48. [234] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 222 that she incurred a personal obligation, but because there is property upon which the obligation may be fastened. Hence it is said that there can in no case be a decree against a mar- ried woman in personam ; the proceedings are simply against her separate property in rem} And though she is a necessary party to a suit to enforce payment against her separate estate, yet, if that estate be held in trust for her separate use, the suit must be against the trustees in whom that property is vested ; the decree in such case being rendered, not against her, but against the trustees, to compel payment from her separate estate. Moreover, if the wife survive her husband, although the creditors may still enforce their demand in equity against her separate estate, yet her person and her general property remain as completely exempted from liability at law and in equity, as in other cases of debts contracted by her during coverture.^ Here, however, the fictions of equity create a new practical difficulty. For if the wife be a feme sole at all, with refer- ence to her sejDarate property, must she not have power to bind herself personally ? In Stead v. Nelson, a husband and wife undertook, for valuable consideration, by writing under their hands, to execute a mortgage of her separate estate. The husband died. Lord Langdale held that the surviving wife was bound by the agreement, and ordered "a specific per- formance.^ Certainly the ground of this decision must have been that the obligation was not upon her property alone, but upon her person. At the same time, it is readily admitted that there are reasons of jDolicy why the wife should be exempted from personal execution * during coverture. * 223 This latter view accords with the common-law practice i Hulme V. Tenant, 1 Bro. C. C. 16 ; Ashton v. Aylett, 1 Myl. & Cr. Ill ; Macq. Hus. & Wife, 304 ; Teachey Mar. Settl. 273. But see Keogli v. Cathcart, 11 Ir. Ch. 285. 2 Vaughan v. Vanderstegen, 2 Drew. 184; Peachey Mar. Settl. 273; Macq. Hus., & Wife, 304. But her promissory note, given during coverture so as to bind her separate estate, is a good consideration for anotiier promissory note given after lier husband's deatli for a balance then due, tliough the former note be barred by the statute of limitations. Latouche v. Latouche, 3 Hurl. & Colt. 576. 3 2 Beav. 245; Macq. Hus. & Wife, 304. [ 235 ] * 223 HUSBAND AND WIFE. in analogous cases.^ Perhaps, then, the more consistent view of the subject would be that the wife incurs a personal obli- gation, morally and legall}'-, on such contracts, express or implied, as she may make during coverture with reference to her separate property ; but that the general disabilities of coverture interpose obstacles to the enforcement of remedies by a creditor, which obstacles the courts of equity feel bound to regard ; and hence that they confine the remedies to her separate estate, upon the faith of which, it may reasonably be presumed, the creditor chose to rely. Property limited to such uses as a married woman shall appoint is not separate estate. There is a difference between property subject merely to her power of appointment, and property settled to her sole and separate use. In the former instance she may dispose of the estate by executing an instru- ment according to the strict letter of her authority. In the latter, she is invested with a beneficial interest and enjoy- ment, however restricted may be the dominion allowed her by the donee. A power of appomtment is much the same as any other special power, and on such a principle, not upon the ground that she is a feme sole as to the propert}', the courts both of equity and of law recognize her right to exe- cute without joining her husband. And indeed in some cases, under her trust, she may pass the absolute property in a chattel by gift and manual delivery without writing at all, because she has been so empowered. She cannot charge the property with her debts or affect it by her general contracts, any more than she can other property which is not hers.^ On the other hand, the wife's disposition of her separate estate does not arise from the exercise of a jDower, but it is the ex- ercise of a dominion over that estate, unknown to the common law and created by a court of equity, whose rules provide not only for her dominion over it, but also for the rights of those in favor of whom that dominion shall be exercised.^ A 1 Sparkes v. Bell, 8 B. & C. 1. '-i Vaughan v. Vanderstegeu, 2 Drew. 378. See Farrington v. Parker, L. R. 4Eq. IIG. 3 Digby V. Irvine, 6 Ir. Ch. 149. See Peachey Mar. Settl. 27G ; Brown v. [236] WIFE'S DOMnaON OVER HER SEPARATE ESTATE. * 224 * power of appointment given to a married woman and * 224 a trust for her separate use are then perfectly distinct, even when they affect succeeding interests in the same prop- erty. The separate estate of married women may be affected, and their rights barred, by active participation in breaches of trust.^ But on the other hand, to preclude the wife from the right to relief simply because she has improperly permitted her husl)and to receive the trust funds, would be to defeat the very purpose for which the trust was created ; namely, the protection of the wife against her husband. Hence, ac- cording to the latest and best authorities, the court must be satisfied that the husband has not in any degree influenced her acts and conduct, before it holds her separate estate to be affected ; and this upon the most jealous investigation.^ But a married woman, one of several devisees in trust for sale, cannot bind herself to convey- ; and upon such a contract on her part specific performance will not be enforced against her.^ As a general rule, it may be laid down that wherever a married woman, having property settled to her separate use, enters into any contract by which it clearly appears that she intends to create a debt as against herself personally, it will be assumed that she intended that the money should l)e paid out of the only property by which she could fulfil the engage- ment.* Thus, in a case before Lord Brougham, the question came up for the first time, whether a married woman could bind her separate estate for legal expenses incurred by her, Bamford, 1 Ph. 620 ; Sliattock i-. Sliattock, L. R. 2 Eq. 182; Hancliett v. Bris- coe, 22 Beav. 496. 1 Peacliey Mar. Settl. 276 ; Ryder v. Bickerton, 3 Swanst. 80, n. ; Lord IMont- ford V. Lord Cadogan, 19 Ves. G35. ^ Per Sir Geo. Turner, Huglies v. Wells, 9 Hare, 773. And see authorities, supra ; Kellaway v. Johnson, 5 Beav. 319 ; Cocker v. Quayle, 1 Russ. & M. 636 ; Brewer v. Swirles, 2 Sin. & Gif. 219. Covtra, Whistler v. Newman, 4 Ves. I2y, doubted in Parkes v. White, 11 Ves. 223. ■ 3 Avery v. Griffin, L. R. 6 Eq. 606. * Earl V. Ferris, 19 Beav. 69. [237 ] * 224 HUSBAND AND WIFE, upon her retainer and promise to pay, there having been no reference to her sej^arate estate in the agreement ; and it was held that she could, and that the bill must be paid from her separate estate.^ But on the other hand, in contracts where the husband is the interested party, the court will not * 225 make the wife's separate property * liable, if that fact be made plain ; notwithstanding she may have had some agency in the transaction.^ Nor is her separate estate hable for the expenses of Htigation incurred for the children as her husband's agent.^ We need hardly add, that a married woman, having sep- arate estate, without a clause restraining her right of disposi- tion, may charge and encumber it in any manner she chooses, either as security for her husband's debts, her own, or those of a stranger ; provided she does not appear to have been imposed upon in the transaction. And if her property is in the hands of trustees, they are bound to fulfil her engage- ment.* And where she mortgages it, the court will regard the true nature of the transaction.^ A married woman may bind the corpus of her separate property by her compromise of a suit which she has instituted by her next friend.^ She may also contract for the purchase of an estate, and even though the contract makes no reference to her separate property it will be bound by her agreement^ So her contract to sell or mortgage her life-interest in her separate estate will be specifically enforced against her.* Both she and her husband must be parties to a suit concern- ing her separate property.^ And it is held that the husband, 1 Murray v. Barlee, 3 Myl. & K. 209. And see "Waugh v. Waddell, 16 Beav. 621 ; Bolden v. Nicholay, 3 Jur. n. s. 884. - TuUett V. Armstrong, 4 Beav. 319. 3 In re Pugh, 17 Beav. 336. * Clerk V. Laurie, 2 Hurl. & Nor. 199 ; Peachey Mar. Settl. 292. See Homer V. Wheelwright, 2 Jur. s. 8. 367. * Gray v. Dowman, 6 W. R. 671. 6 Wilton v. Hill, 25 L. J. Eq. 156. ' Dowling V. Maguire, Lloyd & Goold, temp. Plunket, 1 ; Crofts v. Middleton, 2 Kay & Johns. 194, reversed on appeal. 8 Wainwright v. Hardisty, 2 Beav. 363. 9 Holmes v. Penney, 3 Kay & Johns. 91. And see Peachey Mar. Settl. 293- 296, and cases cited ; Macq. Hus. & Wife, 297. [ 238] WIFE'S DOMINION OVER ITER SEPARATE ESTATE. * 225 by making her a party in respect to her separate estate, ad- mits it to be such.^ The rule as to the wife's power to charge her separate estate for her debts is briefly and clearly stated in a very recent case, to this effect : If a married woman, having separate property, enters into a pecuniary engagement, whether by ordering goods, * or otherwise, which (if she were * 226 a feme sole} would constitute her a debtor, and in en- tering into such engagement she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable ; and the ques- tion whether the obligation was contracted in this manner must depend upon the facts and circumstances of each par- ticular case.^ A married woman, save so far as she is restrained from an- ticipation by the terms of the trust, may bestow her separate property upon her husband by virtue of her right of disposal ; although at common law no such thing is known as a gift between husband and wife. She may likewise transfer it to him for a valuable consideration.^ But acts of this sort are very closely scrutinized ; and undue influence on the part of the hus- band, or the fraud of both husband and wife upon creditors of either, will often explain the motive of such transactions, and suffice for setting them aside in equity. When the wife has made a gift to her husband she will be precluded, after his death, from charging his estate with what he so received.'* If she allows him to take her separate property, without making a claim to it, or permits him to receive her separate income and apply it to the wants of the family, she will in 1 Earl V. Ferris, 19 Beav. 69. 2 Ter Kindersley, V. C, Matthewman's Case, L. R. 3 Eq. 787. In this case the wife's corporation shares were held liable to assessment. And see Johnson V. Gallagher, 3 De G., F. & J. 494. 3 Lyn V. Ashton, i Russ. & M. 190 ; Macq. IIus. & Wife, 297. * Paulet V. Delavel, 2 Ves. Sen. 6G3 ; 2 Roper Hus. & Wife, 220 ; 1 Madd. Ch. 472. [239] ♦226 HUSBAND AND WIFE. general be presumed to have assented to the arrangement.^ But if the circumstances do not warrant the inference that the wife has assented to, or acquiesced in, the husband's re- ceiving her income, or in his mode of aj)plying it, she will be entitled to reimbursement out of his estate.^ So long as her transfer of separate property to her husband remains incom- plete, she can revoke her consent to the gift.^ While the property continues to be for her sole and separate use, she is entitled to the same protection against her husband's inter- ference that a single woman would have against a stranger, and this right passes to her assignee under any assignment excluding her husband's dominion which she may have right- fully made.'^ And where a wife joins her husband in encum- bering her separate estate partly for his benefit and parth' for her own, it will not readily be presumed that she designed to give the whole of the proceeds to him ; for which reason the trustee employed by them should not treat the money as that of the husband alone. ^ * 227 * By the ordinary rule of the English chancery courts a wife is precluded from recovermg the arrears of income on her separate estate for more than a year, upon the ground of a supposed gift to her husband.^ Second. In this country whenever the wife's separate use has been admitted as a doctrine of equity, independently of stat- ute, her right of dominion has also been recognized. The celebrated New York case of Jaques v. Tlie Methodist Episcopal Church, which may justly be placed foremost among the very few important American chancery decisions of this class, 1 Square i'. Dean, 4 Bro. C. C. 326; Beresford v. Archbishop of Armagh, 13 Sim. 643; Bartlett v. Gillard, 3 Russ. 149; Carter v. Anderson, 3 Sim. 370. 2 Parker v. Brooke, 9 Ves. 683 ; Macq. Hus. & Wife, 298. 3 Penfold V. Mould, L. R. 4 Eq. 562. 4 Allen V. Walker, L. R. 5 Ex. 187. 5 Jones V. Cuthbertson, L. R. 7 Q. B. 218. ^ Peachey Mar. Settl. 291, and cases cited ; Rowley v. Unwin, 2 Kay & Johns. 142; Arthur v. Arthur, 11 Ir. Ch. 513. And see Dalbiac v. Dalbiac, 16 Ves. 116 ; Fleet v. Perrins, L. R. 3 Q. B. 536 ; Parker v. Brooke, 9 Ves. 583 ; Caton v. Rideout, 1 Mac. & Gord. .599 ; Beresford v. Archbishop of Armagh, 13 Sim. 643 ; Howard v. Digby, 2 CI. & Fin. 634 ; Symes v. Lee, 26 L. J. Eq. 665. [240] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 227 established not only that a feme covert^ with respect to her separate estate, was to be regarded in equity as a feme sole, so that she might dispose of it without the assent and con- currence of her trustee, unless specially restrained by the instrument under which it had been acquired — a position not likely to be disputed at this dnj ; but, furthermore, that though a particular mode of disposition was specifically pointed out in the instrument, it would not preclude the wife from adopting any other mode of disposition unless she was by express language specially restrained to that particular mode.i In this latter doctrine Chancellor Kent (whose judg- ment in the lower court had been reversed) did not concur : adopting the more conservative view with reference to such restrictions. The distinction is rather a nice one, and suc- cessive American decisions in other States have generally sustained the Chancellor's views ; but the cases are, on the whole, conflicting.^ * In the exercise of her right of dominion the wife * 228 may also, unless specially restrained by the trust, bestow her separate property upon her husband, give him the use and income thereof, or bind it for his debts.^ It is also well settled, both under our married women's acts and indepen- dently of them, that a married woman may execute a mort- gage jointly with her husband to secure his debts : in which case she is to be regarded as his surety ; and this applies to 1 17 Johns. 548; Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450; 3 ib. 77. 2 See Tullett v. Armstrong, referred to supra, for the English doctrine. For American authorities, see 2 Kent Com. 165, 166, and cases cited in last edition ; Shipp V. Bowman, 5 B. Monr. 163 ; Tarr v. Williams, 4 Md. Ch. 68 ; Nix v. Brad- ley, 6 Ricli. Eq. 53; Wylly v. Collins, 9 Geo. 233 ; Doty v. Mitchell, 9 Sm. & M. 435; Morgan o. Elam, 4 Yerg. 375; Ewing v. Smith, 3 Desaus. 417; McClintic V. Ocheltree, 4 W. Va. 249 ; Kimm v. Weippert, 46 Mis. 532; Lancaster v. Dolan, 1 Rawle, 231 ; Harris v. Harris, 7 Ired. Eq. Ill ; Hume v. Hord, 5 Gratt. 374; Hicks V. Johnston, 24 Geo. 194 ; Andrews v. Jones, 32 Miss. 274 ; Leaycraft v. Hedden, 3 Green Ch. 512 ; Penn. Co. v. Foster, 35 Penn. St. 134 ; Ciiew v. Beall, 13 Md. 348. The clause of restraint upon anticipation does not seem to have been applied much in American cases of tliis sort, if at all. 3 2 Kent Com. Ill, and cases cited ; 2 U. S. Eq. Dig. Husband and Wife, 18 ; Dallam v. Walpole, Pet. C. C. 116 ; Ciiarles v. Coker, 2 S. C. n. s. 123. He may be purchaser at a sale properly made under order of chancery, tiiougli the trus- tee of his wife. Norman v. Norman, 6 Bush, 495. 16 [ 241 ] * 228 HUSBAND AND WIFE. lands held in her right, whether conveyed to her separate use or not.^ And her separate estate will be bound by any debt properly contracted by her, even though her husband should be the creditor .^ So, too, she may bind her separate estate in person, or by her agent, without the assent of her trustee, if the instru- ment creating the trust contains no restriction upon her power ; and the trustee will be bound by her exercise of dominion, so far as concerns the estate in his hands.^ But if the instrument requires the written approval of the trustee expressed in a certain manner, that requirement must be complied with to make even the joint conveyance of husband and wife effectual.^ A married woman may, by her contracts, bind her separate property, and it is sufficient in such cases that there was an intention to charge her separate estate. By contracting a debt during coverture, she furnishes a presumption of that intention.^ But where the debt is contracted before * 229 marriage the * remedy against the separate estate of the wife is suspended during marriage.^ In general, it is to be observed that the American equity doctrine of the wife's power to charge her separate estate, independently of * Deraarest i>. Wynkoop, 3 Johns. Ch. 129 ; Van Home v. Everson, 13 Barb, 526 ; Vartie v. Underwood, 18 Barb. 561 ; Bartlett v. Bartlett, 4 Allen, 440 ; Young V. Graff, 28 111. 20 ; Watson v. Tlmrber, 11 Mich. 457 ; Eaton v. Nason, 47 Me. 132 ; Spear v. Ward, 20 Cal. 659 ; Ellis v. Kenyon, 25 Ind. 134 ; Green V. Scranage, 19 Iowa, 461 ; Wolff v. Van Meter, 19 Iowa, 134. And see Leavitt V. Peel, 25 N. Y. 474. * Gardner v. Gardner, 7 Paige, 112. She may anticipate and encumber rents settled in trust for her separate use. Cheever v. Wilson, 9 Wall. 108. 3 North American Coal Co. v. Dyett, 7 Paige, 1 ; Gibson v. Walker, 20 N. Y. 476. And see Lewis v. Harris, 4 Met. (Ky.) 353. But see Noyes v. Blakeman, 2 Seld. 567 ; 8. c. 8 Sandf. 531, as to the effect of New York statute relative to the declaration of trusts. * Gelston v. Frazier, 26 Md. 329. See as to lapse of time, Frazier v. Gelston, 85 Md. 298. 5 2 Kent Com. 164, and cases cited ; Fire Ins. Co. v. Bay, 4 Comst. 9 ; Van- derheyden v. Mallory, 1 Comst. 452; 2 U. S. Eq. Dig. Husband and Wife, 19; Dallas V. Heard, 32 Geo. 604 ; Withers v. Sparrow, 66 N. C. 129. 6 Vanderheyden v. Mallory, 1 Comst. 452. But see Dickson v. Miller, US. & M. 694. [242] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 229 the married women's acts, has fluctuated somewhat, as have likewise the English cases. But the doctrine of the wife's dominion over her separate estate is at this day more generally asserted with reference to the mar- ried women's acts ; and some of the later cases show important variations from the equity rule, as we shall proceed to notice. The late case of Yale v. Dederer is an important one, as es- tabhshing in a leading American State, under cover of legis- lative policy, a new doctrine, at variance with that of the modern English equity courts, and apparently contrary to its own precedents.^ It appeared that the husband had offered his promissory note to the plaintiff in payment of certain cows which he wished to purchase ; that the plaintiff, doubting his solvency, required him to procure his wife to unite in a note with him. This he did. The note was subsequently renewed. At the time of signing the note Mrs. Dederer remarked that if her husband was not able to pav it, she was. It was estab- lished that she had sufficient real Estate, held in her own right, to satisfy the claim ; and the judge, who heard^the evidence, stated in his finding that " the defendant, Mrs. Dederer, in- tended to charge, and did expressly charge, her separate estate for the pa3'^ment of the note." The Court of Appeals nevertheless held that Mrs. Dederer was a mere surety for her husband ; and that though it was her intention to charge her separate estate, such intention did not take effect. The principle of the decision was this : that, in order to create a charge upon the separate estate of a married woman, the in- tention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the * direct benefit of the estate * 230 itself. Later New York decisions follow the rule of this case, and require a distinct written obligation to bind the wife where the debt is not contracted for the direct benefit of the estate. 2 I Yale V. Dederer, 18 N. Y. 2G5 ; s. c. 22 N. Y. 450. The principle in these two cases differs. 'i White V. McNett, 33 N. Y. 371 ; Ledlie v. Vrooman, 41 Barb. lO'J ; White v. Story, 43 Barb. 124 ; Merchants' Bank v. Scott, 59 Barb. G41. , [ 243 ] * 230 HUSBAND AND WIFE. But it does not appear that this doctrine has found favor in all the other States. In Wisconsin, the decision of Tale V. Dederer is unsparingly condemned.^ And the more com- mon rule in this country still seems to be — though we may not regard the principle as by any means a settled one — that the wife's separate estate will be held liable for all debts which she by implication or expressly, by writing or parol, charges there- on, even if not contracted directly for the benefit of the estate.^ For the wife's debts are charged in justice upon her separate estate, not because of her power to make a valid written or verbal contract, but because it is right that her debts should be f)aid.3 The latest New York cases accede to the position 1 Todd V. Lee, 15 Wis. 365. 2 Pentz V. Simonson, 2 Beasl. 232 ; Grapengether v. Fejervary, 9 Iowa, 1G8 ; Rogers v. Ward, 8 Allen, 387 ; Mayo v. Hutchinson, 57 Me. 346 ; Major v. Symmes, 19 Ind. 117; Oakley i'. Pound, 1 McCart. 178; Miller v. JS^ewton, 23 Cal. 554 ; 2 Kent Com. 164 ; 2 Story Eq. Juris. §§ 1398, 1401. See Koontz v. Nabb, 16 Md. 549 ; Knox v. Jordan, 5 Jones Eq. 175 ; McFaddin v. Crumpler, 20 Tex. 374. In Rhode Island, a narrow rule is adopted. Cozzens v. Whitney, 3 R. I. 79. ^ Cummins c. Sharpe, 21 Ind. 331 ; Pentz v. Simonson, 2 Beasl. 232 ; Glass V. Warwick, 40 Penn. St. 140. But see Maclay v. Love, 25 Cal. 367 ; Hanly v. Downing, 4 Met. (Ky.) 95. For the Ohio rule, which regards the wife's intention with liberality, see Phillips V. Graves, 20 Oliio St. 371. The New Jersey rule appears to be as stated in the latest cases, substantially like that of New York, except, perhaps, as to the extent of legal remedies. It is expressed in detail as follows : (1st.) The debts of a married woman, with separate property, when contracted by her for its benefit, or for her own use, on the credit of that estate, will be charged by a court of equity upon that separate estate, and payment enforced out of it. (2d.) Such debts are not a lien upon her separate estate until made so by a decree of a court of equity, and the lien is by virtue of the decree. (3d.) A married woman cannot charge her separate estate by an appointment in writing ; but can only convey or charge it by deed duly executed with her hus- band and acknowledged, save in certain cases where she and her husband live apart. And here it appears that while her mortgage is void in which the hus- band does not join, equity will charge the mortgage debt upon her separate property generally where the debt was contracted.for the benefit of that property. Armstrong v. Ross, 5 C. E. Green, 109. If she lives apart from her husband, her separate property will be charged readily with debts contracted for her own benefit. Johnson v. Cummins, 1 C. E. Green, 97. And see Perkins v. Elliott, 7 C. E. Green, 127. In Missouri, it is held immaterial whether the wife's debt was evidenced by a written instrument or parol promise. Miller v. Brown, 47 Mis. 505. Here the wife was charged for goods bouglit on her credit for articles apparently too expensive to be deemed necessaries in the ordinary sense. The latest Indiana rule appears to be to limit the liability of the wife's separate estate [244] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 230 that while a married woman may not be bound personally by her contract, the rule under the statutes and independently of them is, that when services are rendered her by her pro- curement, or she contracts a debt generally on the credit and for the benefit of her separate estate, there is an implied agreement and obligation springing from the nature of the consideration, which the courts will enforce by charging the amount on her separate property as an equitable lien.^ And to this extent we occupy sure ground. American decisions under the married women's acts often manifest a disposition to charge a wife's engagements upon her separate estate rather than against the husband. Thus in Connecticut, while it is admitted that the wife's contracts can only bind her property and not her person, it is held that a promissory note, signed by her husband in her name, and as her trustee, and with full authority to act in the premises, which is negotiated on the faith of her credit and not her husband's, cannot be enforced against him personally, though she should afterwards be found irresponsible.^ Doubtless a married woman may become bound for family necessaries con- tracted on the faith of her separate estate, whether her hus- band be insolvent or not ; so long as neither he nor his credit were considered in the transaction between herself and the store-keeper ; and her separate estate is answerable accord- ingly in a suit against her, under many statutes.^ In some States, however, this rule would be found affected by legisla- for lier debts to cases wliere she intended to deal with lier separate estate, and the contract was reasonably adapted to better her separate estate. Kantrowitz V. Prather, 31 Ind. 92 ; Hasheagan v, Specker, 36 Ind. 413. See further, Mc- Gavock V. Whitfield, 45 Miss. 452; McCormick v. Holbrook, 22 Iowa, 487. A married woman contracting for services relating to her separate estate, and tlien becoming a widow, may be sued while discovert, on tlie contract. King v. Mittalberger, 50 Mis. 182. 1 Owen V. Cawley, 36 N. Y. 600 ; Ballin v. Dillaye, 37 N. Y. 35. 2 Taj lor V. Shelton, 30 Conn. 122. And see Gilbert v. Plant, 18 Ind. 308; Gunn V. Samuel, 33 Ala. 201 ; Mayer v. Galluchat, 6 Rich. Eq. 1 ; Catrou v. Warren, 1 Cold. 358 ; Wyley v. Collins, 9 Geo. 228. See Black v. Bryan, 18 Tex. 453. 3 Labaree v. Colby, 99 Mass. 559 ; Davidson v. McCandlisli, 69 Penn. St. 169; Campbell v. White, 22 Mich. 178; Craft v. Holland, 37 Conn. 491. [245] * 230 HUSBAND AND WIFE. tive restrictions.^ In New York, the wife may be sued alone for damages done by trespass of her cattle straying from her own premises upon adjoining land, although husband and children reside with her upon the land, and both land * 231 and cattle are used for support of the family .^ If * there be any good sense in the rule that where credit is once given to the wife, the husband will not be liable, though the articles purchased be a necessary, it is in cases where the wife has a separate income or separate property of her own and under her own control. The undoubted right of the wife on general principles to treat her husband as the trustee of her separate property, has given rise, under the married women's acts, to perplexing questions as between herself and his creditors. In New York, her privileges in this respect are carried very far ; for she may employ her husband as her managing agent to control her property, without subjecting it to the claim of his creditors ; the application of an indefinite portion of the income to his support does not impair her title to the property ; and neither he nor his creditors will acquire an interest in the property through his services thus rendered.^ It seems to be the well- settled American doctrine that by working upon the wife's lands the husband acquires no beneficial interest therein which can be enforced in equity on behalf either of himself or his creditors, in absence of a definite agreement for com- pensation ; unless, possibly, it could be shown to exceed in value the cost of suj^porting the whole family.* The crops cannot be attached by his creditors.^ Nor the betterments, buildings, and rents.^ 1 See Lee v. Morris, 3 Bush, 210 ; Hutchinson v. Underwood, 27 Tex. 255 ; Miller v. Brown, 47 Mis. 504. 2 Rowe V. Smith, 45 N. Y. 230. 3 Buckley v. Wells, 33 N. Y. 518 ; Knapp v. Smith, 27 N. Y. 277. * Buckley v. Wells, ib. ; Webster v. Hildreth, 33 Vt. 457 ; Cheuvete v. Mason, 4 Greene (Iowa), 231 ; Betts v. Betts, 18 Ala. 787 ; Commonwealth v. Fletcher, 6 Bush, 171. > 5 Mclntyre v. Knowlton, 6 Allen, 565 ; Lewis v. Johns, 24 Cal. 98 ; Allen v. Hightower, 21 Ark. 316. 6 White V. Hildreth, 32 Vt. 265; Goss v. Cahill, 42 Barb. 310; Wilkinson v. Wilkinson, 1 Head, 305 ; Eobinson v. Huffman, 15 B. Monr. 80. [246] M WIFE'S DOMINION OVER HER SEPARATE ESTATE. *2'31 In some States, the husband cannot dispose of his life- interest in his wife's lands at all, without the wife's assent.^ In Alabama, the husband's rio-hts as his wife's manacfinor attorney are declared not to extend to binding her by the submission to arbitration of questions relating to the corpus of her separate estate.^ And, in general, if the wife's i^rop- erty is not liable for her husband's debts, much less can it be made so for his torts, without her participation.^ But the " managing agent " doctrine has its limits in New York, as elsewhere ; and where there is a mere shifting of property from husband to wife, and from wife back to husband as her man- aging agent ; or where the husband, doing business as his wife's agent, obtains goods on credit under false pretences, and then gets her to make an assignment of them, such an artifice for evading his creditors is likely to fail.* Ratification of his unauthorized acts as attorney may be presvnned in some instances by her acts and conduct ; but evidence of this character should be stronger than in the ordinary case of an agent.^ And his declarations not made at the time of a trans- action, and disconnected with his act as her agent, are not admissible in evidence against her, even though they might be as against himself.^ Where the question arises, then, whether the husband is enjoying the wife's property by way of gift from her, or as her managing attorney, it must be determined by evidence. In either case the advantage seems to be with husband and wife in all controversies with the creditor. The gen- eral rule still prevails * however that money transac- * 232 tions between husband and wife should be free from fraud, and not prejudicial to pre-existing creditors of the husband. The presumptions are not equally balanced in the different States. But presumptions of a gift fi'om the wife ^ Coleman v. Satterfield, 2 Head, 259 ; Jenney v. Grey, 5 Ohio St. 45. 2 Sampley v. Watson, 43 Ala. 377. 8 See Lawrence v. Finch, 2 C. E. Green, 234. * Warner v. Warren, 4(5 N. Y. 228 ; Edgerly v. Whalan, 106 Mass. 307 ; Little V. Willets, 55 Barb. 125. 5 Ladd V. Hildebrant, 27 Wis. 135; Wells v. Thorman, 37 Conn. 318; Mc- jLaren v. Hall, 26 Iowa, 297. 6 Livesley v. Lasalette, 28 Wis. 38 ; Warner v. Warren, 40 N. Y. 228. [ '^^^ ] * 232 HUSBAND AND WIFE. are not to be strongly favored where the husband is held out to others as her agent.^ So gifts of income would be more readily presumed than gifts of capital. Her title is generally open to inspection, and may be challenged for fraud. In New Hampshire, it is held that the wife may lease her sepa- rate property to her husband.^ And the rule is recognized under the statutes of many States, though in other States denied, that she may bestow her separate estate upon him either by way of loan or gift.^ His promissory notes given for a loan from her may be enforced against him or his estate.^ But it is fair to say that whenever she gives her property to him without agreement for any repayment, but for invest- ment in his business, and to afford him credit with the world, and he so invests it with her knowledge and acquiescence, his ho7ia fide creditors ought not to suffer afterwards who had relied upon this capital, because of her attemj)t to recall the gift when she finds him embarrassed ; not even a special part- ner would have a right to do so.^ With the assent of the husband and father the labor of the wife and children may be bestowed upon the separate prop- erty of the wife and thus enure to their benefit. There is no known rule of law which requires the husband and father to compel his wife and cliildren to work in the service of his creditors.^ And it is held that the husband may stipulate, though insolvent, that the product of his own labor shall be appropriated to his wife's sejjarate use." If permitted to be maintained upon his wife's property, he does not necessarily 1 See Wales v. Newbould, 9 Mich. 45 ; Elijah v. Taylor, 87 III. 247 ; Miller v. Edwards, 7 Bush, 394. 2 Albln V. Lord, 39 N. H. 196. 3 Hinney v. Phillips, 50 Penn. St. 882 ; Fox v. Jones, 1 W. Va. 205 ; White V. Callinan, 19 Ind. 43 ; 2 Kent Com. Ill, and cases cited, last ed. ; Johnston v, Johnston, 1 Grant, 468 ; Gage v. Dauchy, 28 Barb. 622; Roper v. Roper, 29 Ala. 247. See chapter on Post-nuptial Settlements. * Logan V. Hall, 19 Iowa, 491 ; Bryant v. Bryant, 3 Bush, 155. 5 See Kuhn v. Stansfield, 28 Md. 210 ; Wortman v. Price, 47 111. 22 ; Mazouck V. Iowa Northern R. R. Co., 31 Iowa, 559. The wife may be her husband's creditor in bankruptcy. In re Blandin, 1 Lowell, 543. And see Glidden v. Tay- lor, 16 Ohio St. 509. 6 Johnson v. Vail, 1 McCart. 423. 7 Hodges V. Cobb, 8 Rich. 50. But see Penn v. Whitehead, 12 Gratt. 74. [248] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 232 acquire a title to the property or its products merely by bestowing his voluntary labor upon it.^ And a similar prin- ciple may be applied to a wife supported from her husband's property.^ But a married woman's promissory note does not, as a rule, secure her husband's debts, nor does she by executing it bind herself lawfully as his surety on a contract not relating to her separate estate, nor for its benefit, so as to render herself liable to suit.^ The same may be said of her undertakings for the benefit of third parties ; as a mere accommodation in- dorser, for instance.^ The tendency of some of the late cases is to exempt promissory notes which are drawn payable to a married * woman or order from all liability for the * 233 husband's engagements.^ It is held in New Hampshire that a wife, owning a right of dower in her husband's lands, may properly convey it and take a promissory note of equal value payable to herself; or, owning a promissory note in her own right, secured by mort- gage on the husband's estate, may sell and release her interest in such estate, and take a new note payable to herself.^ Even promissory notes taken in the husband's name are open to ex- planation.'^ As to the wife's gratuitous undertaking to subject her property to her husband's debts, the Pennsylvania rule is 1 Rush V. Vought, 55 Penn. St. 437 ; Boos v. Comber, 23 Wis. 284 ; Merrick I'. Plumley, 99 Mass. 5G6 ; Gage v. Dauchy, 34 N. Y. 293 ; Feller v. Alden, 23 Wis. 301. ■^ Burcher v. Ream, 68 Penn. St. 421. See Dean v. Bailey, 50 111. 481, as to the liability of a farm and stock, where the husband's control is not of a charac- ter inconsistent with tiie common interests of himself and wife. 8 Parker v. Simonds, 1 Allen, 258 j Shannon v. Canney, 44 N. H. 592 ; Keaton v.- Scott, 25 Geo. 652; Yale v. Dederer, 18 N. Y. 265; Wolff v. Van Meter, 19 Iowa, 134 ; Sweeney v. Smith, 15 B. Monr. 325. And see Sawyer v. Fernald, 59 Me. 500; De Vries v. Conklin, 22 Mich. 255; Vankirk v. Skillman, 5 Vroom 109. * Shannon v. Canney, 44 N. H. 592; Crane v. Kelley, 7 Allen, 250; Bailey v. Pearson, 9 Post. 77 ; Lytie's Appeal, 36 Penn. St. 131 ; Peake v. La Baw, 6 C. E. Green, 269; Bauer v. Bauer, 40 Mis. 61. 5 See Cowles v. Morgan, 34 Ala. 535; Lewis v. Harris, 4 Met. (Ky.) 353 . Chapman v. Williams, 13 Gray, 416 ; Paine v. Hunt, 40 Barb. 75. ' 6 Nims V. Bigelow, 45 N. H. 343. ^ Buck V. Gilson, 37 Vt. 653 ; Conrad v. Shomo, 44 Penn. St. 193. See Baker I'. Gregory, 28 Ala. 544 ; Fowler v. Rice, 31 Ind. 358. [249] *233 HUSBAND AND WIFE. that equity will not enforce it, but leave the parties to their legal remedies.^ There are many late decisions as to the husband's dominion over his wife's separate property. Thus in Wisconsin he may execute in her name a valid conveyance of her land under a power of attorney.^ In Maine, he may sue for damages to his wife's separate estate while managing it for her.^ And the wife maj'- employ other agents, who will not be held answer- able to him for executing her orders.^ In Michigan, a hus- band who acted as agent of his wife in selling her land and taking a mortgage for deferred payments, and then became the assignee of the mortgage, has been treated directly as vendor and mortgagee, as to equities growing out of fraud or deceit on his part in the transaction.^ The husband's per- sonal receipt of his wife's separate property will not discharge a third party from hability to the wife where the circum- stances repel a presumption of agency on the husband's part.^ It is the declared rule of many States that the hus- * 234 band * cannot of his own act subject his wife's sepa- rate land to debts for improvements, or subject it to a mechanic's lien.''' Nor mortgage it for his individual debt.^ For it is a general principle that the wife's separate property cannot be made liable for the debts of her husband or others without her assent.^ Nor is a husband allowed to sell his 1 White's Appeal, 36 Penn. St. 134. 2 Weisbrod v. Chicago, &c., R. R. Co., 18 Wis. 35; Peck v. Hendershott, 14 Iowa, 40. 3 Woodman v. Neal, 48 Me. 266. But only in her name, in accordance with statute. 4 Southard v. Plummer, 36 Me. 64. 5 Burchard v. Frazer, 23 Mich. 224. 6 Read v. Earle, 12 Gray, 423 ; Anderson v. Gregg, 44 Miss. 170. 7 Briggs V. Titus, 7 R. I. 441 ; Spinning v. Blackburn, 13 Ohio St. 131 ; Pell V. Cole, 2 Met. (Ky.) 252; Selph v. Rowland, 23 Miss. 264; Hughes v. Peters, 1 Cold. 67 ; Esslinger v. Huebner, 22 Wis. 632. But the mechanic's statutory right of lien generally extends to a married woman's lands where she contracted in person or by agent, and perhaps where the contract was for the benefit of the land. Burdick v. Moon. 24 Iowa, 418 ; Woodward v. Wilson, 68 Penn. St. 208 ; Schwartz v. Saunders, 46 111. 18 ; Lindley v. Cross, 31 Ind. 106. 8 See Patterson v. Flanagan, 1 Ala. S. C. 427. 9 Hutchins v. Colby, 43 N. H. 150 ; Hatz's Appeal, 40 Penn. St. 209 ; George [250] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 234 wife's separate real estate during her life by his own deed.^ But a mortgage given by a married woman upon her separate estate, acknowledged in conformity with the statute, and with the joinder of the husband, is a valid security and capable of enforcement ; not alone where she had it mortgaged to secure her husband's debt, but also, in a case free from fraud or un- due influence, where it was mortgaged for the benefit of a third person.2 But in such cases the wife's rights as surety are carefully guarded ; and the husband cannot bind her by his own agreement for extension or discharge.^ Her right to exoneration from his estate as a creditor after his death ap- plies with reference to mortgages of her separate lands for the benefit of herself and her heirs.* And, on the other hand, where she is a mortgagee in her own right, the husband can- not alone receive payment and satisfaction and discharge the mortgage.^ While the wife may avoid a fraud uj)on her as against all who participated therein, it is held that a creditor's rights cannot be prejudiced by any misbehavior of the husband, which procured them the wife's security}, if it was without his instigation, knoMedge, or consent.^ But when the hus- band makes a void transfer as his wife's trustee, it is held that she can follow the investment into other hands." Or she may have him removed from his trusteeship for suitable cause. ^ V. Ransom, 15 Cal. 322 ; Cheuvete v. Mason, 4 Greene (Iowa), 231 ; Yale v. Dederer, 18 N. Y. 265; Sharp v. Wickliffe, 3 Litt. 10; Johnson v. Runyon, 21 Ind. 115. 1 Prater v. Hoover, 1 Cold. 544. 2 Galway i-. Fullerton, 2 C. E. Green, 389 ; Beals v. Cobb, 51 Me. 348 ; Bart- lett V. Bartlett, 4 Allen, 440. But in Mississippi slie cannot mortgage for lier husband's debts beyond the extent of her separate income, though her husband may be bound to the usual extent. Foxworth v. Magee, 44 Miss. 430. See Wil- kinson V. Cheatham, 45 Ala. 337 ; Keller v. Ruiz, 21 La. Ann. 283. As to the Pennsylvania rule, see p. 236. 3 Savage v. Winchester, 15 Gray, 453 ; Hanford v. Bockee, 5 C. E. Green, 101 ; Bank of Albion v. Burns, 46 N. Y. 170. * lb. ; Kinner v. Walsh, 44 Mis. 65. * McKinney v. Hamilton, 51 Penn. St. 63. 6 Childs V. McCliesney, 20 Iowa, 431 ; Edgerton v. Jones, 10 Minn. 427. ■^ George v. Ransom, 14 Cal. 658. 8 Raney v. Rainey, 35 Ala. 282. So with any other trustee of her separate property. Johnson v. Snow, 5 R. I. 72. See Scott v. Scott, 13 Ind. 225 ; Ritter V. Ritter, 31 Penn. St. 390. [251] * 234 HUSBAND AND WIFE. ^ In all controversies of this kind, the late observation of a Pennsylvania court is worth remembering, that a married woman cannot possibly eijjoy her property as freely as before marriage ; for the nature of her relation with her husband forbids it.^ The rule in many States, under the married women's acts, is that the husband must join the wife in contracts and con- veyances relating to her separate property. Particularly is this true of transactions concerning the wife's real estate. Contracts and conveyances otherwise made are not * 235 considered binding.^ But in * North Carolina it has been decided, on equity principles, that where a wife after marriage, supposing the whole interest in her land was in her, made a conveyance to a trustee for her sole and sep- arate use, which her husband signed as a party, and by various clauses manifested a concurrence in her act, but did not pro- fess directly to convey any estate, the recital in the deed that ten dollars was paid by the trustee to the wife raised a use, and in that way passed the husband's interest to the trustee.^ The language of the married women's acts in many States authorizes the inference that nothing further than the written concurrence of the husband is requisite to complete the valid- ity of the wife's transfer of separate personal property. The voluntary conveyance of the wife with her husband passes her separate estate, real or personal. And in some States the wife's sole deed of her separate real estate is sufficient to ]Dass her entire interest.* But it has been held that the wife's exe- 1 Walker v. Reamy, 36 Penn. St. 410. 2 Wriglit V. Brown, 44 Penn. St. 224 ; Camden v. Vail, 23 Cal. 633 ; Maclay V. Love, 2.5 Cal. 367 ; Pentz v. Simonson, 2 Beasl. 232 ; Major v. Symmes, 19 Ind. 117; Miller v. Hine, 13 Ohio St. .565; Haugh v. Blythe, 20 Ind. 24 ; Dodge V. Hollinshead, 6 Minn. 25 ; Eaton v. George, 42 N. H. 375 ; Miller v. Wetherby, 12 Iowa, 415 ; Ezelle v. Parker, 41 Miss. 520; O'Neal v. Robinson, 45 Ala. 526 ; Cole V. Van Riper, 44 111. 58 ; Armstrong v. Ross, 5 C. E. Green, 109. And see Wickliffe v. Dawson, 19 La. Ann. 48. But see Stacker i.-. Wliitlock, 3 Met. (Ky.) 244. 3 Barnes i-. Haybarger, 8 Jones, 76. * Springer v. Berry, 47 Me. 330; Farr v. Sherman, 11 Mich. 33; Beal v. Warren, 2 Gray, 447. But a contemporaneous written assent of the husband is required bv some statutes. Melley v. Casey, 99 Mass. 241. [ 252] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 235 cution of a conveyance in blank is void, though the deed be afterwards filled up according to her directions.^ Following the spirit of recent legislation, some American courts now hold the wife liable on her covenants contained in a conveyance of her separate lands.^ So specific performance is decreed against her on her written promise to convey ; pro- vided the contract be executed with the formalities requisite in her conveyance.^ And equity will not permit the wife to avoid a sale without refunding the purchase-money.* So it is held, under the married women's acts, that where a wife pur- chased goods, giving her sole notes for them, and after her husband's death she promised to pay the notes and settle for other goods furnished, for which she gave no notes, the fjrom- ise Avas founded on good consideration, and she might be sued by the vendors.^ * But the fact that a husband allows his wife to * 236 treat and deal with, as her own, property acquired by her independently of the married women's acts is not in- consistent with his intention to assert his marital rights to it if he survive ; neither if he allows her to dispose of the income and loan it on promissory notes running in her own name, would such income become thereby converted into her separate estate.*^ The married women's acts, in the absence of unequivocal language, do not change the com- mon-law rule with reference to separate personal property of a married woman, not disposed of in her life nor by will ; 1 Burns v. Lynde, 6 Allen, 305. See further Shields v. Keys, 24 Iowa, 298. The husband's oral consent will not suffice, where the statute requires his writ- ten consent to her conveyance. Townsley v. Chapin, 12 Allen, 476. But as to sale of certain personal chattels, see Holman v. Gillette, 24 Mich. 414. The rules of the text apply to a power of attorney to sell the wife's separate land. Dow V. Gould, &c., Co., 31 Cal. 629. 2 Basford v. Peirson, 7 Allen, 524 ; Gunter v. Williams, 40 Ala. 561 ; Rich- mond V. Tibbies, 26 Iowa, 474. 3 Woodward v. Seaver, 38 N. 11. 29 ; Baker v. Hathaway, 5 Allen, 103. See Rumfelt V. Clemens, 46 Penn. St. 455; Stevens v. Parish, 29 Ind. 260; Love v. Watkins, 40 Cal. 547. * Kolls V. De Leyer, 41 Barb. 208. 5 Goulding V. Davidson, 26 N. Y. 604. But see Felton v. Reid, 7 Jones, 269. 6 Ryder i-. Hulse, 24 N. Y. 372; 8. c. 33 Barb. 264. [253] * 236 HUSBAND AND WIFE. it goes to her surviving husband by his marital right in the same manner as before.^ And a wife who has appropriated her separate property to her husband's use, during his life, cannot charge his assets with it after his death.^ The Supreme Court of Pennsylvania, commenting upon the recent married women's code in that State, observes that its purpose was to secure a wife in the use and enjoyment of her j)roperty, not to enable her to make contracts she could not have made before ; ^ they consequently have treated as void her judgment for a debt contracted for the improvement of her real estate ; ^ her bond, accompanied by a mortgage of her separate estate ; ^ and her debt, contracted jointly with her husband, though for family necessaries.^ And the mani- fest tendency in that State is plainly to limit the wife's gene- ral privileges to the statutory grant of power J Nor is the New York doctrine of the husband's employment as " man- aging agent " favored to the injury of creditors.^ But where the wife acquires property rights under her voluntary con- tract, they are to be protected.^ * 237 * In JNIassachusetts, the principle upon which the wife may charge her separate estate is stated to be that where by her contract the debt created is made expressly a charge on her separate estate, or is expressly contracted on its credit, or where the consideration goes to the benefit gf such estate, or to enhance its value, equity will decree that it shall be paid from such estate or its income, to the extent to which the power of disposal by the married woman may go.^*' 1 Ranson j;. Nichols, 22 N. Y. 110; Wilkinson v. Wright, 6 B. Monr. 576; Brown v. Brown, 6 Humph. 127. 2 Edelen v. Edelen, 11 Md. 415. 3 Brunner's Appeal, per Strong, J., 47 Penn. St. 67. * lb. And see Patton v. Stewart, 19 Ind. 233. 5 Steinman v. Ewing, 43 Penn. St. 63 ; Hartman v. Ogborn, 54 Penn. St. 120. 8 Cunimings v. Miller, 3 Grant, 146. ■J See Ruinfelt v. Clemens, 46 Penn. St. 455 ; Parke v. Kleebor, 37 Penn. St. 251. 8 Keeney v. Good, 21 Penn. St. 349. 9 Walker v. Coover, 65 Penn. St. 430. ^^ Willard v. Eastham, 15 Gray, 328 ; Rogers u. Ward, per Bigelow, C. J., 8 Allen, 387 ; Westgate v. Munroe, 100 Mass. 227. [ 254 ] I WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 237 And the equitable relief which is afforded to enforce payment of such a debt out of her separate property is founded on the reason that the contract is entered into in such form as to indicate an intent by the wife to create a personal liability. Equity will give effect to this intention by assisting the cred- itor to reach and apply her separate estate, so far as the jus disponendi is vested in her. This intent and the facts on which it rests are in no degree affected by the giving of col- lateral security.^ Hence payment may be enforced out of a married woman's separate estate upon a bond or promissory note given by her for the price of land conveyed to her sole and separate use.^ Upon the ground that the wife's separate estate should be bound by contracts for its benefit, her debts for improvements upon lands conveyed to her sole and separate use have been enforced in several late instances.^ So, too, the joint note of herself and husband for lumber and materials to be used thereon.* The disposition of the courts in such cases, where the contract was made by the husband, is to infer an agency on the wife's behalf for that purpose. There is some difficulty in the purchase by a married woman of property, whether real or personal, on credit, aris- ing out of the circumstance that she cannot make a contract for payment which will be personally binding. In New Hampshire, * it is held that a married woman can- * 238 not, under the statutes, make a contract for money or property in anticipation of the purchase of separate estate ; and hence that her note given for money borrowed wherewith 1 Rogers v. Ward, 8 Allen, 387. '•* lb. Estabrook v. Earle, 97 Mass. 302. As to barring her rights by estoppel, see Bemis v. Call, 10 Allen, 512. See Uavenport v. Davenport, 5 Allen, 464. 3 Conway v. Smith, 13 Wis. 125; Marshall v. Miller, 3 Met. (Ky.) 333; Fowler v. Seaman, 40 N. Y. 592; Carpenter v. Leonard, 6 Minn. 155; Britter v. Robertson, 11 Tex. 142. In Ileugh v. Jones, 32 Penn. St. 432, it is lield that unless the materials are actualh/ so used the debt cannot be enforced against the estate. And see p. 234, «., as to mechanics' lien. * Parker i'. Kane, 4 Allen, 340. And see Major v. Symmes, 19 Ind. 117; Eckert v. Renter, 4 Vroom, 266 ; Marsh v. Alford, 6 Bush, 392 ; Johnson v. Tuteweiler, 35 Ind. 353. [ 255 ] * 238 HUSBAND AND WIFE. to make such purchase is void.^ But, on the other hand, the New York doctrine is that she may purchase property on credit ; and if the vendor will run the risk of being able to obtain payment of the consideration of the sale, the transfer remains valid, and no estate will pass to the husband, whether the wife had previously any separate estate or not.^ And her separate estate is in fact charged under suitable circumstances by her purchase on credit, as we have already seen.^ Where she cannot be sued upon her promise to buy upon credit, she will not in equity be allowed to decline and yet keep the property too ; and hence lands sold her on her credit, and for the benefit of her separate estate, have been treated as subject to the vendor's lien, even though the notes she gave by way of executory contract could not as such be enforced against her.4 In Maine, it is held that a married woman may, under the statutes, hold an estate in trust and make contracts accord- ingly.^ And in Maine, New York, Illinois, Indiana, and some other States, a wife may now sue at law in matters relating to her separate property without joining her husband.^ So she may, in some States, bind herself by a submission to arbi- trationJ But she cannot confess judgment, though for a debt incurred for the benefit of her separate estate.^ Under the married women's acts of some States the wife may sue 1 Ames V. Foster, 42 N. H. 381. But see Batchelder v. Sargent, 47 N. H. 262. And see Carpenter v. Mitchell, 50 III. 470; Dunning v. Pike, 46 Me. 461 ; O'Daily v. Morris, 31 Ind. 111. 2 Darby v. Calligan, 16 N. Y. 21 ; Knapp v. Smith, 27 N. Y. 277. And see Chapman v. Foster, 6 Allen, 136 ; Shields v. Keys, 24 Iowa, 298. 3 Supra, p. 230. * Pemberton v. Johnson, 46 Mis. 342 ; Bruner v. Wheaton, ib. 363 ; Carpenter V. Mitchell, 54 III. 120 ; Hunter v. Duvall, 4 Bush, 438. s Springer v. Berry, 47 Me. 330. 6 Walker v. Oilman, 45 Me. 28 ; Ackly v. Tarbox, 31 N. Y. 565 ; Peters v. Fowler, 41 Barb. 467 ; Emerson v. Clayton, 32 111. 493 ; Leonard v. Townsend, 26 Cal. 435 ; Weymouth v. Chicago, &c., R.R. Co., 17 Wis. 550 ; Jordan v. Cum- mings, 43 N. H. 134 ; Gee v. Lewis, 20 Ind. 149. T Palmer v. Davis, 28 N. Y. 242 ; Duren v. Getchell, 55 Me. 241. Otherwise in Mississippi. Handy v. Cobb, 44 Miss. 699. 8 Watkins v. Abrahams, 24 N. J. 72. And see Patton v. Stewart, 19 Ind. 233. Otherwise in some States. Bank v. Garlinghouse, 53 Barb. 615. [256 ] WIFE'S DOMINION OVER HER SEPARATE ESTATE. * 238 her husband at law like any stranger.^ But in other States she cannot.^ In Iowa, after-acquired property may be taken, upon a judgment against her rendered upon her legal con- tract.^ To attempt a minute analysis of the married women's acts would require more space than our plan will permit. Nor would it profit the reader. The independent legisla- tion of some * thirty distinct communities, without * 239 nniformity of plan or principle, involving, as it does, the most interesting and yet the most perplexing of social prob- lems, must necessarily produce results which cannot be recon- ciled. It is too early yet to generalize from the decisions. Even though the hand of innovation should be stayed for a while, and public attention centre in the work of blending these results into harmony, it would be many years before our courts, applying civil codes and the traditions of the Eng- lish common law and equity jurisprudence to the discordant mass of material before them, could hope to set up a consist- ent and thorough American system. As one of our own jurists remarks,* wlierever the line may be drawn, it will be long before the public will understand and recognize the point where the power of a married woman to bind herself by her bargains ceases, and frauds upon the tlioughtless and inconsiderate must often occur. 1 Scott V. Scott, 13 Ind. 225. 2 Ritter v. Hitter, 31 Penn. St. 390. 3 Van Metre v. Wolf, 27 Iowa, 341. * Per Bell, 0. J., in Ames v. Foster, 42 N. H. 381. 17 [257] * 24:0 HUSBAND AND WIFE. *240 * CHAPTER XIII. THE wife's pin-money, SEPARATE EARNINGS, AND POWER TO TRADE. The wife's pin-money constitutes a feature of English mar- riage settlements at the present day. Pin-money may be defined as a certain provision for the wife's dress and pocket, to which there is annexed the duty of expending it in her " personal apparel, decoration, or ornament." ^ It differs from the wife's separate estate in being a gift subject to con- ditions and not at her absolute disposal. It differs from her paraphernalia in being subject to her control during marriage, and not awaiting the husband's death.^ Upon a somewhat enlarged construction pin-money is in the nature of an annuity to pay the wife's ordinary personal expenses ; and is rather the privilege of the wealthy than the poor. A person in an humble station of life pays his wife's bills as he pays his own. A person in a station rather higher is accustomed to make, for common convenience, an allowance to his wife of so much for house-keeping expenses, if she takes charge of them, and so much over for her own dress and the dress of the children. A person in a still higher sta- tion makes a general arrangement, which probably extends over years, if not over the Avhole coverture. But a person in a yet more elevated station makes a special stipulation by the marriage settlement, which is, as it were, saying, " You, the wife, shall not be reduced to the somewhat humiliating * 2-il necessity of disclosing * to me every want of a pound to keep in your pocket ; or of taking my pleasure and obtaining my consent every time you want to go to the milli- ner's shop to order your dress ; but you shall have so much, 1 Per Lord Langdale, Jodrell v. Jodrell, 9 Beav. 45 ; Howard v. Digby, 2 CI. & Fin. 654. 2 Macq. Hus. & Wife, 318 ; Peachey Mar. Settl. 298. [ 258 ] WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 241 consistent with my estate and my income, which you shall retain apart from me and exempt from my control." And this supply, as Lord Brougham remarks, is the wife's pin- money.^ The exact period when pin-money was first introduced into England is not known. Lord Brougham inclines to ascribe it to the feudal times.^ But there is equally good authority for fixing the date at the Restoration ; and the lawyers resort to Addison's Spectator in proof of the latter supposition.^ The popular name of this provision scarcely suggests its real significance ; for, so far from being a petty allowance, it is often of the most liberal amount imaginable.* The subject of the wife's pin-money seems to have received little attention in this country.^ And in England few cases of the sort have ever arisen. It is found more convenient in marriage contracts to settle a certain allowance upon the wife by way of separate estate, which allowance is subject to the usual incidents of separate property. Decisions as to pin- money and separate estate are frequently confounded.^ The leading English case on this subject is Howard v. Dighy^ which went to the House of Lords in 1834, and whose main decision was to the effect that the personal representa- tives of the wife could not recover arrears.'^ The correctness of its principle has been questioned by some writers.^ In general, the usual * equity rule against claiming * 242 more than one year's arrears appears to apply to sep- arate estate and pin-money alike.^ In other ways, too, the wife's claim may be barred. ^'^ 1 Howard v. Digby, 2 CI. & Fin. 654. 2 Jb. 676. 3 Spectator, 295. See Peachey Mar. Settl. 300 ; Sugd. Law Prop. 165. * In one reported Englisli case, by no means recent, .£13,000 a year was se- cured to the wife as her pin-money. See 2 Russ. 1, and n. to Macq. Hus. & Wife, 318. * But see Miller v. Williamson, 5 Md. 219. 6 See Lord Brougham, in Howard v. Digby, 2 CI. & Fin. 670, commenting upon 2 Roper Hus. & Wife, 133. In this case the whole subject receives ample discussion. ? 2 CI. & Fin. 670. 8 Sugd. Law Prop. 170. See Peachey Mar. Settl. 307 ; Macq. Hus. & Wife, 319, n. 9 See Peachey Mar. Settl. 303, and cases cited. '0 Arthur v. Arthur, 11 Ir. Eq. 511. [ 259 ] * 242 HUSBAND AND WIFE. The wife was formerly supposed also to gain a title to savings out of her house-keeping allowance.^ So where the husband allowed the wife to make profit of butter, eggs, poultry, and other farm produce, which allowance he called her pin-money, it was held that she acquired a separate owner- ship therein.^ But these cases rest upon questionable author- ity.^ And more recently it has been decided that where the wife of a farmer, with his knowledge and sanction, deposited the produce of the surplus butter, eggs, and poultry with a firm in her own name, and he called it " her money," and on his death-bed gave his executor directions to remove the money, and do the best he could with it for his wife, such evidence was insufficient to establish a gift between them, and that the husband had made neither the firm nor himself trustee for his wife.* In all cases of this sort, the husband's permission constitutes an important element of the wife's title. Indeed, the well-settled principle both of law and equity is that, in absence of a distinct gift from the husband, all the wife's earnings belong to him and not to herself. But by recent statutes enacted in many of the United States married women are allowed the benefits of their own labor and ser- vices, when performed on their sole and separate account, free from all control or inteiference of a husband.^ These statutes vary somewhat in their terms. Thus by a Maryland statute the amount she may so acquire is limited to one thou- sand dollars over and above her debts. The presumptions here concerning the wife's title to her earnings seem to * 243 be much the same as * in other separate property pur- 1 Paul Neal's Case, Prec. in Cli. 44, 297. But see Tyrrell's Case, Freem. 304. '!■ Slanning v. Style, 3 P. Wms. 337. 3 See Macq. Hus. & Wife, 320. * Mews V. Mews, 15 Beav. 529. See McLean v. Longlands, 5 Ves. 78, cited herein with approval. And see Rider v. Hulse, 33 Barb. 264, for a similar Amer- ican decision. * See latest statutes of New York, Massachusetts, Rhode Island, Maryland, and California. And see Cooper v. Alger, 51 N. H. 172 ; Fowle v. Tidd, 15 Gray, 94 ; Tunics v. Grover, 57 Me. 586 ; Meriwether v. Smith, 44 Geo. 541. [260] WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 243 porting to belong to her.^ There is, however, apparently less favor shown by our courts to the legislative grant of separate earnings than to that of acquisitions to a wife's sep- arate use from other sources ; and still less, as we shall soon see, to statutes extending the wife's right of acquiring earn- ings to a permission to embark in business on her own ac- count. The presumption is said to be that a wife's services, rendered even to her own mother on a basis of compensa- tion, were given on the husband's behalf.^ And where the proceeds of her earnings have been so mixed up with her husband's property as not to be easily distinguishable, the disposition is to regard the whole as belonging to the hus- band.^ It may be added that, in general, statutes which authorize married women to hold property acquired by gift, grant, or purchase, from any person other than the husband, do not carry the wife's earnings by implication.* Independently therefore of statutes which plainly secure to married women their separate earnings, it is held that an agreement between the wife, with the knowledge and consent of her husband, and a third person, for nursing and attention, the stipulation being that she shall be paid what her services are reasonably worth, gives to the wife no title as against her husband.^ Nor does equity raise a resulting trust in the wife's favor, where she contracted, with the consent of lier husband, for the purchase of a lot of land, convej^ed to him, though she paid off the mortgage, given for part of the pur- chase-money, from her own earnings.^ But where a statute provides that property acquired by a married woman by her personal services shall be her separate property, and exempt from liability for her husband's debts, 1 Raybold v. Raybold, 20 Penn. St. 308; Elliott v. Bentley, 17 Wis. 591; Laing v. Cunningham, 17 Iowa, 510. - Morgan v. BoUcs, 36 Conn. 175. 3 Quidort v. Pergaux, 8 C. E. Green, 472 ; McCluskey v. Provident Institution, 103 Mass. 300. 4 Rider v. Hulse, 33 B.arb. 264 ; Iloyt v. White, 46 N. H. 45 ; Merrill v. Smith, 37 Me. 394; Grover v. Alcott, 11 Mich. 470; Baxter v. Prickett, 27 Ind. 4'JO ; Bear t-. Hays, 36 111. 280. 5 Woodbeck )•. Havens, 42 Barb. 66. And see Elliott t>. Bentley, 17 Wis. 591 ; Duncan v. Roselle, 15 Iowa, 501 ; McKarlin v. Bresslin, 8 Gray, 177. 6 Skillman v. Skillman, 15 N. J. Cli. 478. [261] * 243 HUSBAND AND WIFE. money due for lier services is protected in the same manner as if the money had been received.^ And even on general principles of equity, the husband may in this country, as in England, create in his wife a separate estate in the proceeds of her own toil ; the validity of such a gift, as against cred- itors, being subject to the same rules which apply to other voluntary conveyances.^ So where a married woman by her industry made money as a basket-maker, — thus sup- * 244 plying her family with * necessaries ; and was in the habit of lending out the surplus money, and collecting it when due, with her husband's knowledge ; even a court of law has liberally stretched its authority to protect her acts, on the ground of an implied agency from her husband.^ There are statutes in England and parts of this country, which give to the wife the fruits of her lawful industry, where she is deserted by her husband, or even where he grossly neglects to provide for the support of his family ; and here the husband's consent to her sole employment being no ele- ment in the case, she is fairly entitled to hold the property thus acquired against all but her own creditors.^ The wife's power to carry on a separate trade is another topic, known long ago to the law of England ; and in this respect our American legislation of the present day seems to have been somewhat anticipated. The wife's lawful power to carry on a trade on her own account, independently of her husband, like most of her other separate privileges, is founded at the common law upon contracts made with her in deroga- tion of the husband's marital rights. It appears that a wife, desiring to go into business on her own account, makes an agreement with her husband. When the agreement is made before marriage it will bind the husband and his creditors ; when made during the coverture, it binds the husband only, 1 Whitney v. Beckwith, 31 Conn. 596. 2 Pinkston v. McLemore, 31 Ala. 308 ; Neufville v. Thompson, 3 Edw. Ch. 92 ; Barron v. Barron, 2i Vt. 375 ; Smart v. Comstock, 24 Barb. 411. In New York, the wife's right to sue even a firm to wliich her husband belongs for her labor and service is maintained, under the statutes. Adams v. Curtis, 4 Lans. 164. 3 White V. Oeland, 12 Rich. 308. * Mason v. Mitchell, 3 Hurl. & Colt. 528; Black v. Tricker, 59 Penn. St. 13. [262 J I WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 244 and is void against his creditors.^ This si^ecies of contract seems to have been recognized in the common-law tribunals. If, for the purpose of enabling a married woman to carry on her separate trade, property be vested in trustees before the marriage, the wife will at law be considered their agent, and in that character will have the benefit of the property, and enjoy its increase and profits independently of her hus- band, and free from liability in respect of his debts.^ The law here considers the wife as the agent of her own trustee, and her possession as his possession. The question whether the trade be carried on solely by the wife, or jointly with her husband, is a question of fact for the jury. If they find that it is a joint business, the stock in trade * will be subject to the husband's obligations.^ * 245 So the husband will be liable for the debts, if it appear that he participated with the wife in the benefits.* Separate trading was also permitted the wife by the " cus- tom of London ; " and herein she was regarded as liable to arrest and imprisonment for debt without her husband, and, moreover, might be declared a bankrupt.^ Notwithstanding these provisions of the law, it does not appear that separate trading in England was ever very com- mon. No modern equity cases are to be found on this sub- ject.^ The difficulties in the way of establishing credit, and negotiating securities on the wife's sole behalf, were probably found insurmountable, even though married women might be found anxious to assume the responsibilities of trade. This doctrine of the wife's power to trade comes up anew in this country of late years with our recent policy in favor of • Macq. Hus. & Wife, 321 ; 2 Brifrlit Hus. & Wife, 292 ; Lavie v. Phillips, 3 Burr. 1783 ; 2 Roper Hus. & Wife, 1G5, 175, and cases cited. See antenuptial and postnuptial settlements, Infra. - Jarman v. Wooloton, 8 T. R. G18; Macq. Hus. & Wife, 321 ; 2 Bright IIus. & Wife, 297. » Barlow v. Bishop, 1 East, 432 ; Macq. Hus. & Wife, 322 ; 2 Bright Hus. & Wife, 297. * Petty V. Anderson, 2 Car. & P. 38 ; Macq. IIus. & Wife, 322. 5 Beard v. Webb, 2 B. & P. 97. See 2 Roper Hus. & Wife, 124. 6 But see Talbot v. Marshfield, L. R. 3 Ch. G22. See comments in Macq. Hus. & Wife, 323, on the cases cited in 2 Roper Hus. & Wife, 172, 173. [263 J * 245 HUSBAND AND WIFE. the independence of married women. And the rule seems to be well established in the United States that the husband, in pursuance of a marriage contract, antenuptial or postnuptial, may confer upon his wife the right to trade for her exclusive benefit.^ Nor have the American cases uniformly insisted upon formal contracts for this purpose between husband and wife ; seemingly regarding the question as one of mutual and bona fide intention merely. Thus the equity rule in Ver- mont is that the wife shall hold the result of her earnings, in every case, against the husband and his heirs, and generally against his creditors, so long as he allows her to keep the property separate from the general mass of his own estate ; and this although his own name may be used in the * 246 formal conduct of the business ; * unless in the case of creditors, this should lead to a false credit on the part of the liusband.2 And in a recent case the stock in a milli- nery shop, resulting from the wife's credit and her earnings, under the sanction of her husband, was treated as her sepa- rate property, and held liable for demands affecting it.'^ In Virginia, a married woman owning a separate property, is allowed, on equity principles, to engage in trade with her husband's consent, either on her sole account or in partner- ship with a third person ; and by doing so she subjects her separate estate to payment of the business debts. And, as against the husband and his creditors, she is entitled to the profits, so far, at least, as they did not accrue from labor, skill, or capital bestowed by himself.* So in Michigan the wife is now permitted to keep a board- ing-house as her own separate business, and uj)on her own account ; and the same is said of other pursuits, though the courts of that State seem disposed to restrict her to the exer- cise of such business as is usually carried on by females and consists largely and almost necessarily of female labor.^ In 1 Richardson v. Estate of Merrill, 32 Vt. 27 ; Tillman v. Shackleton, 15 Mich. 447 ; Wieman v. Anderson, 42 Penn. St. 311 ; Duress v. Horneffer, 15 Wis. 195 ; James v. Taylor, 43 Barb. 530 ; Wilthaus v. Ludicus, 5 Rich. 326 ; Uhrig v. Horst- man, 8 Bush, 172. 2 Per Redfield, C. J., in Richardson v. Estate of Merrill, 32 Vt. 27. 3 Partridge v. Stocker, 36 Vt. 108. < Penn v. Whiteliead, 17 Gratt. 503. 5 Tillman v. Sliackleton, 15 Mich. 447; Glover v. Alcott, 11 Mich. 471. [264] WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 2-16 Pennsylvania, it is decided that a wife may trade with mer- chandise acquired in her own right, and with the proceeds of sales buy other goods to be held and traded with, which con- tinue exempt from seizure for her husband's debts, though she may not be a feme sole trader.^ In Wisconsin, where a married woman, with the assent of her husband, engages in business as a sole trader, and contracts a debt for goods to carry it on, verbally pledging the faith of separate estate, her whole separate estate must answer for it.^ But earnings ac- quired from his business managed in his absence, are not hers independently of his gift.^ And in Indiana it is said that while, as an abstract proposition, the law may not authorize a married w^oman to enter into a contract of partnership, yet if she does make such contract, and in pursuance thereof places her separate funds in the firm of wliicli she is by con- tract a partner, such funds cannot while there be made subject to her husband's debts.'^ The husband's assent is in general necessary. It is held in New York that the husband's assent does not carry with it an implied authority to make an assignment for the benefit of creditors of that business.^ But in New Jersey a wife. Who has been permitted by her hu^toand to trade, may transfer her stock * in payment of notes given for the * 247 purchase-money.^ And in South Carolina a feme sole trader is bound to a third person by her indorsement to him of a note drawn by her husband payable to herself.''' The conclusion to be drawn from this class of cases is that, modern policy having once conferred upon the wife large powers both as to the acquisition and enjoyment of separate propert3s as well as the right to invest and reinvest the same, married women naturally sought business opportunities with their capital ; and thus the courts were drawn into the prac- tical concession of trading privileges, and hence trading liabili- 1 Wieman v. Anderson, 42 Penn. St. 311 ; Manderbach v. Mock, 29 Penn. St. 43. But see Hoffman v. Toner, 49 Penn. St. 231. See McGregor v. Sibley, 69 Penn. St. 388, as to employment of her husband as her selling agent. 2 Todd V. Lee, 16 Wis. 480. » Stimson v. White, 20 Wis. 562. * Mayhew ?-. Baker, 15 Ind. 254. * Cropsey v. McKinney, 30 Barb. 47. ^ Green i'. Pallas, 1 Beasl. 267. ' Wilthaus V. Ludicus, 5 Rich. 326. And see Stimson v. White, xupra. [205] *247 HUSBAND AND WIFE. ties, while professing to deny to the wife on general principles the right to engage in mercantile pursuits without more explicit statute provisions to that effect. ^ Where it is clearly for the wife's advantage to reap the benefits of her business, the disposition of the law to yield them must be strong ; but where, as must often be the case, she speculates imprudently and becomes deeply involved, the court is perplexed though doubtless anxious to relieve her. On the other hand, the earlier American cases seem to have regarded with very little favor the doctrine that the wife, while living with her husband, could carry on a business of her own, without rendering her husband liable and subjecting her stock in trade to his debts.^ And the same may be said, at this day, of States whose legislatures have practically io-nored the rights of married women.^ In North Carolina the whole doctrine of separate trading is expressly repudiated.* And while, in general, the husband's gift may sustain the wife's claim of profits accruing from her separate trade ; yet the better opinion is that a business carried on by a husband and wife in co-operation, his labor and skill uniting with hers, must be considered as his business so far as his creditors are concerned, and fail accordingly of protection for her especial benefit.^ The recent married women's acts in many of the United States have enlarged and more fully established the wife's power to trade on her own account ; and the profits of her business are thus secured to her sole and separate use.^ She is thus enabled to use her separate property ; and she * 248 * may even enter, in some States, into general i^art- 1 The Vermont equity rule, indicated in a former section, though not an un- reasonable one, goes far bej^ond all the English precedents cited to support it. 2 McKinley v. McGregor, 3 Whart. 378, and cases cited. 3 Godfrey v. Brooks, 5 Harring. 396. * McKinnon v. McDonald, 4 Jones Eq. 1. 5 See National Bank r. Sprague, 5 C. E. Green, 13; Cramer v. Reford, 2 G. E. Green, 383. But see Pennt-. Whitehead, supra ; Bellows i'. Rosenthal, 31 Ind. 116. * Such statutes are to be found in New York, Maine, New Hampshire, Massa- chusetts, Kansas, New Jersey, Iowa, and other States. And see Mitchell v. Sawyer, 21 Iowa, 582. [266] WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 248 nership for trade. But the statutes of Massachusetts require her to first register her intention, thus affording a very rea- sonable safeguard against fraud and imposition.^ In general, what the wife acquires under these statutes is declared to be exempt from liability for the husband's debts, and not sub- ject to his control or interference. In Massachusetts, where the statutory doctrine of the wife's power to trade and acquire separate earnings has already received a considerable exposition in the courts, it is made a rule that the wife's contracts regarding her separate business are binding on her separate property, and that the husband is not answerable for her solvency. And where a married Avoman carries on the business of keeping boarders on her sole and separate account, and has purchased goods to be used in her business on her sole credit, she alone is liable, although her husband lived with her when the goods were purchased ; and her own acts and admissions in reference to the business are competent evidence against her.^ But the earnings of the wife are still, prima facie, the property of her husband ; and where she buys articles of family furniture partly from her own earnings and partly w^ith means furnished by her hus- band, it is to be supposed, in the absence of further proof to the contrary, that she has no exclusive title to any portion of the property.^ The statutes permit a married woman to form a copartnership in business with third parties, though not with her husband ; and this exception the court has so strictly enforced, that her transactions as a member of any firm in which her husband is interested as a partner are utterly void, whether to her advantage or injury, inasmuch as she cannot contract with her husband singly or jointly."^ 1 Mass. Stats. 18G2, c. 198. This statute requirement does not apply to keeping a colt for use, nor to buying materials to build a house for the family. Proper v. Cobb, 104 Mass. 589. See further as to this statute, Feran v. Ru- dolphsen, 106 Mass. 471 ; Cahill v. Campbell, 105 Mass. 40. In Kentucky, authority to trade must be given the wife by a chancellor. Uhrig i\ Horstman, 8 Bush, 172. ' Parker v. Simonds, 1 Allen, 258. See language of the statute herein cited, to the effect that she shall be treated as & feme sole, in respect to such property. » Kelly V. Drew, 12 Allen, 107. See Woodcock v. Reed, 5 Allen, 207. * Lord V. Parker, 3 Allen, 127 ; Edwards v. Stevens, ib. 315 ; Plunier v. Lord, [2G7] * 248 HUSBAND AND WIFE. The New York doctrine is that where the husband * 249 permits * his wife, without objection, to hold herself out before the world as transacting business on her sole and separate account, though he may advance money to her in her business, the title of property purchased therewith, as against the husband, vests in the wife.^ And as against her husband's creditors, she may make him managing agent, let him conduct the business in her name, while she furnishes the capital from her own means and takes the profits to herself ; pajdng the managing agent what she thinks best without sub- jecting the stock in trade to his debts.^ So it is held that a wife by allowing chattels belonging to her, and which remain m specie^ to be employed by her husband in carrying on a business for their common benefit, does not devote them to her husband, so as to render them liable for his debts.^ The courts of that State intimate, however, that there should be no fraud in such transactions ; which otherwise the reader might doubt, from finding such latitude given to the wife's business dealings. We should add that it is deemed a question of fact for tlie jury, whether upon evidence a business is in truth the wife's, with the husband acting merely as her agent, or this agency is a cover for the husband's business to keep his property from his own creditors.^ And that under some cir- cumstances a husband's agency from the wife will be consid- ered revoked and the business subsequently carried on for his benefit, and not hers alone .^ Under statutes which permit the wife to trade separately, it is held in New Jersey that her debts can be collected from her in equity.^ In Maine, the husband cannot be sued for goods and chattels furnished his wife by third persons in the course of her business, even though such purchases were made by her with his knowledge and consent, and although she appropriated part of the proceeds to the support of her 7 Allen, 481. As to husband's liability on a lease, though professing to under- let for a wife's business, see Knowles v. Hull, 99 Mass. 562. 1 Samniis v. McLaughlin, 35 N. Y. 647. 2 Buckley v. Wells, 33 N. Y. 518. 3 Sherman v. Elder, 24 N. Y. 381 ; Barton v. Beer, 35 Barb. 78. * Abbey V. Deyo, 44 N. Y. 343. 5 Hamilton v. Douglas, 46 N. Y. 818. 6 Wheaton v. Phillips, 1 Beasl. 221. [268] WIFE'S SEPARATE EARNINGS AND POWER TO TRADE. * 2-49 husband and family.^ But where the purchase and sales are made with his knowledge and consent, and he participates in the profits of the business, knowing them to Ije such, and that she professed to act for him, it may be inferred that the purchases were made on the husband's credit.^ In Mis- souri, a wife went into the millinery business and bought goods on her sole credit, and her husband having no partici- pation whatever in the concern, it was held that he was not responsible for the debts so contracted by her ; and in this case it appeared that the business was carried on against his consent.^ On the whole, it would still appear to be the general rule, notwithstanding the late statutes, that a wife may not, as against the world, become her husband's partner, nor even join her labor and capital to his in one and the same business enterprise.* * By the civil code of France, the wife may carry on * 250 a trade independently of her hiiisband.^ So the wife may l)e a separate trader under the custom of Paris.^ And a similar right is recognized by the laws of Spain and other European countries.''' From the civil, rather than the common law, are derived those property rights of married women which are recognized in Louisiana, California, and others of the South-western States, originally colonized by the Spanish and French. Thus the Louisiana code i-ecognizes the capacity of the wife to carry on separate trade, or, as it is said, to constitute herself a public merchant, provided she act bona Jide, and have an active agency in the concern.^ And in California there are recent statutes, under which it is held that married women, as sole traders, may buy on credit, and execute all necessary ' Colby V. Lamson, 39 Me. 119. 2 Oxiiard v. Swanton, 39 Me. 125. 3 Tuttle V. Iloag, 46 Mis. 38. And see Smitli v. Thompson, 30 Conn. 175. * Wilson V. Loomis, 55 111. 352 ; Montgomery v. Sprankle, 31 Ind. 113 ; Lord V. Parker, 3 Allen, 127. 5 Code Civil, art. 220; 1 Burge Col. & For. Laws, 219. « 1 Burge Col. & For. Laws, 218. 1 lb. 226, 420, 698. 8 La. Code, art. 128; Christensen v. Stumpf, 16 La. Ann. 50. [ ^69 1 * 250 HUSBAND AND WIFE. instruments of purchase.^ Not only is the husband not for- bidden there to become a partner, but the phiin intention of the law is, that he may furnish part of the capital stock. The wife may sue alone in such business, and may employ her husband to manage it ; and even though the trade be unsuitable to her sex, fraud upon the husband's creditors will not be conclusively presumed.^ In other South-western States, separate trading seems to be permitted on similar principles.^ 1 Camden v. Mullen, 29 Cal. 564 ; Reading v. Mullen, 31 Cal. 104. 2 Guttman v. Scannell, 7 Cal. 455. 3 See Atwood v. Meredith, 37 Miss. 635 ; Oglesby v. Hall, 30 Geo. 386. [270] WILLS OF MARRIED WOMEN. * 25 1 * CHAPTER XIV. *2ol THE WILLS OF MARRIED WOMEN. Married women cannot at the common law make a valid will. Their incapacity in this respect results partly from the general disabilities of coverture, and jiartly from that common- law policy which would preserve unimpaired the husband's marital control and right of succession. So, too, the marriage of 2^ feme sole is such an entire change in her condi^on and relations, that it is generally held to work a revocation of her will executed before that event. ^ And the effect was the same, even where she survived her hus- band, and was thus restored to her fprmer condition. ^ On the other hand, the marriage of a man has at the com- mon law no such effect upon his right of testamentar}" dispo- sition. He can make a will of his own property, whether married or single. Nor is marriage of itself a revocation of his will previously executed. But marriage and the birth of a child is regarded as having sucli an effect upon his condition and relations in life, that a prior wall is thereby revoked.^ Even this implied revocation, so far as concerned his real estate, was not conceded in the English courts without a struggle."^ To the wife's testamentary incapacity there are some excep- tions. Thus by the English law she may make a valid will of * personalty, with the consent of her husband. * 252 But this is upon the condition that he survives her, 1 Forse & ITerabling's Case, 30 & 31 Eliz., 4 Co. Rep. GO, 61 ; Ilodsden v. Lloyd, 2 Bro. C. C. 534. 2 1 Jarra. Wills, Eng. ed. 1801, 114; Cotter r. Layer, 2 P. Wms. G23, 024 ; 1 Redf. Wills, 293. 3 1 Redf. Wills, 293-302, and authorities cited ; 1 Jarm. Wills, Eng. cd. 1861, 115. * Johnston v. Johnston, 1 Phillim. 447 ; Marston v. Fox, 8 Ad. & El. 14. * 252 HUSBAND AND WIFE. and does not elect, after her death, to disaffirm his consent already given. The will of a married woman, when pre- sented for probate, is treated as a mere nullity.^ Bnt where it is alleged to have been made with the assent of the husband, the court assumes jurisdiction. Hence the wife's right in such cases is founded upon the husband's gift, or, as it is said, the waiver of his own right to administer for his own benefit.^ And if the husband die before his wife, her will is void, so far as it could have derived any validity from his consent.^ And his consent to the particular will, it would appear, does not pass subsequently acquired property.^ In order to establish a will by the husband's consent, it should be shown that the husband has consented to the par- ticular will that his wife has made. His general assent that she may make a will is not deemed sufficient.^ But his con- sent to a particular will may be inferred from circumstances ; and if after his wife's death he acts upon the will, or once agrees to it, he is not considered at liberty to retract his assent afterwards, and oppose the probate.^ Such acts as expressing gratification at his wife's selection of an executor, or recommending him to particular places to procure suitable preparations . for the burial, may constitute a conclusive pre- sumption of assent after the wife's death ; at least, if the executor has been thereby induced to act under the instru- ment.'^ And recently it has been decided that he cannot withdraw his assent before probate, after giving the sole * 253 legatee a written memorandum containing his* sanc- tion of the will, in order to borrow it for an alleged particular purpose.^ The rule is general in this country that the husband may 1 Tucker v. Inman, 4 M. & G. 1049 ; Fane, Ex parte, 16 Sim. 406. 2 1 Wnis. Ex'rs, 45, 49 ; 1 Redf. Wills, 25 ; Stevens v. Bagwell, 15 Ves. 156. 3 1 Rodf. Wills, 25. * lb. ; 1 Wms. Ex'rs, 49. 5 1 Wms. Ex'rs, 44; Rex v. Bettesworth, 2 Stra. 891. And see Kurtz v. Say- lor, 20 Penn. St. 215. « 1 Wms. Ex'rs, 44 ; Brook v. Turner, 2 Mod. 170 ; Maas v. Sheffield, 10 Jur. 417 ; 1 Rob. Ecc. 364. Mb. ; 1 Redf. Wills, 24. 8 Maas V. Slieffield, 10 Jur. 417 ; 1 Rob. Ecc. 364. But see Van Winkle v. Schoonmaker, 15 N. J. Ch. 384, where the doctrine is asserted that the husband may withdraw his assent at any time before probate. [272] WILLS OF MARRIED WOMEN. * 253 allow his wife to make a valid will of her personal estate, and that his assent cannot be revoked after probate of the will.^ Another class of so-called exceptions to the wife's incapac- ity is, when she takes property in character of executrix, and her will is confined to matters and things which she takes in that character ; in which case she may make a will without the husband's assent, and the ecclesiastical or corresponding court assumes jurisdiction.^ But if the wife had before mar- riage reduced to possession personal chattels, to which she was entitled as executrix, the right of the husband attaches, and the wife cannot dispose of them by will.^ Since this ex- ception does not concern j)roperty to which the wife takes a beneficial title, it can hardly be called an exception at all. A third class of exceptions, recognized in England, is where personal property is given or settled, or is agreed to be given or settled to the wife's separate use. / In such a case the wife may dispose of such property to the full extent of her inter- est, although no particular form is prescribed in the instru- ment creating the trust. This follows as an incident to the right of beneficial enjoyment. It makes her right of disposi- tion complete.^ " I have always taken this ground," says Lord Thurlow, * of this class of cases, " that per- * 25i sonal property, the moment it can be enjoyed, must be enjoyed with all its incidents." ^ And as to the wife's sepa- rate estate, savings out of allowance may be bequeathed by 1 Cutter V. Butler, 5 Fost. 343 ; Fisher v. Kimball, 17 Vt. 323 ; George v. Bussing, 15 B. Monr. 558 ; Wagner v. Ellis, 7 Penn. St. 413 ; Lee v. Bennett, 31 Miss. 119 ; Newlin v. Freeman, 1 Ired. Law, 614. As to the method of express- ing assent, see Grimke v. Grimke, 1 Desaus. 3G6 ; Cutter v. Butler, 5 Fost. 343 ; 1 Redf. Wills, 29 ; Kurtz v. Saylor, 20 Penn. St. 205. The husband's covenant in a marriage settlement will repel his riglit of administration. Newlin i'. Free- man, 1 Ired. 514. - Tucker v. Innian, 4 M. & G. 1076. 3 Scammell v. Wilkinson, 2 East, 552 ; 1 Wms. Ex'rs, 44 ; 1 Redf. AVills, 23 ; Hodsden v. Lloyd, 2 Bro. C. C. 534. •* Fettiplace v. Gorges, 1 Ves. Jr. 46; Lord Eldon, in Rich v. Cockell, 9 Ves. 375; 1 Redf. Wills, 23; 1 Wms. Ex'rs, 48, and English cases cited. 5 Fettiplace v. Gorges, 1 Ves. Jr. 46. And see p. 2G1. 18 [ 273 ] * 254 HUSBAND AND WIFE. ■will as well as the capital ; for this, too, is separate estate.^ But it should be borne in mind that as to her right of dispo- sition, a married woman is a feme sole sub modo only, and is limited by the terms of the gift or settlement from which her estate is derived.^ There is no reason for distinguishing between real and per- sonal estate settled to the wife's separate use ; the excej)tion ought to embrace both kinds of property.^ But the English cases for some time manifested a doubt on this point, and the testamentary jus disponendi was thought not so clear in the case of separate real estate, as of separate personalty.* The recent case of Taylor v. Mead would appear to set this doubt at rest.^ In this case the wife had lands conveyed in trust to her separate use, with a power given her to appoint it by any instrument in writing, ^'^ to be by her signed, sealed, and de- livered " after a certain manner ; the formalities prescribed being greater than the statute of wills required for testa- mentary dispositions. The p'roperty was limited over to others in default of such appointment. She made an instru- ment in writing, which conformed to the statute of wills, but whic'h, not being under seal, was not in accordance with the power given her. It was decided that the instrument was defective as the execution of a power of appointment ; but that it was a valid devise, such as she had the right to make, of estate settled to her sole and separate use.^ * 255 * A married woman's right to make a will is further recognized in cases where her husband is dead at the law. As where he has been banished for life." Or is trans- 1 Brooke v. Brooke, 25 Beav. 342. But as to pin-money, see Barrack j;. M'Culloch, 3 Kay & Johns. Ill, and last chapter. 2 See ch. 12, supra. 3 1 Jarm. Wills, .ed. 1861, 34, 35; per Lord Lyndhurst, Baggett v. Meux, 1 Ph. 628. 4 Harris v. Mott, 14 Beav. 169; Churchill v. Dibben, 9 Sim. 447, n. 6 10 Jur. N. 8. 127 ; overruling Buckell v. Blenthorne, 5 Hare, 131. <> lb. And the Vice-Chancellor has decided that her devise is equally valid, though the property was given to her separate use, without the intervention of trustees. Hall v. Waterhouse, 11 Jur. n. s. 361. " Countess of Portland v. Progers, 2 Vern. 104 ; Compton v. Collinson, 2 Bro. C. C. 377. [274] WILLS OF MARRIED WOMEN. * 255 ported for life.^ Or is an alien enemy .^ For in such cases she is no long'er regarded, as under the disabilities of cover- ture. And some writers have thought that while a husband's marital rights are suspended, as by his temporary banishment, his wife ought to be able to make a valid will of property acquired by her in the mean time.^ If a wife acquires any property after her husband's death, it cannot pass by a will made during her coverture, though by the consent of her husband ; for at the time of making the will she was intestable as to that property.* Married women were expressly excepted from the statute of wills, 34 & 35 Hen. VIII. c. 5 ; though no new disability was thereby created, since they had been regarded as incapa- ble of executing a will at a much earlier date. The present English statute of wills, 1 Vict. c. 2j>^§ 8, provides that " no will made by any married woman shall be valid, except such will as might have been made by a married woman before the passage of this act." But the exceptions have so multiplied upon the prohibition of late years as to constitute of them- selves a new rule. So by the recent English statute, wills are held to be absolutely revoked by the subsequent marriage of the testa- tor, whether made by a man or woman, unless such will be made in execution of certain specified powers ; and it is fur- ther provided that no will shall be revoked, by any presumption of intention * on the ground of an altera- * 256 tion of circumstances.^ Thus again is a mass of legal learning swept away and another opening made towards the equality of the sexes. In this country, the great revolution which has been effected in the propert}' rights of married women leaves its traces upon 1 Newsome v. Bowyer, 3 P. Wins. 37 ; Goods of Martin, 15 Jur. G86 ; Atlee V. Hook, 23 L. J. Ch. 77G. - Deerly v. Mazarine, 1 Salk. IIG. « 1 Jarm. Wills, ed. 1861, 35; Ex parte Franks, 1 Moore & Sc. 11. But see Coombs V. Queen's Proctor, 16 Jur. 820. * Scammell v. Wilkinson, 2 East, 656. 6 i Redf. Wills, 297. [275] * 256 HUSBAND AND WIFE. their testamentary privileges. The principles indicated in the married women's acts, though not uniformly expressed in clear and unambiguous language, is that the wife may devise or bequeath, by her sole will, whatever separate property the statutes secure to her ; and that such will is valid without the joinder or assent of her husband.^ In some States the capacity of married women to execute a valid will seems to have been conferred by implication. The statutes of Vermont give them the power to devise their real estate by last will and testament ; and since equity has given so liberal a scope to their powers over separate property, it would appear that they may make a valid bequest of separate chattels likewise, without the concurrence of their husbands, and as part of the jus disiJonendiP' But in States which draw the doctrine of separate use from their own local legis- * 257 lation a more stringent * rule might be enforced. The whole subject has as yet received little attention in the courts.^ 1 Such express provisions are to be found in the laws of Maine, New Hamp- shire, Massachusetts, Hhode Island, New York, Pennsylvania, Ohio, Indiana, Wisconsin, and other States. The language of these statutes is sometimes restricted to the wife's " separate " property ; in otlier States, the word " sep- arate" is not employed. Some States employ the word "devise," and omit the word " bequeath ; " thus suggesting the inquiry whether the legislature meant that the wife could dispose of her lands, but not her chattels. Certain rights of the husband are found to be expressly reserved in many of these acts ; and in Massachusetts it is provided that the wife cannot deprive her husband of more than one-half her personal estate without his consent in writ- ing. In Ohio, it is declared that the will of nfeme sole is not revoked by her subsequent marriage. Some legislatures have manifested special opposition to the husband's influence over the wife's disposition. The laws of Pennsylvania, for instance, expressly forbid him from executing the will as a witness. And it would appear that under the New Hampshire statute the husband cannot receive any benefit under his wife's devise of her separate real estate. 2 See Caldwell v. Renfrew, 33 Vt. 213 ; Holmes v. Holmes, 27 Vt. 765. •* In Virginia, and the Southern Atlantic States generally, as well as Alabama, the doctrine of the wife's testamentary capacity seems to be founded upon the earlier English cases. But in these and some other States which borrow largely from the cliancery jurisprudence of England, perhaps the wife at this day would be allowed to devise and bequeatii property duly settled to her separate use, should such cases occur. See Burton v. HoUey, 18 Ala. 408 ; Porcher v. Daniel, 13 Kich. 349; Michael v. Baker, 12 Md. 158. It has been perceived that this right of testamentary disposition, as incidental to the wife's beneficial enjoyment • [ 276 ] WILLS OF MARRIED WOMEN. * 257 But there are already some decisions sustaining the wife's right to dispose by her will, duly executed, of real estate held to her sole and separate use. And she may even, in certain States, cut off her husband's right of curtesy, by observing the statute formalities of execution ; in Massachusetts, for instance, by a will executed with her husband's assent ; in Illinois, without such assent.^ It is well understood that, by the Roman civil law, a mar- ried woman possessed the same testamentary capacity in all respects as a feme soleP" And such is the law in France, Holland, Spain, and the European countries generally .^ In Scotland, the wife is permitted to bequeath her share of the common goods, even without the husband's assent.* The early policy of England as to wills seems in truth peculiar to that country. For Voet and other publicists have declared that, although the wife should not be/ffllowed to make a con- tract without the consent of her husband, yet she ought to be permitted to make a will, because it does not take effect until the marital authority has ceased.'^ In Mississippi, it is held that the wife's testamentary dis- position of her personal chattels, with the assent of her hus- of lier separate property, has been but gradually conceded in England, and that the beneficial rule for a long time was supposed to apply to her personal estate simply. » Sanborn v. Batchelder, 51 N. H. 426 ; Silsby v. Bullock, 10 Allen, 94 ; Pool V. Blakie, 53 111. 495. And see Cavenaugh v. Ainchbacker, 36 Geo. 500. 2 2 Bl. Com. 497 ; 1 Redf. Wills, 22. s 4 Burge Col. & For. Laws, 326. * lb. 328. * Voet, Sande, and Rodenb., cited 4 Burge Col. & For. Laws, 326. We may understand, therefore, why the Louisiana Code permits the wife to make her testament without the authority of her husband. La. Code, art. 132. And in other South-western States, under the community system, the wife's right of testamentary disposition is likewise to be found. In Mississippi, this riglit has been long favored, nor is it abridged by construction of the married women's acts. Lee v. Bennett, 31 Miss. 119. In California, the statute gives the wife power to dispose of all her separate estate without the concurrence of her hus- band, but her will must be attested, witnessed, and proven after the ordinary manner of wills. It cannot be said in anj' of these States that the doctrine of the wife's testamentary capacity was borrowed entirely from the English com- mon law, or underwent corresponding modifications ; though the final results at this day are found to be quite similar. [277] * 257 HUSBAND AND WIFE. * 258 band, * is entitled to all the effect of a will made by a person sui juris. But whether the paper be re- garded as a will, or as an instrument in the nature of a last ^-ill and testament, it must be regularly admitted to probate before it can have any force whatever.^ And marriage oper- ates as a revocation of her will made while single ; nor can it revive on her husband's death.^- There are other States where the wife's will of property settled to her separate use has been allowed to ojoerate by way of appointment.^ Or again, her will made by permission of the husband, where the same is duly admitted to probate.* In Kentucky, while a married woman's will is to be restricted in operation to such estate as she is authorized by law to dispose of by will, and the con- clusiveness of a probate judgment must be regulated accord- ingly, there is a liberal disposition manifested to treat land belonging to a married woman who lives apart from her hus- band, as so far her separate estate that she may dispose of it by her will.'^ Independently of late statutes conferring a special power, the older States agree that a married woman cannot devise lands not held in her sole right.^ But the Ohio courts, many years ago, decided that under its own statutes, giving " every male person aged twenty-one years or upward, and every female aged eighteen years or upward," the power to devise property, a married woman could make a valid will to pass her real estate.'' In New York, a married woman might for- merly make a valid will under the written authority of her husband ; but the right was afterwards taken away ; for by the Revised Statutes, married women were exj)ressly excepted from the provision conferring general testamentary power.^ 1 Lee V. Bennett, 31 iliss. 119. - Garrett v. Dabney, 27 Miss. 335. =< Buchanan v. Turner, 26 Md. 1 ; Porcher v. Daniel, 13 Ricli. 349. * Emery v. Neiglibour, 2 Halst. 142. And see Chapman v. Gray, 8 Geo. 341. s Mitcliell V. Holder, 8 Bush, 362 ; Hiram v. Griffin, 8 Bush, 262. 6 Osgood I'. Breed, 12 Mass. 52-5 ; Taber u. Packwood, 2 Day, 63 ; West f. West, 10 S. & R. 446; Marston v. Norton, 5 N. H. 205; Newlin v. Freeman, 1 Ireil. Law, 514. "^ Allen V. Little, 5 Ohio, 65. This was a case of a woman living apart from her husband. 8 Moehring v. Thayer, 1 Barb. Ch. 264 ; Wadhaus v. Am. Home Missionary Society, 12 N. Y. 415. See White v. Wager, 25 N. Y. 328. [278] WILLS OF MARRIED WOMEN. * 258 Under the present English statute, the will of a married woman is not rendered void, if executed during coverture, by sole reason of her surviving her husband. There must be a * confirmation or republication of the will, how- * 259 ever, after coverture ceases. And it must be in the particular mode pointed out by the statute, and not by parol. ^ Hence a mere signature by herself, and other parties as wit- nesses, the testatrix saying nothing about the reason of her signing, and making no request for the others to sign as witnesses, is held not to amount to a republication of the will.2 There can be little doubt of the reluctance with which courts of equity sustain devises from the wife to her husband. And there are cases to the effect that the husband cannot become the gainer, or have his marital rights extended by his wife's testamentary disposition of he;>^ands. But they gene- rally turn rather upon statutory construction than principle.'^ In New York, the married women's act of 1849 gave the wife power " to convey a\id devise real and personal propert}^" " as if she were unmarried," and it was held that, notwith- standing these woi'ds, a deed executed by a wife, in contem- plation of death, to her husband, in good faith and voluntarily, was wholly ineffectual.* Wills of married women unduly obtained, through the marital influence and authority of their husbands, are of course invalid, though the case should fall within one of the exceptions to her general incapacity.^ So if a wife hav- ing power to dispose of * property by her will, makes * 260 her will, and afterwards destroys it, by the compulsion of her husband, it may be established afterwards, on due proof of his misconduct, and of its contents and execution.*^ 1 1 Redf. Wills, 377; Dickinson v. Swatman, 6 Jur. x. s. 831; Goods of Grahain, L. R. 2 P. & D. 385. ■■J Dunn V. Dunn, L. R. 1 P. & D. 277. 3 White V. Wager, 25 N. Y. 328 ; Morse v. Thompson, 4 Cush. 562 ; Wake- field V. Phelps, 37 N. H. 205. See Hood v. Archer, 1 McCord, 225. * WI)ite V. Wager, 25 N. Y. 328. But see Caldwell v. Renfrew, 33 Vt. 213 ; Noble V. Enos, 19 Ind. 72. 5 Marsh v. Tyrrell, 2 Hagg. 84 ; 1 Wms. Ex'rs, 47. « 1 Whis. Ex'rs, 47. [279] * 260 HUSBAND AND WIFE. But in the analogous instance of the wife's appointment to her husband, it has been held that the circumstances that the deed had been prepared by her husband's solicitor, that it had not been read over at the time of the execution, and the evidence of one of the attesting witnesses that she was agi- tated and distressed at the time of the execution, and signed it in a reluctant manner, will not be sufficient to invalidate the deed.i A married woman, being desirous of making a disposition of her real estate, to take effect after her decease, united with her husband in the execution of a deed of the same to a trus- tee, authorizing him to make a sale thereof, and out of the proceeds to pay certain sums to particular individuals, and the remainder to her legal representatives. The husband received the deed after its execution, upon his express promise to deliver it to the grantee, at his wife's decease, if that should occur before his own. Ui^on her death before the husband, a court of equity decreed the delivery of the deed to the gran- tee, on the ground that the title to such estate had vested in him.2 It is held in Pennsylvania, that where husband and wife had wills prepared giving their property to each other, but each by mistake signed the other's will, and the husband afterwards died, the legislature could pass no subsequent law to reform his will ; inasmuch as the right of his heirs became vested on his death as an intestate.^ The same principles which regulate the wife's testamentary disposition of her personal chattels regulate her donatio causa mortis likewise. Therefore, it is held that the wife's gift of any of her property during her last illness, and in expectation of death, is, like her will, valid only by the assent of her hus- band.^ Where the wife held notes to her separate use, * 261 it was * decided in Vermont that she might make them the subject of a donatio causa mortis to her hus- 1 Nedby v. Nedby, 11 E. L. & Eq. 106. See Noble v. Enos, 19 Ind. 72. 2 Woodward v. Camp, 22 Conn. 457. » Alter's Appeal, 67 Penn. St. 341. * Jones V. Brown, 34 N. H. 439. [280] WILLS OF MARRIED WOMEN. * 261 band as trustee for other persons, and thereby vest in him a good legal title as against her administrator. " In this view alone," added the court, " it seems to be needless to discuss whether the husband could be a donee causa mortis of the wife ; and yet on principle it is quite difficult to assign a cogent or plausible reason why he might not be." ^ But of course the husband may set up his antenuptial contract with his wife in reference to certain property, so as to prevent her donatio causa mortis to others from taking effect to his prej- udice.^ Finally, it may be observed that, both in England and America, a married woman may make a testamentary dispo- sition of real or personal estate under a power, even where her general testamentary capacity is by law denied or restricted. There are many decisions found to this effect.^ And in some cases, particularly those involving property rights in the wife's lands, the courts seem to have been misled by the similarity between separate estates and estates with a power of appoint- ment given to the wife ; and therefore to have applied the terms " devise," " will," and " appointment," somewhat indis- criminately. 1 Caldwell v. Renfrew, 33 Vt. 213. 2 Lawrence v. Bartlett, 2 Allen, 36. 3 4 Kent Com. 506; Heath v. Withington, 6 Cush. 497; West v. West, 10 S. & R. 446 ; 1 Redf. Wills, 28, and cases cited ; Dominick v. Michael, 4 Sandf. 374; Hughes v. Wells, 13 E. L. & Eq. 389; Shattock v. Shattock, L. R. 2 Eq. 182; Rogers v. Hinton, 1 Pliill. (N. C.) Eq. 101. In cases of doubt a limited probate of the instrument may be granted. Raylon v. Tongue, L. R. 1 P. & D. 158 ; Goods of Richards, L. R. 1 P. & D. 156. And see Trappes v. Meredith, L. R. 7 Ch. 248 ; Goods of Graham, L. R. 2 P. & D. 385. Where a will is only an appointment under a settlement, the trustees named do not act, strictly speak- ing, as executors. Goods of Eraser, L. R. 2 P. & D. 183. [281] *262 HUSBAND AND WIFE. 262 * CHAPTER XV. ANTENUPTIAL SETTLEMENTS. Settlements are a useful contrivance for preserving estates intact in a family. As between husband and wife, the word " settlement " is applied to their mutual contracts in reference to the property of one another, by means of which they change and control the general rules of the marriage state. They cannot vary the terms of the conjugal relation itself ; they cannot add to or take from the personal rights and duties of husband and wife ; but they may essentially alter the interest which each takes in the property of the other, if they choose to enter into special stipulations for that purpose. These special stipulations may be either antenuptial or post- nuptial ; while, as we shall soon perceive, the two classes are more alike in name than substance, and the term " marriage settlements " is frequently applied to antenuptial settlements only. A distinction meets us at the outset, between promises to marry and promises in consideration of marriage. The statute of frauds, section four, requires that promises and agree- ments in consideration of marriage shall be " in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." Yet a promise to marry is binding, although verbal. ^ It would strike any one (except perhaps a lawyer) that a promise by a woman to marry a man in consideration of his promising to marry her was an agreement made in consideration of marriage, but it * 263 is not.2 Perhaps * it is public policy which sustains the latter, rather than the former contract, without re- 1 Macq. Hus. & "Wife, 220; Cook v. Baker, 1 Stra. 34; Harrison v. Cage, 1 Ld. Raym. 386. 2 See Smitli on Contracts, 57. [ 282 ] ANTENUPTIAL SETTLEMENTS. * 263 quiring a writing. Perhaps too this carries weight, that a promise to marry is merely a promise to enter into a certain relation, and so clearly interpreted by any court without the aid of written evidence, jorovided the promise be once proved ; while the statute of frauds is found most convenient for clearly fixing mutual stipulations which might be varied in a thousand waj^s and affect the property rights of the contracting parties accordingly. At all events, a promise to marry, whether verbal or written, affords a singular remedy, one quite diiferent from the remedies attending marriage settlements ; namely, no right of specific performance, but always damages to the injured party.^ In marriage settlements, the marriage affords a sufiicient consideration. Hence a man cannot set aside an agreement in contemplation of marriage, on the plea that his wife's for- tune fell short of his expectations<^or, as Lord Hardwicke observed, it would be extremely mischievous to set aside marriage settlements upon such grounds.^ It is the consider- ation of marriage, not the consideration of a corresponding fortune, which runs through the whole settlement or agree- ment, and supports every part of it ; thus making marriage not only a high but the highest consideration, in fact, known to the law.^ In this country, the validity of marriage settlements is gen- erally recognized ; and it is well understood that almost any bona fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property, or a portion of that of her husband, whether during coverture or after his death, will be carried into execution in chancery.* ^ For further discussion of this topic, see Macq. Hus. & Wife, 220 et seq. ; and see infra, p. 266. 2 Ex parte Marsh, 1 Atk. 159. 3 Eord V. Stuart, 15 Beav. 499 ; Nairn v. Prouse, 6 Ves. 752 ; Peachey Mar. Settl. 56. As to power of appointment under a settlement, see Webb v. Sadler, L. R. 8 Ch. 419. * Stilley V. Folger, 14 Ohio, 610; 2 Kent Com. 163; 2 U. S. Eq. Dig. Hus. & Wife, 22-30; English v. Foxall, 2 Pet. 595; Hunter v. Bryant, 2 Wheat. 32; Tarbell v. Tarbell, 10 Allen, 278 ; Skillman v. Skillman, 2 Beasl. 403 ; Cartledge V. Cutliff, 29 Geo. 758 ; Albert v. Winn, 5 Md. 66 ; Snyder v. Webb, 3 Cal. 83 ; Smith V. Chappell, 31 Conn. 589. [ 283 ] * 263 HUSBAND AND WIFE. " These marriage settlements," observes Chancellor * 264 Kent, " are benignly * intended to secure to the wife a certain support in every event, and to guard her against being overwhelmed by the misfortunes, or unkindness, or vices of her husband. They usually proceed from the pru- dence and foresight of friends, or the warm and anxious affection of parents ; and if fairly made, they ought to be supported according to the true intent and meaning of the instrument by which they are created." ^ And marriage is of itself pronounced in the supreme court of this land to be not only a valuable consideration to support a marriage settle- ment, but " a consideration of the highest value." ^ But this rule must be taken with some caution. The mar- riage consideration supports every provision with regard to the husband, the wife, and the issue. It is held, also, to extend to step-children by a former marriage.^ It does not, however, in all cases, to collaterals ; * though Sir Matthew Hale and others held formerly that it would, maintaining that the influence of the marriage consideration extended to pur- chasers generally.^ Nor are covenants in favor of strangers supported by the marriage consideration unless specially pro- vided for.^ The consideration of marriage will support a settlement against creditors ; this too it would appear, though the parties both knew of the husband's indebtedness, so long as the provisions of the settlement are not grossly out of pro- portion to his station and circumstances." But if it appear that the celebration of marriage is part of a scheme to defi'aud 1 2 Kent Com. 165. 2 Per Story, J., Magniac v. Thompson, 7 Pet. 348. And see Armfield v. Arm- field, 1 Freem. Ch. 311. 3 Michael v. Morey, 26 Md. 239. Cf. Ardis v. Printup, 39 Geo. 648, with Wol- laston V. Tribe, infra, as to children of a future marriage. * Peachey Mar. Settl. 58, 60, and cases cited ; Davenport v. Bishop, 1 Phil. 701 ; Barliam v. Earl of Clarendon, 10 Hare, 133 ; Ford v. Stuart, 15 Beav. 505 ; Cotterell v. Homer, 13 Sim. 506 ; WoUaston v. Tribe, L. R. 9 Eq. 44. 5 Jenkins v. Kemis, 1 Ch. Cas. 103 ; 1 Lev. 152. 6 Sutton I'. Chetwynd, 3 Mer. 249, per Sir Wm. Grant ; Sugden Law Prop. 153; Peachey Mar. Settl. 61. ^ Campion v. Cotton, 17 Ves. 272 ; Ex parte McBurnie, 1 De G., M. & G. 446 ; Ramsay v. Richardson, Riley Ch. 271; Armfield v. Armfield, 1 Freem. Ch. 311; Jones' Appeal, 62 Penn. St. 324 ; Brunnel v. Witherow, 29 Ind. 123 ; Credle v. Carrawan, 44 N. C. 422. [284] ANTENUPTIAL SETTLEMENTS. * 264 and delay creditors, such settlement will not be allowed to protect the property against just claims of the latter.^ Where fraud has been committed by husband and wife in reference to property embraced in the terms of a settlement, the riohts of a creditor with insufficient notice are some- times upheld as against themselves ; and a wife's settlement of her own property has been so far set aside as to secure paj'ment of her antenuptial debt to the creditor.^ In Neves v. Scott^ wdiich came up on appeal before * the Supreme Court of the United States, the rights * 265 of collaterals under a marriage agreement received con- sideration. And it is declared as the result of the authorities, English and American, that if, from the circumstances under which the marriage articles were entered into by the parties, or as collected from the face of the instrument itself, it appears to have been intended that the collateral relatives, in a given event, should take the estate, and a proper limitation to that effect is contained in them, a court of^equity will enforce the trust for their benefit. They will not be regarded as volun- teers outside of the deed, but as coming fairly within the influence of the consideration on which it is founded ; the consideration extending, in fact, through all the limitations for the benefit of the remotest persons provided for consistent with law. 3 If an agreement be made in writing before marriage, for the settlement of an estate, the settlement, although made after marriage, will be deemed valuable.* This is a well-settled 1 Columbine v. Penhall, 1 Sm. & Gif. 228; Goldsmith v. Russell, 5 De G., M. & G. 555; Peachey Mar. Settl. 63 ; Simpson v. Graves, Kiley Ch. 232. 2 Sliarpe v. Foy, L. R. 4 Cli. 35 ; Smith v. Cliirrell, L. R. 4 Eq. 3J0 ; Chubb V. Stretch, L. R. 9 Eq. 555 ; Obermayer v. Greenleaf, 42 Mis. 304 ; Brame v. McGee, 46 Ala. 170. 3 Neves v. Scott, 9 How. 196 ; ib. 18 How. 268. And see Eaton v. Tillinghast, 4 R. I. 276 ; Buchanan v. Deshon, 1 Har. & G. 280 ; De Barranti v. Gott, 6 Barb. 492; Wallace v. McCullough, 1 Rich. Eq. 426; Parsons v. Ely, 45 111. 232; Mitchell V. Moore, 16 Gratt. 275. * Reade v. Livingston, 3 Johns. Ch. 481 ; Finch v. Finch, 10 Ohio St. 501 ; Izard V. Izard, 1 Bailey Cli. 228 ; Davidson v. Graves, Riley Ch. 219 ; Satter- thwaite v. Emley, 3 Green Ch. 489; Rogers v. Brightman, 10 Wis. 55; Peachey Mar. Settl. 63; Sugd. Vend. & Purch. 13th cd. 5'JO ; Macq. Hus. & Wife, 257. [285] * 265 HUSBAND AND WIFE. rule, and should be constantly borne in mind. There are dicta to the effect that a settlement after marriage, reciting a parol agreement before marriage, is not fraudulent against creditors, provided the agreement had actual existence ; but this point has never been distinctlj'- decided in England ; and some late authorities appear to doubt its correctness.^ The payment of money would, however, make a good considera- tion for such a settlement as against subsequent creditors.^ The language of the statute of frauds has a material * 266 bearing upon all such * cases. Yet very informal agreements are often sustained, rather on liberal than technical construction, the court taking into consideration the fact, that marriage had taken place, or other acts been per- formed, on the strength of the promise.^ With resj)ect to the form of marriage settlements it may be generally observed that equity pays no regard to the exter- nals, but considers only the substantial intention of the parties ; and hence articles or an agreement will be binding between husband and wife without the intervention of trus- tees ; for here the husband himself may be bound to act as trustee.* A strong instance of the liberality of the equity courts in this respect was afforded in an early decision by 1 See Peacliey Mar. Settl. 63 ; Lassence v. Tierney, 1 Mac. & Gor. 571 ; War- den V. Jones, 5 W. R. 447. And see Babcock v. Smith, 22 Pick. 61 ; Simpson V. Graves, Riley Ch. 232. -' Stillman v. Ashdovvn, 2 Atk. 478 ; Brown v. Jones, 1 Atk. 189. And see Butterfield v. Heatli, 15 Beav. 414. * The disposition in this country is ratlier favorable to settlements after mar- riage in pursuance of informal prior agreements. See Livingston v. Livingston, 2 Johns. Ch. 481 ; Resor v. Resor, 9 lud. 347 ; Brooks v. Dent, 1 Md. Ch. 523; West V. Howard, 20 Conn. 581. Other considerations, such as forbe.arance to sue, may intervene. Riley v. Riley, 25 Conn. 154 (1856). And see Miller v. Goodwin, 8 Gray, 542. See, as to the like English practice, Peachey Mar. Settl. 74, 87; Macq. Hus. & Wife, 234; Hammersley v. De Biel, 12 CI. & Fin. 45; Lassence v. Tierney, 1 Mac. & Gor. 571. The numerous dicta in these cases serve rather to obscure than illustrate the principle. A mere oral agreement between the intended husband and wife, followed by marriage and a continued recognition by acts, is lield sufficient as between the parties and those claiming under tiiem, in some of the latest American cases. Southerland v. Soutiierland, 5 Bush, 591 ; Child v. Pearl, 43 Vt. 224. But see Flenner v. Flenner, 29 Ind. 564. * Peachey Mar. Settl. 65; Macq. Hus. & Wife, 242; Logan v. Goodall, 42 Geo. 95. But see Dillaye v. Greenough, 45 N. Y. 438. [286] ANTENUPTIAL SETTLEMENTS- * 266 Lord Keeper Wright. The intended husband gave the in- tended wife a bond conditioned to leave her XIOOO if she should survive him. They married, and of course the bond became void at law. But it was held that in equity this should subsist as an antenuptial agreement.^ Even in law a bond, with conditions properly expressed, may be enforced against the husband to the extent of the penalty therein named ; yet equity, regarding the contract as one for specific performance, will not confine the remedy of the injured party to the penal sum named in the bond ; but, enforcing the real obligations of the bond, will give, if need be, thirty times that sum to her who married on the strength of it. Such is the advantage of equity over the law.^ Letters, also, * if they sufficiently furnish the terms of the agreement, * 267 have been held good marriage contracts.^ And it is now clearly settled that a letter which contains the terms of an agreement, or refers to another pa^r which specifies the terms, is sufficient to take the contract out of the statute of frauds."^ In this connection the use of the term " marriage articles " is properly to be noticed. " When promises and agreements in consideration of marriage," says Mr. Macqueen, " are meant to become the groundwork of settlements, they are called marriage articles. They are often drawn up hastily, and signed on the eve of the nuptial ceremony from want of time to prepare a final deed ; which, however, when ulti- mately executed, if it be in strict conformit}^ with the articles, will supersede them." ^ The American rule is favorable to 1 Acton V. Pierce, 2 Vern. 480 ; Crostwaiglit v. Hutchinson, 2 Bibb, 407 ; Siles V. Fleming, 1 Dev. Eq. 186 ; Kenly v. Kenly, 2 How. (Miss.) 751. 2 See Prebble v. Boghiirst, 1 Swan. 309, before Lord Eldon, cited in Macq. Hus. & Wife, 243 et secj. ; Cannel v. Buckle, 2 V. Wnis. 242 ; Rippon v. Dawding, Anibl. 6G6 ; Peachey Mar. Settl. G5. Bonds have been frequently enforced in this country as constituting a marriage settlement. Aucker v. Levy, 3 Strobh. Eq. l'J7 ; Hunter v. Bryant, 2 Wheat. 32 ; Freeman v. Hill, 1 Dev. & Bat. Eq. 889; Baldwin v. Carter, 17 Conn. 201. 8 Logan V. Wienholt, 1 CI. & Fin. 611. * Hammersley v. De Biel, 12 CI. & Fin. 45; Moorhouse v. Colvin, 15 Beav. 849 ; Peachey Mar. Settl. 67. 5 Macq. Hus. & Wife, 246. [287] *267 HUSBAND AND WIFE. marriage articles, although unskilfully drawn, so long as they are bona fide articles.^ While promises made in consideration of the marriage by a third party, such as the wife's father, may afterwards be enforced against him by the husband, it must appear that the latter knew of the promise, and that it entered as an ingre- dient into the marriage ; and the husband cannot, upon find- ing after marriage, that his wife, while single, had received a letter from her father promising a certain allowance, hold the latter to siDccific performance.^ And courts of equity have frequently refused to enforce marriage agreements on the ground of their being inconsistent, uncertain, and un- * 268 intelligible.^ Particularly * is this found true of loose expressions contained in letters written by relatives of the married parties upon which the attempt is made to render them chargeable. Lord Thurlow, once considering the question whether a letter written by the defendant, which referred to an unsigned agreement, would take the agreement out of the statute of frauds, remarked, " If he had said he never would sign it, he could not have been bound ; but if he said he never would sign it, but would make it as good as if he did, it would be a promise to perform it. If he said he never would sign, because he would not hamper himself by an agreement, it would be too perverse to be admitted.""* And on this last ground Lord Thurlow suffered the defendant in the case to go clear. 1 Neves v. Scott, 9 How. 196; Hooks r. Lee, 8 Ired. Eq. 157; Elvers v. Thayer, 7 Ricli. Eq. 136. See Kinnard v. Daniel, 13 B. Monr. 496 ; ^Montgomery V. Henderson, 3 Jones Eq. 113 ; Smith v. Moore, 3 Green Ch. 485 ; Potts v. Cog- dell, 1 Desaus. 456. 2 Ayliffe v. Tracy, 2 P. Wms. 66 ; Madox v. Nowlan, Beatty, 632. In Cover- dale V. Eastwood, L. R. 15 Eq. 121, the estate of a father was held hound by his written statements of intention to settle the whole of his property upon his daughter, upon the strength of which she married, although tlie father, being at the time a widower, remarried afterwards, and left a widow. s Franks v. Martin, 1 Eden, 309 ; Kay v. Crook, 3 Jur. N. 8. 107 ; Peachey Mar. Settl. 68 ; Quinlan v. Quinlan, Hayes & Jones, Ir. Rep. 785 ; Maunsell v. White, 1 Jo. & Lat. 539. * Tawney v. Crowther, 3 Bro. C. C. 318, cited in Jorden v. Money, 5 Ho. of Lords, 253. [ 288 ] ANTENUPTI^U. SETTLEMENTS. * 268 The result of a long array of diffuse, but exceedingly inter- esting English equity decisions under this head is to establish the following propositions. Firsts that if any one make a representation to another on which he would reasonably act, the party making the representation is bound thereby, and cannot recede from it ; in other words, that a man who, by his deliberate assertion, induces another to enter into obligations, cannot afterwards, by his acts, negative the truth of that assertion.^ Secondly^ that moral obligations in matters of this description are treated in courts of equity as coextensive with legal obligations ; and that while vague and ambiguous representations may be made to persons on marriage, which are only morally binding upon the person making them, though creating reasonable expectation and belief of advantage in the minds of the marrying parties ; yet, where the matter is clearly and distinctly expressed, then the legal obligation fol- lows the moral obligation, and the contract will be enforced by the courts.^ A secret settlement made by a woman upon third persons, while engaged, and contemplating marriage, is liable to be set * aside in equity as a fraud upon the marital * 269 rights of her intended husband. Prima facie^ her transactions as 2b feme sole with reference to her own property are valid both at law and in equity ; it is only because of the fraud that her husband can afterwards obtain relief against them; yet the English courts have gone far in discounte- nancing all conveyances made by the intended wife in dero- gation of the property rights of her intended husband, where made without notice to him.^ The secrecy of the proceeding is a material element from which fraud will be inferred.^ The 1 Money v. Jorden, 15 Beav. 377 ; Pulsford v. Ricliards, 17 Beav. 94. '^ Bold V. Hutchinson, 20 Beav. 259 ; Peachey Mar. Settl. 87. 3 Peachey Mar. Settl. 142, and cases cited ; Doe d. Richards v. Lewis, 11 C. B. 1035 ; St. George v. AVake, 1 Myl. & K. 618 ; Countess of Strathniore v. Bowes, 1 Ves. Jr. 28 ; Macq. Hus. & Wife, 36 ; England i-.. Downes, 2 Beav. 522 ; How- ard V. Hooker, 2 Ch. Rep. 81 ; 1 Eq. Cas. Ab. 59, pi. 1 ; Lance v. Norman, 2 Cas. in Ch. Rep. 79; 1 Eq. Cas. Ab. 59, pi. 2 ; Carleton v. Earl of Dorset, 2 Vern. 17 ; St. George v. Wake, 1 Myl. & K. 629 ; Goddard v. Snow, 1 Russ. 485. < England v. Downes, 2 Beav. 522 ; Macq. Hus. & Wife, 36. ly [ 289 ] * 269 HUSBAND AND WIFE. husband must have been kept in ignorance of the transaction up to the moment of marriage. For, as Lord Chancellor Brougham once observed, if a man, knowing what has been done, still thinks fit to marry the lady, he cannot be per- mitted to allege afterwards that he has been deceived.^ Actual concurrence on the part of the intended husband in his wife's settlement will be even more conclusive against him ; and, even though he were a minor, will preclude all subsequent allegations of fraud on the marital right.^ It is the usual practice with English conveyancers at the present day to make the intended husband a party to all instruments executed by the intended wife in contemplation of or during a treaty of marriage.^ The same general doctrine has been repeatedly declared in the courts of this country ; and secret and voluntary con- veyances, made by a woman contemplating marriage, may be set aside on the husband's subsequent application as a fraud iipon his marital rights.* Nor need she have formally * 270 settled her * whole property in order to come within the prohibition ; any voluntary transfer, under fraudu- lent circumstances, is void, so far as that particular property is concerned.^ But if the husband received notice of the transfer before marriage and chose to marry her notwith- standing, he is without a remedy.^ Though not where he merely heard a vague rumor after he had married.'' And the wife's antenuptial deed purporting to convey her pro23erty in trust for her separate use has been treated as fraudulent.^ 1 St. George f. "VVake, 1 Myl. & K. 610; Peachey Mar. Settl. 145, and cases cited. 2 Slovvcombe v. Glubb, 2 Bro. C. C. 545. 3 Peachey Mar. Settl. 155. * 2 Kent Com. 174, 175, and notes, last ed. ; Spencer v. Spencer, 3 Jones Eq. 404 ; Tucker v. Andrews, 13 Me. 124, 128 ; Williams v. Carle, 2 Stockt. 543 ; Freeman v. Hartman, 45 111. 67. 6 Fletcher v. Ashley, 6 Gratt. 332. 6 Cheslure v. Payne, 16 B. Monr. 618 ; Terry r. Hopkins, 1 Hill Ch. 1. See 1 Story Eq. Juris. § 4U3. And see Cole v. O'Neill, 3 Md. Ch. 174 ; O'Neill v. Cole, 4 Md. 107. ■J Spencer v. Spencer, 3 Jones Eq. 404. But see, as to registration, i»fra, p- 275 ; and Peachey Mar. Settl. 155. 8 Belt V. Ferguson, 3 Grant, 289. And see Duncan's Appeal, 43 Penn. St. 67. [ 290] ANTENUPTIAL SETTLEMENTS. * 270 Lord Thurlow says tlie question in all such cases is wlietlier the evidence is sufficient to raise fraud.^ And from the deci- sions it would appear that some alienations of the wife's property without her intended husband's knowledge will be allowed to stand.^ The facts are always open to inquiry ; and it seems settled that the court is warranted in considering such circumstances as the meritorious object of the convey- ance and the situation of the husband in point of pecuniary means.^ From what has been said, it may readily be gathered that a secret settlement by the intended wife, made before she was courted, is not likely to be set aside, on proof that the com- plainant commenced courting her afterwards.'^ And the hus- band must show, not only that the wife contemplated marriage * with some person at the time of the settle- * 271 ment, but that he was the person intended.*^ A corresponding rule as to fraud wfruld, doubtless, apply to a husband who, before marriage, had made a secret transfer of his own property to his wife's injury ; not, however, with- out regard to the difference which subsists at law between their marital rights in each other's property.^ Indeed, it is sometimes said that any designed and material concealment ought to avoid an antenuptial contract at the will of the party who has been thereby injured." Marriage articles, to make a settlement of real property, should be drawn up only in extreme cases ; though in the case of personalty, more latitude may be allowed ; and 1 Stratlimore v. Bowes, 1 Ves. Jr. 28. 2 Taylor v. Pugli, 1 Hare, 613 ; 2 Roper Hu8. & "Wife, 1G2 ; Peachey Mar. Settl. 147. 3 St. George v. Wake, 1 Myl. & K. 610 ; King v. Cotton, 2 P. Wms. 674. And see Tliomas v. Williams, Mosely, 177 ; Blanchet v. Foster, 2 Ves. Sen. 264 ; Anonymous, 34 Ala. 430; Taylor v. Pugh, 1 Hare, 614; Lewellin v. Cobbold, 1 Sm. & Gif. 376 ; Peachey Mar. Settl. 151. 4 King V. Cotton, 2 P. Wms. 674. 5 England v. Downes, 2 Beav. 622 ; Peachey Mar. Settl. 15 ; Macq. Hus. & Wife, 37 ; Strathmore v. Bowes, 1 Ves. Jr. 22. And see Waters v. Tazewell, 9 Md. 2yl. •> See Leach v. Duvall, 8 Bush, 201 ; Gainor v. Gainor, 20 Iowa, 337. ■J Kline v. Kline, 57 Penn. St. 120 ; KUne's Estate, 64 Penn. St. 122. [291] * 271 HUSBAND AND WIFE. * 272 when drawn * up they should leave as little to con- struction as possible. Yet marriage articles are fre- quently prepared in great haste, and many questions must necessarily arise, as to the intention of the parties ; these the courts of equity endeavor to meet by adopting the intention of the parties as their true guide, and taking it for granted that the articles are merely minutes which the seti'lement may explain more at large, but which are not to be literally followed.! The general rule as to reforming settlements framed upon antenuptial articles is thus laid down by Lord Chancellor Talbot : 2 " Where articles are entered into before marriage, and settlement made after marriage, differing fi'om the articles, this court will set up the articles against the settlement." That is to say, the court will order the settlement to be re- formed. Where both the articles and the settlement are prior to the marriage, at a time when all the parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them, and the articles will be con- trolled accordingly.^ For the discrepany will be presumed to have arisen from some change of mutual intention, while matters remained open. But this rule is not invariable, according to the later authorities ; for any clear and satisfac- tory evidence may be introduced to show that the discrepancy had arisen from a mistake.* Where the settlement expressly declares that it is made in terms of the articles, and yet differs from them, the settlement will be reformed, so as to corre- spond with the articles. This is no contradiction of the general rule ; for where the settlement is expressly mentioned to be made in pursuance of the marriage articles, the inten- tion of the parties is by writing shown to be the same * 273 as when the articles were * drawn, and must be con- strued accordingly. And curiously enough in an Eng- 1 Peachey Mar. Settl. 89-97 ; Macq. Hus. & Wife, 257 ; Trevor v. Trevor, 1 P. Wms. 631 ; Blandford v. Marlborough, 2 Atk. 545 ; Rochfort v. Fitzmaurice, Dru. & War. 18. But see Breadalbane v. Chandos, 2 Myl. & Cr. 711. 2 Legg V. Goldwire, Forrester, 20 ; Macq. Has. «S; Wife, 259. ' Legg V. Goldwire, Forrester, 20; Peachey Mar. Settl. 134. * See Peachey Mar. Settl. 135; Bold v. Hutchinson, 2 Jur. n. 8. 97; 5 De G., M. & G. 567. [292] ANTENUPTIAL SETTLEMENTS. * 273 lish case under this head, though the settlement followed the precise words of the marriage articles, the court reformed it, in order to carry out the actual intention of the parties.^ Mistakes in marriage settlements, either through error or fraud, wiU be corrected in equity ; the principle being that the parties are to be placed in the same situation in which they would have stood, if the error to be corrected had not been committed.^ Many deeds of settlement provide what are called " por- tions." The word " portion " may be used to denote what the wife brings her husband in marriage, and in this sense it cor- responds with the word dos at the civil law, or what we sometimes call her dowry. But in its more special accepta- tion, the word " portion " signifies that part of a person's estate which is given or left to a child. Marriage settlements usually contain some provision to secure portiens for the children of the marriage.^ Double portions may sometimes be created for children ; as if a father should make a provision for a child by marriage settlement, and afterwards provide for the same child by will ; but the presumption is always against such an intent, and in favor of regarding the latter as a sub- stitute for the former.* So, too, marriage settlements frequently contain a covenant on the husband's part to settle all the after-acquired property of the wife. In most of the cases decided under this head, the courts have evidently sought to adapt the covenant to the * presumed intention of the parties ; the question * 274 still being one of intention to be gathered from the contents of the instrument by which the parties have bound 1 West V. Errissey, 2 P. Wms. 350. 2 Kooke V. Lord Kensington, 2 Kay & Johns. 770 ,■■ Peachey Mar. Settl. 565, 576 ; Alexander v. Crosbie, Lloyd & Goold, temp. Sugd. 149 ; Sanderson v. Robinson, 6 Jones Eq. 155; Love v. Graham, 25 Ala. 187 ; Reade v. Armstrong, 7 Irish Eq. n. s. 381 ; Walker v, Armstrong, 2 Jur. n. s. 962 ; Brown v. Bonner, 8 Leigh, 1 ; Ball v. Storie, 1 Sim. & Stu. 210, 219. 3 Wood V. Briant, 1 Atk. 522. For a full discussion of this topic, see Peachey Mar. Settl. 409 et seq., and cases cited. * Ex parte Pye, 18 Ves. 147 ; Peachey Mar. Settl. 492 et seq., and cases cited ; Earl of Durham v. Wharton, 3 CI. & Fin. 155. But the Scotch rule of construc- tion is otherwise. Kippen v. Darley, 3 Macq. 203. [293] * 274 HUSBAND AND WIFE. themselves.^ And the rule of construction is the same, whether damages for breach of covenant be sought at law, or specific performance in equity .^ Such covenants may be on the wife's part ; or they may be conditional.^ Equity sometimes refuses to enforce an antenuptial settle- ment, as between husband and wife, not only because of its fraudulent character as regards the one or the other party, but on the ground that it is improvident. Yet relief of this sort is rarely afforded, and especially so wdiere the husband, not the wife, seeks it.'^ And while the wife may be relieved from an antenuptial contract which bears very harshly upon her property rights, there is no doubt that where she is of competent age she may bargain away her dower by such an agreement ; and that, in general, husband and wife may thus mutually agree to claim no interest in the property of the one who shall die first.^ There is this difference pointed out between promises and agreements in consideration of marriage, and all other agree- ments ; namely, that the contract, though broken by one of the parties, remains binding upon the other. The reason for this is, that such promises and agreements affect not only the rights of the married pair, but those of their offspring ; the children being, in fact, regarded as purchasers.^ But where the performance is sought by the defaulting party, the contract cannot be enforced against the person injured through such default.' The difference thus mentioned is, therefore, a difference which grows out of the peculiar nature of the con- 1 Ramsden v. Smith, 2 Drew. 302 ; Steinberger v. Potter, 3 C. E. Green, 452 ; Withers v. Weaver, 10 Barr, 391. 2 Smith V. Osborne, 6 Ho. Lords, 394 ; Blythe v. Granville, 13 Sim. 190; Tawney v. Ward, 1 Beav. 563 ; Young v. Smith, L. R. 1 Eq. 180 ; Peachey Mar. Settl. 523 ; Macq. Hus. & Wife, 268. As to the application of this covenant to separate property, see Mainwaring's Settlements, L. R. 1 Eq. 180; Milford y. Peile, 17 Beav. 602; Dering v. Kynaston, L. R. 6 Eq. 212; Campbells. Bain- bridge, L. R. 6 Eq. 269. 8 Peachey Mar. Settl. 548. i Dillaye v. Greenough, 45 N. Y. 438; Everitt v. Everitt, L. R. 10 Eq. 405. 5 Tarbell v. Tarbell, 10 Allen, 278 ; Falk v. Turner, 101 Mass. 494 ; Culber- son V. Culberson, 37 Geo. 296 ; Naill v. Maurer, 25 Md. 532; Garrard v. Garrard, 7 Bush, 436. 2 Kent Cora. 210 ; Co. Litt. 244 a ; 1 Roll. Abr. 358. 2 Stra. Rep. 925; 2 Kent Com. 211, and cases cited; Shelley v. (180G), 13 Ves. 56. •* Eraser Parent & Child, 4. * 2 Kent Com. 211 ; 3 P. AVms. 275, 27G ; Ilarg. n. 193 to Co. Litt. lib. 2; Rex !'. Luffe, 8 East, 193. And to the same effect, see Blackburn i-. Crawfords, 3 Wall. 175. 5 Shelley v. , 13 Ves. 56. [329] * 306 PARENT AND CHILD. unless there was evidence, beyond all doubt, that the hus- band could not be the father.^ And it is at this day admitted that the presumption thus established by law is not to be rebutted by circumstances which only create doubt and sus- picion ; but that the evidence against it ought to be strong, distinct, satisfactory, and conclusive.^ So far, indeed, is legitimacy favored at law, that neither husband nor wife can be a witness to prove access or non- access. This is clearly established in England ; ^ and it is understood to be the law likewise in this country, though the decided cases seem to turn upon the admissibility of the wife's testimony.* Such evidence is treated as contra honos mores. Yet the wife is an admissible witness to prove her own adul- tery, and in qiiestions of pedigree ; and husband and wife may prove facts, such as marriage and date of the child's birth ; these may be conclusive as to illegitimacy.^ Much testimony, extremely delicate, is also taken in bastardy and divorce proceedings. When, therefore, the courts shut their eyes so tightly against this proof of access or non-access, per- haps it is not because they are shocked, but le'st they should see illegitimacy established. To carry the presumption of legitimacy so far as to dis- turb the rules of reason is unjust ; for no man should be sad- dled with the obligations of children which clearly do not belong to him. And the rule of evidence in the Eng- * 307 lish courts has been * severely and justly criticised, not without some good results.^ The decision of the House of Lords, in the celebrated Banbury Peerage case, proceeded upon the reasonable assumption that moral as well as physi- i Head v. Head, 1 Sim. & Stu. 150 (1823) ; Banbury Peerage Case, ib. 153 ; Pendrell v. Pendrell, 2 Stra. 925. ^ Hargrave v. Hargrave, 9 Beav. 552; Archley. v. Sprigg, 33 L. J. Ch. 345 ; Plowes V. Bossey, 8 Jur. x. s. 352 ; 10 W. R. 332. 3 Rex V. Inhabitants of Sourton, 5 Ad. & El. 188 ; Patchett v. Holgate, 3 E. L. & Eq. 100 ; 15 Jur. 308 ; In re Rideout's Trusts, L. R. 10 Eq. 41. 4 2 Stark. Evid. 404 ; 1 Greenl Evid. § 344 ; Phillips v. Allen, 2 Allen, 453 ; People V. Overseers, 15 Barb. 286; Parker v. Way, 15 N. H. 45; Dennison V. Page, 29 Penn. St. 420. 5 See 1 Greenl. Evid. § 343, 344; Caujolle v. Ferrle', 23 N. Y. 90. And see Sale V. Crutchficid, 8 Bush, 636 ; Dean v. State, 29 Ind. 483. 6 2 Kent Com. 211, n. ; Eraser Parent & Child, 7. [330] LEGITIMATE CHILDREN IN GENERAL. * 307 cal impossibilities may affect the rule of legitimacy. Here husband and wife occupied 'the same house at the very time the child must have been begotten, and no case of impotency Avas made out, and yet that child was held not to be the child of the husband ; for the testimony as to a moral impossibility was sufficiently strong notwithstanding.^ This case was confirmed by another, where husband and wife had voluntarily separated, but the husband resided at a distance of only fifteen miles, and sometimes visited his wife ; and the wife was delivered of a child, which was pronounced a bastard, from evidence of the conduct of the wife and her paramour. Here it Avas said, " The case, therefore, comes back to the question of fact." ^ Impotency of the husband, and his absence from the realm, suggest then but two classes of cases, and those not the only ones, where children may now be pronounced bastards. " I apprehend," said Lord Langdale, " that evidence of every kind, direct or presumptive, may be adduced, for the purpose of showing the absence of sexual intercourse which, in cases where there has been some society, intercourse, or access, has been called non-generating access. We have, therefore, to attend to the conduct and the feelings, as evidenced by the conduct of the l^arties towards each other and the offspring, and even to the declarations accompanying acts, which are properly evi- dence. Such circumstances are of no avail against proper evidence of generating access ; but they may have weight, when the effect of that evidence is doubtful. If the weight is not such as to convince the minds of those who * have to determine the matter, the effect may only * 308 tend to shake, without removing, the presumption of legitimacy, which in such a case must prevail." ^ In this country, cases have not unfrequently arisen which involve the legitimacy of offspring ; and the more reasonable 1 1 Sim. & Stu. 153. See Nicolas on Adulterine Bastardy, 181, a volume written to show that this case overturns the old law of England. '^ Morris v. Davics, 5 01. & Fin. 463. And see Barony of Saye & Sele, 1 CI. &Fin. N. s. 507; Sibbett v. Ainsley, 3 L. T. n. s. 583, Q. B. ; Eraser Parent & Cliikl, 8 ; Kin- v. Liiffe, 8 East, l'.)3 ; also, Hitchins v. Eardicy, L. R. 2 P. & D. 218, as to admitting declarations of the person whose lcgitiniac\' is at issue. * llargrave v. Hargrave, 9 Beav. 552. [331] *308 PARENT AND CHILD. doctrine favors legitimacy to about the same extent as the later English decisions.^ The presumption of legitimacy is strongly carried, as the cases below cited indicate ; though not so far as to exclude proof of non-access of the husband, or such other fact as might rebut this presumption, and show that the child of a married woman was in reality a bastard.^ In respect of the legitimation of offspring by the subse- quent marriage of their parents, the civil and common law systems widely differ. By the ci^dl and canon laws, two persons who had a child as the fruit of their illicit intercourse, might afterwards marry, and thus place their child to all in- tents and purposes on the same footing as their subsequent offspring, born in lawful wedlock.^ But the common law, though not so strict as to require that the child should be begotten of the marriage, rendered it indispensable that the birth should be after the ceremony.* Let us notice this point of difference at some length. It appears that the law of legitimation per suhsequens matri- monium is of Roman origin ; introduced and promulgated by the first Christian Emperor, Constantine, as history alleges, at the instigation of the clergy. This was an innovation upon the earlier Roman system ; and the object of its introduction was to put down that matrimonial concubinage which had 1 Patterson ;;. Gaines, 6 How. (U. S.) 582 ; 2 Kent Com. 211, and cases cited ; Hemmenway u. Towner, 1 Allen, 209; Van Aernani ?;. Van Aernam, 1 Barb. Ch. 375 ; Wright v. Hicks, 15 Geo. 160. 2 See Van Aernam v. Van Aernam, 1 Barb. Ch. 375 ; Kleinert v. Ehlers, 38 Penn. St. 439; Phillips v. Allen, 2 Allen, 453; Hemmenway v. Towner, 1 Allen, 209 ; State v. Herman, 13 Ire. 502; Tate v Pene, 19 Martin, 548 ; Cannon V. Cannon, 7 Humph. 410 ; State v. Slmmpert, 1 S. C. n. s. 85 ; Strode v. Ma- gowan, 2 Bush, 621 ; Blackburn v. Crawfords, 3 Wall. 175. Collateral proof of legitimacy is not to be favored. See Kearney v. Denn, 15 Wall. 51. But under suitable circumstances the grant of letters of administration may be conclusive in other courts. Caujolle i-. Ferrie, 13 Wall. 465. Formerly in portions of the United States slave marriages were deemed un- lawful, and the offspring illegitimate. Timmins v. Lacy, 30 Tex. 115. But slavery no longer e.xists, and the tendency of our legislation is now to uphold as far as possible former marriages of colored persons, and the legitimacy of their oflTspring. See White v. Ross, 40 Geo. 339 ; Allen v. Allen, 8 Bush, 490. 3 2 Kent Com. 208; 1 Burge Col. & For. Laws, 92. * 1 Bl. Com. 454. [ 332] LEGITIMATE CHILDREN IN GENERAL. * 308 become so universal in the empire.^ Justinian afterwards made this law perpetual.^ Its first appearance in the canon law is found in two rescripts * of Pope Alexan- * 309 der III., preserved in the Decretals of Gregory, and issued in 1180 and 1172.^ These extended the benefits of the marriage to the offspring of carnal love, and not merely to the issue of systematic concubinage. This law of legiti- mation was introduced into Scotland within the range of authentic history,'* It is also admitted, with different modi- fications, into the codes of France, Spain, Germany, and most other countries in Euroj^e.^ The principle to which the law of legitimation per suhse- quens matrimonium is to be referred, has been a subject of controversy. The canonists based the law not on general views of expediency and justice, but upon a fiction which they adopted in order to reconcile the new law with estab- lished rules ; for, assuming that, as a general rule, children are not legitimate unless born in lawful wedlock, they de- clared that, by a fiction of law, the parents were married when the child was born. Such reasoning, by no means uncommon in days when the wise saw more clearly what was right, than why it was so, has not stood the test of modern logic ; and the Scotch courts have placed the rule once more where its imperial founders left it ; namely, on the ground of general policy and justice. " Legitimation is thought to be recom- mended by these considerations of equity and justice, that it tends to encourage what is at first irregular and injurious to society, into the honorable relation of lawful matrimony ; and that it prevents those unseemlv disorders in families which are produced where the elder-born children of the same par- ents are left under the stain of bastardy, and the younger enjoy the status of legitimacy." ^ 1 " Licita eonsuetudo semimatrimonium," Cod. lib. 6, tit. 57. 2 Taylor's Civil Law, 272 ; Eraser Parent & Child, 32 ; 1 Burge Col. & For. Laws, 92, 03. 3 Deer. IV. 17, 1 ; IV. 17, G, cited in Eraser Parent & Child, .3.3. " Tanta est enim vis sacramenti (matrimonii) ut qui antea sunt geniti post contractum matri- moniiun habeantur legitimi." * Eraser Parent & Child, 32, 33. » 1 Burge Col. & Eor. Laws, 101. * Eraser Parent & Child, 33; Munro v. Munro, 1 Rob. II. L. Scotch App. 492. [333] * 309 PARENT AND CHILD. This doctrine of the civil law has found great favor in the United States. It has prevailed for many years in the * 310 States * of Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky, Missouri, Indiana, and Ohio.^ So in Massachusetts, bastards are to be considered legitimate after the intermarriage of their parents and recognition by the father.^ And similar statutes are to be found in Maine, Pennsylvania, Vermont, Indiana, and elsewhere.^ On the other hand, the English law has very strongly op- posed the whole doctrine of legitimation jjer subsequens mat- rimonium. Even so far back as the reign of Henry III. is found a memorable instance w*here the peers refused to change the law in this respect, when urged to do so by the English bishops ; declaring with one voice, quod nolunt leges Anglice mutare, quce hue usque usitatce sunt et ajjpr^ohatce.^ Jealousy of canonical influence may partially account for this conduct, if not prejudice against the civil law generally. Certain it is that most Enghsh jurists have ever since stubbornly main- tained the superiority of their own maxims, which place the immutability of the marriage relation above all the tender promptings of humanity towards innocent sufferers. Even Blackstone vigorously assails the civil-law doctrine, urging against it several rather artificial objections, in the apparent belief that legal consistency is better than natural justice.^ But on the other hand, Selden mentions that the children of John of Gaunt, Duke of Lancaster, were legitimated by an 1 Griffith's Law Reg. passim ; 1 Burge Col. & For. Laws, 101. 'i Mass. Gen. Sts. 1860, c. 91. s Maine Laws, 1852, c. 266 ; Penn. Laws, 1857, May 14 ; Vermont R. S. 1863, c. 56 ; Ind. R. S. 1862, c. 46. And see Graham v. Bennett, 2 Cal. 503 ; Starr v. Peek, 1 Hill (N. Y.), 270; Sleigh v. Strider, 5 Call, 439; Dannelli v. Dannelli, 4 Bush, 51 ; Adams v. Adams, 36 Geo. 236 ; Morgan v. Perry, 51 N. H. 559 ; Brown v. Belmarde, 4 Kans. 41. In some States still another mode of legitimation, for inheritance, if not for all other purposes, is permitted by law ; namely, by the father's formal declaration, properly attested, which is filed in court and recorded. Tliis might be called legitimation by public or judicial record. See Lingen v. Lingen, 45 Ala. 410, 414 ; Pina v. Peck, 31 Cal. 3-59. Recognition of a less formal character suffices for purposes of inheritance in Iowa. Crane v. Crane, 31 Iowa, 296. 4 Stat, of Merton, 20 Henry 3, c. 9 ; 2 Kent Com. 209 ; 1 Bl. Com. 456. 1 Bl. Com. 4.54, 455. [ 334 ] LEGITIMATE CHILDREN IN GENERAL. *310 act of Parliament, in the reign of Richard II., founded on some obscure common-law custom.^ Upon such principles it has been decided by the House of Lords, that where a marriage is in its inception unlaw- ful, being * at a time when the woman's first husband * 311 must have been alive, children born even after the time when it was presumed that the first husband had died, must be pronounced illegitimate ; the mere continuance of the cohabitation after that event being insufiicient without cele- bration to change the character of the connection.^ Nor will an absolute presumption of law be raised as to the contin- uance of life to support such legitimacy ; for in every instance the circumstances of the case must be considered.-^ And so strict is the rule, that where a person, born a bastard, becomes, by the subsequent marriage of his parents, legitimate accord- ing to the laws of the country in which he was born, he is still a bastard, so far as regards the inheritance of lands in England.'^ As to the status of children born after divorce, partial or complete, little can be stated from the books ; for such di- vorces hardly existed at the common law.^ They are probably illegitimate prima facie, if born within an unreasonable time after separation.*^ The issue of marriages rendered null and void are on gen- eral principles necessarily illegitimate. Opposed to this is the civil-law doctrine of putative marriages, first introduced into the canon law by Pope Innocent III. ; which upholds the legitimacy of the children in cases where the parties, or either of them, bona fide believing that they could marry, had en- 1 Selden on Elcta, ch. 9, § 2. And see Barrington, p. 38 ; 2 Kent Com. 209. ^ Lapsley v. Grierson (1848), 1 CI. & Fin. n. s. 498; Cunningham v. Cun- ningham, 2 Dow, 482. •* Lapsley v. Grierson, lb., explaining Rex v. Twyning, 2 B. & A. 386. * Doe d. Birtwhistle v. Vardill, G Bing. N. C. 385; 7 CI. & Fin. 895. And see supra, p. 49; infra, p. 313. 5 See Hu.sband & Wife, supra, ch. 17; 2 Bish. Mar. & Div. uili ed. § 559; Montgomery v. Montgomery, 3 Barb. Ch. 132. « St. George v. St. Margaret, 1 Salk. 123 ; 2 Bish. Mar. & Div. ib. § 740. [33.^] * 3 1 1 PARENT AND CHILD. tered into the contract, while there wds an unknown impedi- ment existing.^ This subject is regulated by statute to a great extent in this countr3% and here again our system conforms to the civil rather than the common law.^ * 312 * Legitimation by rescript of the Emperor appears in the Institutes of Justinian.^ Still later did the Pope assume the power to grant the status of legitimacy ; and in many of the canonical dispensations occur clauses of this sort.* The effect of these high-sounding clauses is now of little con- sequence.^ The English Parliament, by virtue of its tran- scendent power, may render a bastard legitimate and capable of inheriting.*^ This same power has been claimed for the legislatures of the United States.'^ And excej^t so far as leg- islative acts may come under constitutional restraints against impairing the obligation of contracts, there seems no reason why they should not be uniformly upheld. The domicile of a child's origin is to be determined by the domicile of his parents ; or to speak more strictly, of his father. We speak at this time only of legitimate children. The domicile of origin remains until another is lawfully ac- quired. And since minors are not sui juris they may not change their domicile during their minority ; hence they retain the domicile of their parents ; if the parents change their domicile, that of the infant children follows it ; and if the father dies, his last domicile is that of the infant chil- dren.^ The surviving mother may change the domicile of her 1 Eraser Parent & Child, 22 et seq. ; 1 Purge Col. & For. Laws, 96. ' See supixi, p. 25. And see Graham r. Bennett, 2 Cal. 503. Yet there is a case, that of Sir Ralph Sadlier, where Parliament gave relief. See Nicolas Adult. Bast. 61-63. Eraser Parent & Child, 24; Burnett's History, book 1, ch. 19 ; Riddell Peer & Cons. Law, 421. 3 Nov. 74, c. 1, 2 ; and 89, c. 9. < See Fraser Parent & Child, 43. 5 lb. 6 1 Bl. Com. 459. And see stat. 6 Will. 4, c. 22. 7 Beall V. Beall, 8 Geo. 210 ; Vidal v. Commajere, 13 La. Ann. 516. It will be presumed that a statute of tliis kind confers legitimacy only so far as to give the capacity to inherit. Grubb's Appeal, 58 Penn. St. 55. 8 Story Confl. Laws, §§ 45, 46, and cases cited ; 1 Burge Col. & For. Laws, 33; Abington v. North Bridgewater, 23 Pick. 170; Taylor v. Jeter, 33 Geo. 195; [336] LEGITIMATE CHILDREN IN GENERAL. * 312 minor children, provided she do so without fraudulent views to the succession of their estate ; though it would appear that she cannot change it after her remarriage.^ * Some writers have said that when the laws of two * 313 countries are in conflict, the legitimacy or illegitimacy of children is to be determined by the domicile of origin.^ Others again that it is dej)endent upon the lex loci of mar- riage.^ Between these writers there is no real discrepancy ; for in every such case two inquiries are involved, the one whether the marriage was in itself lawful, the other whether the child was legitimate by the marriage. Of the conflict of laws regarding marriage we have already spoken.* That in- volving the status of legitimacy is now under consideration. A conflict manifestly arises between the laws of domicile of origin and subsequent marriage, and the laws of the actual domicile or situs of property, where those of the one country admit legitimation i^er siibsequens matrimonium^ and those of the other do not. As for instance, where children are born, and their parents afterwards intermarry in certain of the United States, or in Scotland, and then remove with their children to England ; or where such children are deemed to have acquired property rights in the last-named country. On this point there is much diversity of opinion. And the English courts have uniformly maintained their distinctive policy with considerable zeal in all doubtful cases. Thus particularly was this done in the case of Birtivhistle v. Vardill^ where a child, legitimate to all purposes in Scotland, was denied the full rights of a lawful child in England.^ Yet the law of foreign countries as to legitimacy is so far respected in Wharton Confl. § 41. But see Ishan v. Gibbons, 1 Bradf. Sur. 70; Somerville V. Somerville, 5 Vcs. 750. ' Potinger v. Wightman, 3 Mer. 67 ; 1 Burge Col. & For. Laws, 39 ; Brown V. Lynch, 2 Eradf. Sur. 214 ; Carlisle v. Tuttle, 30 Ala. 613. And see infra, 412. 'i 1 Burge Col. & For. Laws, 111 ; Fraser Parent & Child, 45. , 3 Story Confl. Laws, § 105; Wharton Confl. §§ 35, 41. * See Husband & Wife, eh. 1, supra. « 7 CI. & Fin. 895; 4 Jur. 1076; ib. 5 B. & C. 438; Story Confl. Laws, § 93 et seq., where the doctrine of Birtwhistle v. Vardill is strongly combated. See Boyes v. Bedale, 12 W. li. 232, before Wood, V. C. ; Story Confl. Laws, 6th ed. § 93 w, n. by Kedfield. And see Goodman v. Goodman, 3 Gif. 643. 22 [ 337 ] * 313 PAEENT AND CHILD. England that a person illegitimate by the law of his domicile of birth will be held illegitimate in England.^ * 314 * The doctrine of general writers is, that the status of legitimacy or illegitimacy, or the capacity to become legitimate per subsequens matrimonium, is governed by the law of the domicile of the child's origin.^ And, since the domicile of origin is that of the father, the great leading fact to be ascertained in snch inquiries will be generally the dom- icile of the father.^ A person born before wedlock, who in the country of his birth is considered illegitimate, will not by a subsequent marriage of his parents in another country, by whose laws such a marriage would make him legitimate, cease to be illegitimate in the country of his birth.* On the other hand, without a subsequent marriage of his parents, lawful by the laws of the land where celebrated, it is clear that any child must remain illegitimate, whatever be the domicile of his origin. By adoption a qvasi parental relation was sometimes con- stituted at the civil law. Adoption is the taking or choosing of another's child as one's own.^ The adoption of children is still regulated in Germany and France, but is not generally recognized in English or American law. But in Massachu- setts it is recently provided that under a judicial decree, ren- dered upon due investigation, any person may adopt as his own the child of others ; and that the child so adopted shall be deemed, for the purposes of inheritance and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoj)tion, the same 1 Munro v. Saunders, 6 Bligh, 468 ; cases cited in Birtwhistle v. Vardill, 9 Bligh, 52. But a foreign legitimation is so far respected in a late case that a succession tax was not laid upon the child as a stranger in blood. Skottowe v. Young, L. R. 11 Eq. 474. In this country the doctrine of Birtwhistle v. Vardill is sometimes followed in matters of inheritance. Smith v. Derr, 34 Penn. St. 126. And this, notwith- standing the child was begotten in the State where the question of inlieritance afterwards arose. Lingen v. Lingen, 45 Ala. 410. 2 1 Burge Col. & For. Laws, 111. And see Skottowe v. Young, supra. 8 Eraser Parent & Ciiild, 45. ♦ Story Confl. Laws, § 106. 5 Inst. I. 11, 1; Bouvier Law Diet. "Adoption." [338] LEGITIMATE CHILDREN IN GENERAL. * 314 as if he had been born to them in lawful wedlock. ^ In Louis- iana, the laws once authorized adoption ; but this was changed by the code of 1808. Yet adoption by special act of the leg- islature is not unknown in that State. ^ There are other States in which adoption is now permitted, and the rights of the pa- rent by adoption are treated substantially as those of a natural parent.^ But our local legislation has sometimes discounte- nanced the adoption of a stranger as co-heir with one's own child.4 1 Mass. Gen. Sts. c. 110. ^ Vidal v. Commajere, 13 La. Ann. 516. s Rives V. Sneetl, 25 Geo. 612; Lunay v. Vantyne, 40 Vt. 501. * Teal V. Sevier, 26 Tex. 516. [339] * 315 PARENT AND CHILD. *315 * CHAPTER II. THE DUTIES OF PARENTS. Three leading duties of parents, as to their legitimate children, are recognized at the common law : firsts to protect ; seeo7id, to educate ; thirds to maintain them. These duties are all enjoined by positive law ; yet the law of the natural affections is stronger in upholding such fundamental obliga- tions of the parental state.^ First, as to protection : that cover or shield from evil and injury which is afforded by the parent. This duty the stronger owes to the weaker, and especially does the father owe it to his child, so long as the latter remains comparatively helpless. This obligation may be shifted in time, as age adds to the strength of the one, and the infirmities of the other. It is to the credit of our civilization that the natural duty of protection is rather permitted than enjoined by any munic- ipal laws ; nature in this respect " working so strongly," to use the forcible words of Blackstone, " as to need rather a check than a spur."^ The strongest illustration of protec- tion at the common law which is furnished by this earned writer, — that of a father who revenged his son's injury by going near a mile and beating the offender to death with a cudgel, — though affording a questionable legal principle, as he puts it, at least shows what the verdicts of our juries are constantly confirming, that the sympathies of human tribunals are with him who defends his own offspring, even when his zeal outruns his discretion.^ 1 1 Bl. Com. 447; 2 Kent Com. 189; Taylor's Civil Law, 383; Puff. b. 4, ch. 11, §§ 4, 5. 2 1 Bl. Com. 450. 5 See 1 Hawk. P. C. 83, cited in 1 Bl. Com. 450 ; and n. by Coleridge, citing Fost. 294, and 2 Ld. Rayra. 1498, in opposition to Blackstoue's remark. [340] DUTIES OF PARENTS. * 316 * A parent may, by the common law of England, * 316 maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quar- rels.^ He may also justify an assault and battery committed in defence of the persons of his children.^ On the other hand, as we shall hereafter see, where he is cruel and devoid of natural affection, his children may be taken from his per- sonal keeping ; nay, he may be subject to punishment for his own misconduct. The doctrine of parental protection seems to have required little or no special judicial discussion in modern times. Second. The second duty of parents is that of education ; a duty which Blackstone pronounces to be far the greatest of all these in importance.^ This importance is enhanced by the consideration that the usefulness of each new member of the human family to society depends chiefly upon his char- acter, as developed by the training he receives in early life. Not the increase of population, but the increase of a well- ordered, intelligent, and honorable population, is to determine the strength of a State ; and, as a civil writer observes, the parent who suffers his child to grow up like a mere beast, to lead a life useless to others and shameful to himself, has con- ferred a very questionable benefit upon him by bringing him into the world.'* Solon excused the children of Athens from maintaining their parents, if they had neglected to train them up in some art or profession.^ So intimately is government concerned in the results of early training, that it interferes, and justly too, both to aid the parent in giving his children a good education, and in compelling that education, where the parent himself, and not the child, is delinquent in improving the opportunities offered. Questions of parental, and more particularly religious education, arise often in English law under the will of the ' 2 Inst. 564. But a parent is not bound to employ counsel to defend tlie suits of his minor cliildren. Hill v. Childress, 10 Yerg. 514. 2 1 Hawk. P. C. 131 ; 1 Bl. Com. 450. See infra, pp. 332, 833. ' 1 Bl. Com. 450. * Puff. Law of Nations, b. 6, ch. 2, § 12. * Plutarch's Lives ; 2 Kent Com. 195. [341] * e316 PARENT AND CHILD. * 317 father. It is laid clown as the rule, that * where one has left no direction in his will, as to the religion in which his children are to be educated, it will be presumed that his wishes were that they shall be educated in his own religion.^ Further, that the religious education of an infant of fifteen will not be changed unless the infant wishes it.^ But no regard is paid to the wishes of a child ten years old.^ The father is allowed to designate the plan of education to be followed with respect to his children after his death. And while, as Lord Cottenham has observed, he has no power to prescribe a particular religion to his child, yet he has indi- rectly the power of effecting his object by the choice of a guardian.^ The English courts of chancery have indeed exercised con- siderable jurisd ction over the education of minor wards: a topic which very seldom engages the attention of American tribunals. While the penal laws against Roman Catholics were in full force in England, it was considered the duty of the Court of Chancery, by analogy to the statute law, to see that all infants under its control should be brought up in the Protestant religion.^ A case is reported in which Lord Cow- per ordered a Roman Catholic girl to be sent to a Protestant school, evidently with a view to her conversion.^ "With the progress of religious toleration came a different rule of prac- tice ; and it is now a question whether, under any circum- stances, the court would interfere with the testamentary guardian, and the infant's religion as designated by the father ; indeed, according to the latest decisions, the Roman Catholic faith a; pears in this respect as much favored as the Protes- tant.' But schemes of education, in cases of disagreement 1 In re North, 11 Jur. 7, V. C. Bruce ; IMacphers. Inf. 555 ; Campbell v. Mackay, 2 Myl. & Cr. 34. 2 Witty V. Marshall, 1 You. & C. N. C. 68. 3 Regina v. Clarke, 7 El. & B. 186. And see Hawksworth v. Hawksworth, L. R. 6 Ch. 539. * Talbot V. Earl of Shrewsbury, 18 L J. 125; Macphers. Inf. 126. See also Hill V. Hill, 8 Jur. n. s. 609. And see Eraser Parent & Child, 82. 5 Macphers. Inf. 123 ; Lady Teynham's Case, 9 Mod. 40. 6 Hill V. Eilkin, 2 P. Wms. 5. And see Blake v. Leigh, Ambl. 306 ; Jac. 264, n. ; In re Bishop Keg. Lib. 1774, cited in JIacphers. Inf. 124. . ^ Talbot V. Earl of Shrewsbury, 18 L. J. 125, per Lord Ch. Cottenham. And [342] DUTIES OF PARENTS. * 317 among guardians, are still prescribed in chancery.^ So the rights of the guardian as * judge of the place of * 318 his ward's education have been sometimes enforced in equity against the ward's own wishes.^ Courts of chancery, in short, have jurisdiction to superin- tend the education of infant chOdren. Yet the Erglish cou. ts seem to have acted rather for the purpose of securing the control of the child's education to the proper person, or up- holding the father's wishes, than to make independent regu- lations of their own according to the child's welfare. In this respect, as well as in enforcing the disabilities of the law against Roman Catholics and dissenters, cliancery was mani festly influenced by considerations of national policy. Should such a subject come befo:e the courts of this coun- try, the}^ might fairly take a different course, more in accord- ance with- American legislation. Our municipal laws in general provide for the infant's educational wants ; and this whole jurisdiction is one of great embarrassment and respon- sibility. We do not find a leading American case decided with direct and sole reference to the education of young chil- dren.^ But there are several late decisions concerning the right of public school boards to issue general regulations con- cerning the admission, suspension, or dismissal of pupils. And in some States the father of a child may apply for mandamus against the board to compel them to admit to the pubhc school his child, who has been unlawfully excluded.-^ Third. The third parental duty is that of maintenance. It see Regina v. Clarke, 7 El. & B. 18G ; Hawks worth v. Ilawksworth, L. R. 6 Ch. 53y. 1 Campbell v. Mackay, 2 Myl. & Cr. 34 ; Macphers. Inf. 555. - Tremain's Case, Stra. 16b; Hall v. Hall, 3 Atk. 721. In Tremain's case, an " infant " went to Oxford contrary to the orders of his guardian, wiio wished him to study at Cambridge. The court sent a messenger to carry him from Oxford to Cambridge ; and upon his repeated disobedience there went another tain to carry him to Cambridge, quam to keep lum there. See Macphers. Inf. 121, 141. =* See 2 Story Eq. Juris. § 1342; Wellesley v. AVellesley, 2 Bligli n. s. 124. * See the topic of Custody, infra; Jones v. Stockett, 2 Bland. 4U',t. 5 People V. Board of Education, 18 Mich. 400. See further, Burdick v. Bab- cock, 31 Iowa, 562 ; Hodgkius v. Rockport, 105 Mass. 475. [843] * 318 PARENT AND CHILD. is a plain precept of universal law that young and tender beings should be nurtured and brought up by their parents ; and this precept have all nations enforced. So well secured is the obligation of maintenance that it seldom requires to be enforced by human laws.^ Are we brought into this world to perish at the threshold by suffering and starvation ? No : but to live and to grow. Some one, then, must enable us to do so ; and upon whom more justly rests that resj^onsibility than upon those who brought us into being? Hence, as Puffendorf observes, the duty of maintenance is laid * 319 on the * parents, not only by nature herself, but by their own proper act in bringing the children into the world. By begetting them, they have entered into a volun- tary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and pre- served.2 Maintenance is that support which one person gives to another for his living. This word, used by common-law writers, corresponds with the civil-law term " aliment." ^ The obligation on the parent's part to maintain the child continues until the latter is in a condition to provide for his own maintenance, and it extends no further, at common law, than to a necessary support.* The Roman system carried this obligation so far that it would not suffer a parent at his death to totally disinherit his child without expressly giving his reasons for so doing.^ And the laws of Athens were to the same purport.^ Blackstone does not appear to approve of carrying natural obligation so far. And he cites Grotius in support of a distinction which limits the child's natural right to necessary maintenance ; what is more than that, depending solely upon the favor of parents, or the positive constitutions 1 2 Kent Com. 189. 2 PuflF. Law of Nations, I. 4, ch. 11 ; 1 Bl. Com. 447. 3 Cf. Macphers. Inf. 210, and Fraser Parent & Child, 85. ♦ 2 Kent Com. 190; 1 Bl. Com. 448. 5 Dig. 28, 230; Nov. 115, c. 3. The statutes of some of the United States favor this doctrine to nearl7 the same extent. See Mass. Gen. Sts. c. 92, §§ 26, 27. 6 2 Potter Greek Antiq. 351. [344] DUTIES OF PARENTS. * 319 of the municipal law.^ Coke observes that it is " nature's provision to assist, maintain, and console the child." ^ The statute 43 Eliz. c. 2, slightly amended by 5 Geo. I. c. 8, points out the English policy in this respect. It is provided by this statute that the father and mother, grandfather and grandmother, of poor, old, blind, lame, and impotent persons shall maintain them at their own charges, if of sufficient abil- ity ; and if a parent runs away and leaves his children, the municipal * authorities, by summary judicial pro- * 320 cess, may seize upon his rents, goods, and chattels, and dispose of them toward their relief.-^ No person is bound to provide a niaintenance for his issue, except where the children are imjDotent and unable to act, through infancy, disease, or accident, and then is only obliged to furnish them with necessaries, the penalty on refusal being no more than twenty shillings a month. " For the policy of our laws, which are ever watchful to promote industry," says. Blackstone, " did not mean to compel a father to maintain his idle and lazy children in ease and indolence ; but thought it unjust to oblige the parent against his will to provide them with superfluities, and other indulgences of fortune ; imag- ining they might trust to the impulse of nature, if the chil- dren were deserving of such favors." ^ Lord Eldon, viewing the same subject afterwards in the light of equity principles, was differently impressed by these penal provisions, and founded the jurisdiction of chancery upon the very meagreness of the common-law remedies against keeping the child from starvation. " Is it," says he, " an eligible thing that children of all ranks should be placed in this situation, that they shall be in the custody of the father ; although looking at the quantum of allowance which the law can compel the father to provide for them, they may be regarded as in a state little better than that of starvation ? 1 Grott. De J. B. et P. I. 2, c. 7, n. 3; 1 Bl. Com. 448. 2 See 2 Kent Cora. 190. 3 1 Bl. Com. 448 ; Stubb v. Dixon, 6 East, 166 ; Macphers. Inf. 210. These statutes (lid not extend to illegitimates or step-children. Tubb v. Harrison, 4 T. R. 118 ; Cooper v. Martin, 4 East, 76. But this is changed by stat. 4 & 5 Will. 4, c. 76. 4 1 Bl. Com. 449 ; Winston v. Newcomen, 6 Ad. & El. 301. [345] * 320 PARENT AND CHILD. The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father." i The stat. 43 Eliz. may be considered as having been trans- ported to the United States as part of our common law. Its provisions have also been re-enacted in many of our * 321 States, * as in New Hampshu-e, Connecticut, and South Carolina. In New York, Massachusetts, and some other States, the provision as to grandjjarents is omitted.^ This feeble and scanty provision of statute law was intended, as Kent observes, for the indemnity of the public against the maintenance of paupers.^ In absence of special statutes to the contrary, the father-in- law is not obliged in this country to maintain his step-children, and consequently is not entitled to their earnings.* Under the pauper acts, it is held that the father's obligation to sup- port his vagabond son, who cannot support himself, does not accrue until after legal proceedings have been instituted; and the furnishing of previous supplies constitutes no legal con- sideration to support a new promise.^ Nor is an insane mother, herself a pauper, under obhgation to support a minor child, or entitled to his earnings.^ In general, the legal obligation of the father to maintain his child under the common law ceases as soon as the child is of age, however wealthy the father may be, unless the child becomes chargeable to the public as a pauper.^ And as the language of stat. 43 EHz. rendered it inapplicable to step- children, so does it apply to blood relations only ; and the husband is not liable for the expense of maintaining his wife's mother,^ nor the father for his daughter's husband.^ But a i Wellesley v. Duke of Beaufort, 2 Russ. 23 (1827). '^ 2 Kent Com. 191, and note; Dover v. McMurphy, 4 N. H. 162; Comm'rs of Poor V. Gansett, 2 Bail. 320. And see Haynes' Adm'r v. Waggoner, 25 Ind. 174. 3 2 Kent Com. 191. * Comnionwealtli v. Hamilton, 6 Mass. 273, 275; Freto v. Brown, 4 ib. G75; Worcester v. Marchant, 14 Pick. 510; Bond v. Lockwood, 33 111. 212. 5 Mills V. Wyman, 3 Pick. 207; Loorais v. Newhall, 15 ib. 159. 6 Jenness v. Emerson, 15 N. H. 486. And see Sanford v. Lebanon, 31 Me. 124 ; Farmington v. Jones, 36 N. H. 271. 7 2 Kent Com. 192; Parish of St. Andrew v. De Breta, 1 Ld. Rayra. 699. 8 Rex V. Munden, 1 Stra. 190. 9 Friend v. Thompson, Wright, 636. [ 346 ] DUTIES or PARENTS. * 321 quasi parental relation may sometimes be established ; and one may stand in loco ijcirentis to another, and thus become respon- sible for the maintenance and education of the latter, on the * principle that the child is held out to the * 322 world as part of his family. In a state of voluntary separation, the husband jirima facie ^ and not the wife, is liable for the support of children h^dng with her ; and if the wife be justified in leaving her husband's house and taking the child with her, she may pledge his credit for the child's necessaries as well as her own, so long as he neglects to make reasonable effort to regain the child's cus- tody.i But the wife carries no such agency with her when divorced, though it be for the husband's fault, and from bed and board only.^ And while in case of eitlier separation or divorce, without orders of custody, the obligation in general continues as before, it may be materially affected by the special circumstances of each case ; while an award of chil- dren to the mother should be presumed to cai:ry with it a transfer of parental duties, as well as of parental rights.^ We pass from maintenance under statute to chancery maintenance. Maintenance, as ordered by courts of equity, has grown into a topic of considerable magnitude, especially under the English system. The rule is, that where an infant has property of his own, and his father is dead, or is not able to support him, he may be maintained out of the income of property, absolutely his own, by the person in whose hands the property is held ; and a court of equity will allow all 1 Kumney v. Keyes, 7 N. H. 571; Kimball v. Keyes, 11 Wend. 32; Walker V. Laigiiton, 11 Fost. HI ; Gill v. Read, 5 R. I. 313. And see Reynolds v. Sweet^er, 15 Gray, 78. ■■2 Hancock v. Merrick, 10 Gush. 41 ; Filler v. Filler, 33 Penn. St. 50 ; Burrilt V. Burrilt, 29 Barb. 124. 3 Stanton v. Willson, 3 Day, 37, appears to carry the mother's right much farther; but its aiitiiority is questionable. We must admit, however, that in a late English case, presenting a strong state of facts, a woman who lived apart from lier husband for sufficient cause, having with her, against her hnsliand's will, their child, of whom a court had given her the custody, was allowed (Cockburn, C. J., dis.) to pledge the husband's credit for the child's reasonable expenses ; she having no adequate means of support. Bazeley i". Forder, L. R. 3 Q. B. 559. See infra, p. 32G. [347] ♦ 322 PARENT AND CHILD. payments made for this purpose, which appear upon investi- gation to have been reasonable and proper.^ As a general rule, the father must, if he can, maintain his infant children, whatever their circumstances may be ; and no allowance will be made him for that purpose out of their property, while his own means are adequate for their support. This principle is clearly established, both in England and America.^ * 323 * But, if the father is unable to maintain his children, the court will order maintenance for them out of their own property.^ And where the question turns upon the father's ability, maintenance is given, not only in case of his bankruptcy or insolvency, but whenever it appears that he is so straitened in his circumstances that he cannot give the child a maintenance and education suitable to the child's fortune and expectations.* The amount of such fortune, as well as the situation, ability, and circumstances of the father, will be taken into account by the court in all such cases. Courts now look with great liberality to the state of facts in each particular case of this kind before them. Thus, there are precedents in the English courts where the father had a large income, and yet was allowed for the maintenance of his infant children, they having an income still larger ; ^ though the increasing liberality of the courts is now chiefly exhibited in their construction of written directions for main- tenance now common in deeds of settlement and other instru- ments, by which property is secured to the infant.^ In this 1 Macphers. Inf. 213; 2 Story Eq. Juris. § 1354. 2 Macphers. Inf. 145, 219 ; Wellesley v. Beaufort, 2 Russ. 28 ; Butler v. But- ler, 3 Atk. 60 ; 2 Kent Com. 191 ; Darley v. Darley, 3 Atk. 399 ; Cruger v. Hey- ward, 2 Desaus. 94; Matter of Kane, 2 Barb. Ch. 375; Addison v. Bowie, 2 Bland. 606 ; Harland's Case, 5 Rawle, 323 ; Myers v. Myers, 2 McCord Ch. 255 Tompkins v. Tompkins, 3 C. E. Green, 303. 3 2 Kent Cora. 191 ; Macphers. Inf 220. 4 Buckworth v. Buckworth, 1 Cox, 80; Macphers. Inf. 220; Newport v. Cook, 2 Ashm. 332 ; Matter of Kane, 2 Barb. Ch. 375. 5 2 Kent Com. 191 ; Jervois v. Silk, Coop. Eq. 52 ; 2 Story Eq. Juris. § 1354 et seq.; Greenwell v. Green well, 5 Ves. 194; Hoste v. Pratt, 3 Ves. 730; Ex parte Penleaze, 1 Bro. C. C. 387, n. 6 See Macphers. Inf 221-223 ; Heysham v. Heysham, 1 Cox, 179. And see Allen V. Coster, 1 Beasl. 201. [ 348 ] DUTIES OF PARENTS. * 323 country there are many instances where the father has been allowed for his child's maintenance, though not destitute. As in a case where the father was guardian of his children, labored for their support, and had been put to increased ex- pense by the death of their mother.^ And again, where his resources were very moderate, and the two children, young ladies, had a comfortable income between them,^ So * where the father was poor and disabled, and his * 324 daughter lived with him.^ Our courts in such cases endeavor to pursue the course which is best calculated to promote the permanent interest, welfare, and happiness of the children who come under its care. " And these," says Chancellor Walworth, " are not always promoted by a rigid economy in the application of their income, regardless of the habits and associations of their period of minority." * In the case before him, the father, who was also guardian of his daughters, had remarried since their mother's death, and his income was not more than suf- ficient to maintain himself and his second wife. The daugh- ters were of ample means, and could afford to contribute towards the expenses of house-keeping, for the sake of living in the family. The Chancellor considered that a home suit- able to their condition in life was much to their advantage ; and, although it appeared that these daughters could have been boarded and educated at a female seminary at less expense, he felt warranted in allowing a liberal sum to the father for their support and education at his ho use. ^ The father may be allowed for the expenses of past main- tenance, if special circumstances exist ; not otherwise, accord- ing to the English rule of the present day.^ But the father's non-residence, and consequent inability to make a seasonable * Harring v. Coles, 2 Bradf. Sur. 349. 2 Matter of Biirke, 4 Sandf. Ch. 617. 8 Watts V. Steele, 19 Ala. 656. And see Godard v. Wagner, 2 Strobh. Eq. 1 ; Beasley v. Watson, 41 Ala. 234; Newport v. Cook, 2 Ashm. 332. •» Matter of Burke, 4 Sandf. Ch. 619. * See Haase v. Roerscliild, 6 Ind. 67 ; Sparhawk v. Sparhawk's Ex'r, 9 Vt. 41. « 2 Story Eq. Juris. Redf. ed. § 1354 a ; Carmichael v. Hughes, 6 E. L. & Eq. 73, per Lord Cranworth ; Ex parte Bond, 2 Myl. & K. 439. And see Presley v. Davis, 7 Rich. Eq. 105. [ 349 ] * 324 PARENT AND CHILD. application for maintenance, is held a special circumstance to justify such allowance.^ The rule in this country, as to restrospective allowances, does not appear to be very strict as concerns the parent.^ But we apprehend that both in England and America maintenance would be allowed the parent from the estate of a full-grown child only on proof of some contract.^ * 325 * A father, even if he be not in needy circumstances, may maintain his children out of any fund which is duly vested in him for that express purpose.* He may also contract that certain property shall be applied to the main- tenance and education of his children, in which case also the contract may be enforced in his favor, without regard to the question of ability ; and on this ground provisions for main- tenance in an antenuptial settlement have been construed in favor of the husband and father.^ But it is clear from the cases, that where the fund is given, as a mere bounty, not- withstanding a provision for maintenance, the father, if of abilitv, must support the child ; ^ and this principle is ex- tended to the father's postnuptial and voluntary settlement upon his children as distinguished from antenuptial con- tractsJ This will not prevent a court from construing such provisions in a father's favor, where the facts show that he ought, on general principles, to receive assistance.^ Where the trustee for an infant, in the exercise of rightful discretion, has paid over to the father, at his request, certain sums of money out of the income of the trust property, the 1 Carmichael v. Huglies, 6 E. L. & Eq. 71. And see Stopford v. Lord Can- terbury, 11 Sim. 82; Bruin v. Knott, 1 Phill. 572; 1 Tamlyn, 22. 2 Matter of Kane, 2 Barb. Ch. 375 ; Matter of Burke, 4 Sandf Ch. 619 ; Myers v. Myers, 2 McCord Ch. 214. s See Tn re Cottrell's Estate, L. R. 12 Eq. 566 ; infra, p. 372. * Macphers. Inf. 220 ; Hawkins v. Watts, 7 Sim. 199 ; Andrews v. Partington, 2 Cox, 223. 5 Mundy v. Earl Howe, 4 Bro. C. C. 224; Stocken v. Stocken, 4 Sim. 152; Macphers. Inf. 220; Ransome v. Burgess, L. R. 3 Eq. 773. 6 Hoste V. Pratt, 3 Ves. 729 ; Hamley v. Gilbert, Jac. 354 ; Myers v. Myers, 2 McCord Ch. 255 ; Jones v. Stockett, 2 Bland. 409. 1 Tn re Kennison's Trusts, L. R. 12 Eq. 422. 8 See Andrews v. Partington, 2 Cox, 223, commented upon in Hoste v. Pratt, 3 Ves. 729. [350 DUTIES OF PARENTS. * 325 father being a bankrupt, it is held that no promise can be im- plied under such circumstances, on the part of the father, to repay to the trustee the sums of money thus applied when he afterwards becomes able to do so ; there should be something to show an express promise of repajauent.^ The mother, after the death of the father, remains the head of the family. She has the like control over the minor chil- dren as he had when living ; and she is then bound to support them, if of sufficient ability .^ This we hold to be the rule most conformable to natural justice ; though there are cases which would seem to exempt her from such obliga- tions.^ The * statute of Elizabeth, to which we have * 326 already referred, expressly includes the mother. And since the tendency of the day is to give the mother a more equal share in the parental rights, it follows that she should assume more of the parental burdens. It is nevertheless clear that the courts show special favor to the mother, as they should ; and, if the child has property, they will rather in any case charge the expenses of his edu- cation and maintenance upon such property than force her to contribute.* Where the court takes away from the father the care and custody of the children, chancery does not call in aid of their own means the property of the father, and it directs mainte- nance out of their own fortunes, whatever may be their father's circumstances.^ But it is held in Illinois that where infants are taken from the custody of their father, and have no property of their own, the father is bound to support them at such rate as the court may order.*^ Local statutes some- times affect the rule in this country ; while in the divorce 1 Pearce v. Olney, 5 R. I. 269. See In re Stables, 13 E. L. & Eq. 61. ' Dedham ?;. Natick, 16 Mass. 140. ^ Whipple !'. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97 ; 2 Kent Com. 191, and cases cited. * lb. ; Haley v. Bannister, 4 Madd. 275 ; Hughes i-. Hughes, 1 Bro. C. C. 388. And see Lanoy v. Duchess of Athol, 2 Atk. 447 ; Ex parte Petre, 7 Ves. 403 ; Macphers. Inf. 224 ; Beasley v. Magrath, 2 Sch. & Lef. 35 ; Anne AValker's Mat- ter, cas. temp. Sugd. 299. 5 Wellesley v. Duke of Beaufort, 2 Russ. 1 ; Macphers. Inf. 224. « Cowls I'. Cowls, 3 Gilui. 435. And see supra, p. 322 ; McCarthy v. Ilinman, 35 Conn. 538. [ 351 ] * 326 PAKENT AND CHILD. courts an order of maintenance for children will sometimes be made on somewhat the same principle as alimony for the wife, notwithstanding the guilty husband loses their custody.^ If the father is alive and not able to maintain his child, maintenance will be allowed without considering the ability of the mother, though she may have a separate income.^ And even the misconduct of the father will not always exclude him from participating in his child's fortune.^ Where a mother has maintained her infant child without the order of the court, upon his decease, she can claim for past maintenance only such sum as will effectually indemnify her for what she has spent, without reference to the amount of his fortune.* She may have made a gift of maintenance to him so as to be precluded from claiming any thing afterwards by way of recompense.^ But in any case the widowed * 327 mother is entitled to a * reasonable allowance out of her children's estate for their maintenance, where her own means are limited.^ Courts of chancery, following a well known principle, usu- ally restrict the extent of a child's maintenance to the income of his property.'^ But where the property is small and the income insufficient for his support, the court will sometimes allow the capital to be broken.^ We have assumed in the cases already considered, that there was some fund in which the infants had an absolute right or interest. Where the interest is merely contingent the rule is necessaril}^ strict.^ Maintenance cannot be allowed to in- fants out of a fund which, upon the happening of the event 1 Milford V. Milford, L. R. 1 P. & D. 715. 2 Macphers. Inf. 224 ; Haley v. Bannister, 4 Madd. 275. 3 Macphers. Inf. 251. See Allen v. Coster, 1 Beav. 202. < Bruin v. Knott, 9 Jur. 979. & In re Cottrell's Estate, L. R. 12 Eq. 566. 6 Wilkes V. Rogers, 6 Johns. 566; Hey ward v. Cuthbert, 4 Desaus. 445 ; Os- borne V. Van Horn, 2 Fla. 360 ; Bradshaw v. Bradshaw, 1 Russ. 528. 7 2 Story Eq. Juris. § 1355 Macphers. Inf. 252. 8 lb. ; Barlow v. Grant, 1 Vern. 255; Bridge v. Brown, 2 You. & C. C. 181 ; Ex parte Green, 1 Jac. & W. 253 ; Osborne v. Van Horn, 2 Fla. 360 ; Newport v. Cook, 2 Ashm. 332. See In re Coe's Trust, 4 Kay & J. 199; Matter of Bost- Tfvick, 4 Jolnis. Cli. 100; Donovan v. Needham, 15 L. J. 193. 9 Ex parte Kebble, 11 Ves. 604. [ 352 ] I DUTIES OF PARENTS. * 327 contemplated by the testator in the bequest of the fund, will not belong to the infants but to some other person.^ Let us here inquire how far the child may bind his father as agent. A father is not bound by the contracts or debts of his son or daughter, even for necessaries, as a rule, uidess the circumstances show an authority actually given or to be legally inferred.^ The principles of agency as between father and child might seem analogous to those which govern the relation of husband and wife ; which last have already been considered at some length. On the one hand, the father should be compelled to discharge his legal and moral obliga- tions as a parent, by providing suitable necessaries ; on the other, he should not be prejudiced by the acts of his impru- dent child. * If then the infant resides at home, it is to be pre- * 328 sumed that the father furnishes whatever is necessary and proper for his maintenance ; and a proper support being rendered, under such circumstances, a third person cannot supply necessaries and charge the father. So far, all is clear. AVherever the infant is sub pofestate jjarentis in fact, there must be a clear and palpable omission of duty in this respect, on the part of the parent, to render him chargeable, unless he has conferred actual authority.^ The converse of this rule has more than once been sug- gested in our American courts; namely, that where the father abandons his duty, so that his infant child is forced to leave his house, he is liable for a suitable maintenance furnished the child elsewhere.* And upon this doctrine was a Connect- icut case based many years ago, where an infant child had 1 Ex parte Kebble, 11 Ves. 604; Errat i'. Barlow, 14 Ves. 202; Turner v. Turner, 4 Sim. 4ci0 ; Matter of Davison, G Paige, 13G. As to rule of procedure in securing maintenance, see further, Macpliers. Inf. 214 et se/j. - 2 Kent Com. 192; Cromwell v. Benjamin, 41 Barb. 5-58; Gordon v. Potter, 17 Vt. 348; Pidgin v. Cram, 8 N. H. 350; Baymond v. Loyl, 10 Barb. 483; Tonikins v. Tomkins, 3 Stockt. 512 ; Van Valkenburg v. Watson, 13 Johns. 480; Mortimore v. Wright, 6 M. & W. 482; Kelley v. Davis, 40 N. H. 187. ^ Tomkins v. Tomkins, 3 Stockt. 512; Townsend v. Burnham, 33 N. II. 27 ; Clinton v. Rowland, 24 Barb. tJ34 ; Keaton v. Davis, 18 Geo. 457. * Owen V. White, 5 Port. 435, and cases cited in the two preceding notes. 23 [ 353 ] * 328 PARENT AND CHILD. " eloped " from his father's house for fear of personal violence and abuse ; and his necessary siij)port and education were furnislied by a stranger.^ It must be admitted that this doctrine of an implied agency, against the father's wishes, such as the common law raises for the wife's protection, ought hardly to be extended in an equal degree to persons too young to be sui juris ; that the theory above advanced is supported rather by dicta than positive adjudication; and that whenever applied, such a rule is to be justified rather by public policy than the well-understood liabilities of the father, as defined by Blackstone. We look at the reports and find that in nearly every instance the father was held to be discharged from the obligation, or else was made liable on other grounds. There can be no doubt that a parent is under a natural obligation to provide necessaries for his minor children. But how that obligation is to be * 329 enforced is * not so clear .^ In New York, there is some confusion of opinion.^ In Vermont, this doctrine of implied agency, against the father's wishes, was disap- proved in a case which discusses the subject fully ; though the facts, it must be conceded, showed no clear omission of parental duty.* But in New Jersey, the rule seems to be enforceable.^ The latest English decisions are clearly against allowing the child to pledge his father's credit for necessaries to enforce a moral obligation. There must be some contract, express or implied, in order to charge him. If a child be turned upon the world by his father, he can only apply to the parish, and they will compel the father, if of ability, to pay for his sup- port. Says Lord Abinger : " In point of law, a father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son, than a brother, or an uncle, or a mere stranger would be. From the moral obliga- 1 Stanton v. Willson, 3 Day, 37. But the point decided was a different one. - 1 Bl. Com. 447; Edwards v. Davis, 16 Johns. 285 ; In re Ryder, 11 Paige, 188 ; 2 Kent Com. 190. 3 Cf. Ra^anond v. Loyl, 10 Barb. 483, with cases, supra. * Gordon v. Potter, 17 Vt. 348. 6 Tomkins r. Tomkins, 3 Stockt. 517. As to the wife's authority to bind her husband for the child's necessaries, see supra, p. 322. [354] DUTIES OF PARENTS. *329 tion a parent is under to provide for his children, a jury are, not unnaturally, disposed to infer against him an admission of a liability in respect of claims upon his son, on grounds which warrant no inference in point of law." ^ But very slight evidence may sometimes warrant the infer- ence that a contract for the infant's necessaries is sanctioned by the father ; so zealous is the court to enforce a moral obli- gation wherever it can. English authority to the same effect is not equally pointed ; ^ but the American rule is certainly humane and liberal in this respect. Thus, the father is held bound for necessaries, where he knows the circumstances, and makes no objection.^ And for the expenses of educa- tion and maintenance * furnished on his general con- * 330 sent, and in his negligence.'* So too, being liable once, the father may be held liable afterwards by implication.^ The doctrine of agency is also extended to general trans- actions, on the principle of master and servant, in a Connect- icut case, where certain articles had been delivered to, and work done for, a college student still in his minority ; and the court held that the father was liable, although the goods were not necessaries ; the e\ddence showing that the father had paid the plaintiff's former account of the same nature, without objection or giving notice not to trust his son further, and had then (without the plaintiff's knowledge) given posi- tive orders to his son to contract no more debts, and had placed him under the care of a friend with instructions to furnish all that was necessary and suitable for him.'' Yet the rule of principal and agent is to be reasonably en- forced ; and in all cases where there appears neither palpable moral delinquency on the part of the parent, nor evidence of 1 Mortiraore v. "Wright, 6 M. & W. 482. And see Shelton v. Springett, 11 C. B. 452 ; 20 E. L. & Eq. 281 ; Seaborne v. Maddy, 9 Car. & P. 497. - Blackburn v. Mackey, 1 Car. & P. 1 ; Law i'. Wilkin, 6 Ad. & El. 781 ; cases of doubtful legal authority. See Macphers. Inf. 514, 515. 3 Swain v. Tyler, 26 Vt. 9; Thayer v. White, 12 Met. 343; Fowlkes v. Baker, 29 Tex. 135. * Thompson v. Dorsey, 4 Md. Ch. 149. * Plotts V. Rosebury, 4 Dutch. 146. And see Deane v. Annis, 14 Me. 26. 6 Bryan v. Jackson, 4 Conn. 288. And see Brown v. Deloach, 28 Geo. 486 ; Deane v. Annis, 14 Me. 26 ; Harper v. Lemon, 38 Geo. 227. [ 355 ] * 330 PARENT AND CHILD. authority actually conferred upon his son, he cannot be held liable for the general contracts of the latter. A conditional offer to pay for goods ordered of a stranger by the child must have been clearly accepted in order to constitute such ratifica- tion as will bind the parent who makes it.^ And in numerous instances have courts refused to make the father liable on the ground of agency .^ So where a child has attained full age the presumption is that he will bind himself by his own con- tracts. Under the latter circumstances a mere request to furnish necessaries does not bind the father, though the son be living with him ; while it is very clear that the father may even thus bind himself by his own independent promise.^ Whenever a minor son has left his father's home, the * 831 * cause should be ascertained, for the disobedience of children is not to be encouraged in any event.^ Under the most favorable aspect of the infant's right to bind his father as agent, a third person furnishing goods must take notice, at his peril, of what is necessary for the infant accord- ing to his precise situation.^ And the oral promise of a father to pay a debt of his son not incurred for necessaries, in con- sideration of the creditors forbearing to sue the son, must be treated as a promise to pay the debt of another, and hence, under the statute of frauds, not enforceable.^ We may here add that this rule of agency may sometimes be allowed to operate for the parent's own benefit as against a third party ; the child who could not bind himself being treated as the parent's agent.''' The parent's duty, according to some authorities, also es- 1 Andrews v. Garrett, 6 C. B. n. s. 262. 2 Eitel V. Walter, 2 Bradf. Sur. 287 ; Raymond v. Loyl, 10 Barb. 483 ; Bush- nell V. Bishop Hill Colony, 28 111. 204. See Loomis v. Newhall, 15 Pick. 159. 8 Boyd I'. Sappington, 4 Watts, 247; Patton v. Hassinger, 69 Penn. St. 311. And see Mills v. Wyman, 3 Pick. 207; Wood v. Gills, Coxe, 449; Norrls v. Dodge's Adm'r, 23 Ind. 190. * Raymond v. Loyl, 10 Barb. 483; Angel v. McLellan, 16 Mass. 28; Weeks V. Merrow, 40 Me. 151. 5 Van Valkenburgli v. Watson, 13 Johns. 480. 6 Dexter v. Blanchard, 11 Allen, 365. ^ Darling v. Noyes, 32 Iowa, 96. [ 356 ] DUTIES OF PARENTS. *33l tends to providing the children with a profession or trade as well as a suitable education. How far the duty of competent provision extends, must depend upon the condition and cir- cumstances of the father. Kent observes that this duty is not susceptible of municipal regulations, and is usually left to the dictates of reason and natural affection.^ 1 2 Kent Com. 202. [357] * 332 PAllENT AND CHILD. 332 * CHAPTER III. THE RIGHTS OF PARENTS. The rights of parents result from their duties, being given them by law partly to aid in the fulfillment of their obliga- tions, and partly by way of recompense.^ As they are bound to maintain and educate, the law has given them certain au- thority over their children, and in the support of that authority a right to the exercise of such discipline as may be requisite for the discharge of their important trust. This is the true foundation of parental power.^ Some of the ancient nations carried the parental authority beyond all natural limits. The Persians, Egyptians, Greeks, Gauls, and Romans tolerated infanticide. Under the ancient Roman laws the father had the power of life and death over his childi-en : on the principle that he who gave had also the power to take away ; ^ and thus did law attribute to man those functions which belong only to the Supreme Being. This power of the father was toned down in subsequent constitutions, and in the time of the Emperor Hadrian the wiser maxim prevailed, " Patria potestas in pietate debet, non in atrocitate consistere ; " for which reason a father was ban- ished who had killed his son. The Emperor Constantino made the crime capital as to adult children ; and infanticide was under Valentinian and Valens punishable by death. Thus was the doctrine of paternal supremac}^ gradually reduced, though at the civil law never wholly abandoned.^ * 333 * The common law, far more discreet, gives the parent only a moderate degree of authority over his 1 1 Bl. Com. 452. 2 2 Kent Com. 203. ' Cod. 8, 47, 10 ; 2 Bl. Cora. 452. < 1 Bl. Com. 452 ; 2 Kent Com. 204 ; 1 Heinec. Antiq. Rom. Jur. 9 ; Dr. Tay- lor Civ. Law, 403-406 ; Forsyth Custody, 3. [358] RIGHTS OF PARENTS. * 333 child's person, which authority reLaxes as the child grows older. With the progress of refinement j)arents have learned to enforce obedience by kindness rather than severity ; and although the courts are reluctant to interfere in matters of family discipline, they will discountenance every species of cruelty which goes by the name of parental rule. The com- mon law gives the right of moderate correction of the child in a reasonable manner : " for," it is said, " this is for the benefit of his education." ^ But at the same time the parent must not exceed the bounds of moderation, and inflict cruel and merciless punishment ; for if he do, he is liable to be punished by indictment. And he may be found guilty of manslaughter, or even murder, under gross circumstances.^ Thus, where a father put his child, a blind and helpless boy, in a cold and damp cellar, without fire, during several days in midwinter, giving as his only excuse that the boy was covered with vermin, he was rightly held subject to indict- ment and punishment for such wanton cruelty .^ So may a parent at the common law be indicted for expos- ure and neglect of his children ; and the heinousness of the offence depends in a great measure upon the proof of simple negligence or wilful cruelty. The parent too who suffers his little child to starve to death commits murder.^ But the child's tenderness of age and helplessness are elements in such cases ; and when children grow up they are presumed to pro- vide for their urgent wants. The topic of parental custody is one of absorbing impor- tance in England and America ; and its principles have received the most ample discussion in the courts of both countries. The fundamental principle of the common law was that the father possessed the paramount right to the cus- tody and control of his minor children, and to superintend 1 1 Hawk. P. C. 130 ; 1 Bl. Cora. 452. 2 1 Russ. Crimes, Grea. ed. 490 ; Regina v. Edwards, 8 Car. &P. Gil ; 2 Bish. Crim. Law, § 714. 3 Fletcher v. People, 52 111. 395 ; Johnson i-. State, 2 Humph. 283. * 4 Bl. Com. 182, 183; 2 Bish. Crim. Law, §§ 688, 712; Regina v. White, L. R. 1 C. C. 311. [ 359 J *333 PARENT AND CHILD. their education and nurture.^ The niother, as such, had little or no authority in the premises.^ The Roman law en- * 334 joined upon children the duty of showing *due rev- erence and respect to the mother, and punished any flagrant instance of the want of it ; but beyond this it seems to have recognized no claim on her part.^ Indeed, the father is permitted by Anglo-Saxon policy to perpetuate his authority beyond his own life ; for he may constitute a testamentary guardian of his infant children.* In case there is no father, then the mother is entitled to the custody of the children ; supposing, of course, the rights of no testamentary guardian intervene.^ She has, as natural guardian, a right to the custody of the person and care of the education of her children ; " and this in all countries," said Lord Hardwicke, " where the laws do not break in." ^ The priority of the surviving mother's right to custody is fre- quently a matter of statute regulation ; ' but her absolute right on remarriage is not so clearly recognized. Her claims, as we shall see hereafter, may conflict with those of a guar- dian. Were these invariable rules, uncontrolled by the courts, unchanged by statute, this common-law doctrine of custody would be as simple of application as unjust. It is neither. And the courts of chancery, in assuming a liberal jurisdiction over the persons and estates of infants, soon made the claims of justice override all considerations of parental or rather paternal dominion, at the common law.^ Thus Lord Thur- low, in a case where it appeared that the father's affairs were 1 Ex parte Hopkins, 3 P. Wms. 151 ; 2 Story Eq. Juris. §§ 1341, 1342 ; 2 Kent Com. 205; Forsyth Custody, 10; People v. Olmstead, 27 Barb. 9, and cases cited; Ex parte M'Clellan, 1 Dowl. P. C. 84. 2 See 1 Bl. Com. 453. 3 Cod. 8, tit. 47, § 4; Forsyth Custody, 5. * Stat. 12 Car. 2, c. 24, re-enacted in most of the United States. See Guar- dian and Ward, infra. 5 See Guardian and Ward, infra. 6 Villareal v. Mellish, 2 Swanst. 536; Forsyth Custody, 11, 109 ; 2 Kent Com. 606 ; People v. Wilcox, 22 Barb. 178 ; Osborn v. Allen, 2 Dutch. 388. So where the father is sentenced to transportation. Ex parte Bailey, 6 Dowl. P. C. 311. " 2 & 3 Vict. c. 54; Mass. Gen. Sts. c. 109, § 4 ; State v. Scott, 10 Fost. 274; Striplin v. Ware, 36 Ala. 87. See Heyward v. Cutlibert, 4 Desaus. 445. 2 Story Eq. Juris. § 1341. And see Butler v. Freeman, Ambl. 302. [360] RIGHTS OF PARENTS. * 334 embarrassed, that lie was an outlaw and resided al)road, that his son, an infant, had considerable estate, and that the mother lived apart from her husband and principally directed the child's * education, restrained the father from inter- * 335 fering without the consent of two persons nominated for that purpose ; and with reference to the objection that the court had no jurisdiction, he added that he knew there was such a notion, but he was of opinion that the court had arms long enough to reach such a case and to prevent a father from prejudicing the health or future prospects of the child ; and he signified that he should act according!}'.^ But the leading case on this subject is that of Wellesley v. The Duke of Beaufort^ which went on appeal from Lord Eldon to the House of Lords ; and in whjcli the learned Lord Chan- cellor's judgment was unanimously affirmed.^ There the children were taken from a father who was living in adultery. In the course of his elaborate judgment in this case, Lord Eldon cited with approbation a dictian of Lord jNIacclesfield, to the effect that where there is reasonable ground to believe that the children would not be properly treated, the court would interfere without waiting further, upon the principle that preventing justice was better than punishing justice.^ The evidence showed that the conduct of the father was of the most profligate and immoral description. It appeared that he had ill-treated his wife, continued his adulterous con- nection to the time of judicial proceedings, and in his letters to his young children had frequently encouraged them in habits of swearing and keeping low company. Lord Redes- dale, in the course of his opinion before the House of Lords, repudiated emphatically the insinuation that j)aternal power is to be considered more than a trust. " Look at all the ele- mentary writings on the subject," he adds : " they say that a father is intrusted with the care of his children ; that he is intrusted with it for this reason, because it is supposed 1 Creuze v. Hunter, 2 Bro. C. C. 4D9, n. ; 2 Cox, 242. Aiul see Whitfield v. Hales, 12 Ves. 492. 2 2 Russ. 1 ; Wellesley v. Wellesley, 2 Bligh x. s. 124 ; Forsyth Custody, 23 et seq. 3 Duke of Beaufort v. Perty, 1 P. Wms. 703, cited in Wellesley v. Duke of Beaufort, supra. [ 361 ] * 335 PARENT AND CHILD. * 336 his natural affection * would make him the most proper person to discharge the trust." ^ But the result of the English authorities is to establish the principle, independently of statutory provisions, that the Court of Chancery will interfere to disturb the paternal rights only in cases of his gross misconduct ; such misconduct seeming, however, to be regarded with reference rather to the interests of the child than the moral delinquenc}^ of the parent. If the father has so conducted himself that it will not be for the benefit of the infants that they should be delivered to him, or if their being with him will injuriously affect their happiness, or if they cannot associate with him without moral contami- nation, or if, because they associate with him, other persons will shun their society, the court will award the custody to another.^ It is held that chancery has nothing to do with the fact of the father's adultery, unless he brings the child into contact with the woman.^ But unnatural crime is other- wise regarded.* Atheism, blasphemy, irreligion, call for inter- ference, when the minds of young children may be thereby poisoned and corrupted ; although in matters of purely relig- ious belief there is of course much difficulty in defining that degree of latitude which should be allowed. Says Lord Eldon, " With the religious tenets of either party I have nothing to do, except so far as the law of the country calls upon me to look on some religious opinions as dangerous to society." ^ Mere poverty or insolvency does not furnish an adequate ground for depriving the father of his children ; not even though a fund is offered for their benefit, conditioned * 337 upon the * surrender of their custody.^ Yet so solici- 1 Wellesley v. TTellesley, 2 Bligh n. s. 141 (.1828). 2 Anonymous, 11 E. L. & Eq. 281 ; s. c. 2 Sim. x. s. 54; Forsyth Custody, 52; De Manneville v. De Manneville, 10 Ves. 52; Warde v. Warde, 2 Phil. 786. 3 Ball V. Ball, 2 Sim. 35 ; Lord Eldon, n. 6 to Lyons v. Blenkin, Jac. 254. The English divorce act indicates the peculiar views prevalent in that country as to adultery committed by a married man. * Anonymous, 11 E. L. & Eq. 281 ; s. c. 2 Sim. x. s. 34. * Lyons v. Blenkin, Jac. 256. See Shelley v. Westhrooke, Jac. 266. 6 Ex parte Hopkins, 3 P. Wms. 152 ; Colston v. Morris, Jac. 257, n. 11 ; [ 362] RIGHTS OF PARENTS. * 337 tous is chancery for the welfare of its wards, that it seems indisposed to sacrifice their large pecuniary opportunities to the caprice of the natural protector. Thus far has chan- cery carried its exception, that if property be settled upon an infant, uj)on condition that the father surrenders his right to the custody of its person, and he, by acquiescing for a time, and permitting the child to be educated in a manner conformably to the terms of the gift or bequest, encourages corresponding expectations, he will not be allowed to dis- appoint them afterwards by claiming possession of the infant. He has in such a case " waived his parental right." ^ The English courts of common law hkewise interfere in questions relating to the custody of infants by writ of habeas corpus^ which, in general, lies to bring up persons who are in custody, and who are alleged to be subject to illegal restraint.^ Lord Mansfield once said that the common-law court is not bound to deliver an infant, when set free from illegal restraint, over to anybody, nor to give it any privilege ; ^ but the later English rule is, that where a clear right to the custody is shown to exist in any one, the court has no choice, but must order the infant to be delivered up to him.* This jurisdiction is less ample than that of the chancery courts, to whose au- thority it must be considered subservient.^ The English rule, up to the year 1839, was there- fore that the * father is entitled to the sole custody of * 338 his infant child ; controllable, in general, by the court only in case of very gross misconduct, injurious to the child. Such a state of things was unjust, since it took httle account of the mother's claims or feelings in a matter which most Macphers. Inf. 142, 143 ; Forsyth Custody, 37 ; Earl &, Countess of Westmeath, Jac. 251, n. c. But see Ex parte Mountfort, 15 Ves. 445. 1 Per Lord Hardwicke, Blak« r. Leigh, Ambl. 307; Powell v. Cleaver, 2 Bro. C. C. 4'JO; Creuze v. Hunter, 2 Cox, 242; Forsyth Custody, 38, 53; Lyons v. Blenkin, Jac. 254, 262. 2 Macphers. Inf. 152 ; Ex parte Glover, 4 Dowl. P. C. 293 ; Forsyth Custody, 17, 54 ; In re Pulbrook, 11 Jur. 185 ; In re Fynn, 2 De G. 457 ; s. c. 12 Jur. 713 ; Rex V. Greenhill, 4 Ad. & El. 624. » Rex V. Delarel, 3 Burr. 1436 ; 1 W. Bl. 409. « Rex V. Isley, 5 Ad. & El. 441. 6 See Wellesley v. Wellesley, 2 Bligh n. s. 136, 142 ; Ex parte Skinner, 9 Moore, 278. [363] * 338 PARENT AND CHILD. deeply interested her. This finall}^ led to the passage of stat. 2 & 3 Vict. c. 54, known as Justice Talfourd's Act, which introduced important changes into the law of parental cus- tody. ^ This act does not appear to have interfered with the father's right of custod}^ further than to introduce new ele- ments and considerations under which that right is to be exercised. The act proceeds upon three grounds : First, it assumes and proceeds upon the existence of the paternal right. Secondly, it connects the paternal right with the marital duty, and imposes the marital duty as the condition of recognizing the paternal right. Thirdly, the act regards the interest of the child.^ If the two considerations of mar- ital dut}^ to be observed towards the wife and of the interest of the child can be attained consistently with the father's retaining the custody of the child, his common-law paternal right will not be disturbed.^ In this country the doctrine is universal that the courts of justice may, in their sound discretion, and when the morals or safety or interests of the children strongly require it, withdraw their custody from the father and confer it upon the mother, or take the children from both parents and place the care and custody of them elsewhere.'^ The rule as to legal preference is essentially that of the common law, with, however, an in- creasing liberality iii favor of the mother ; strengthened, in no slight degree, by positive legislation. Our rule of pro- cedure is somewhat different from that noticeable in * 339 the English system. For though sometimes * the right of custody is to be determined by habeas corpus, and sometimes by proceedings in equity, while very frequently incidental to divorce suits ; in any case, the circumstances will be fully considered by the court, and a decision rendered on general principles of justice. The father has, in America, the paramount right of custody 1 Ex parte Woodward, 17 Jur. 56 ; Forsyth Custody, 137. See Forsyth, ib. 139, 140. 2 Per Turner, V. C, in Ex parte Woodward, 17 E. L. & Eq. 77 ; 17 Jur. 56. 3 Ib. See also Warde v. Warde, 2 Ph. 787. Stat. 8 & 4 Vict. c. 90, empow- ers chancery to assign the care and custody of infants convicted of felony. * 2 Kent Com. 205, and cases cited ; 1 Story Eq. Juris. § 1341. [ 364 ] RIGHTS or PARENTS. * 339 independently of all statutes to the contraiy. But this para- mount right may be forfeited by his misconduct.^ Nor do the decisions in our courts go to the extent of the English rule in sustaining the husband against his wife, despite his immoral behavior or marital misconduct. " It is an entire mistake," says Judge Story, " to suppose that the court is bound to de- liver" over the infant to its father, or that the latter has an absolute vested right in the custody." ^ Xhe cardinal prin- ciple relative to such matters is to regard the benefit of the infant ; to make the welfare of the children paramount to the claims of either parent.^ While States differ as to the extent of the father's claims in preference to the mother, in this latter principle they all agree ; aiid judicial precedents, judicial dicta^ and legislative enactments all lead to one and the same irresistible conclusion. The primary object of the American decisions is then to secure the welfare of the child, and not the special claims of one or the other parent. The English case of Rex y.G-reenhiU,^ which, in effect enabling the father to take his children from his blameless wife and place them in the charge of a woman with whom he cohabited, hastened the passage of Justice Talfourd's Act,^ has been repeatedly condemned in the United States. Indeed, our courts have required no such statute * to prevent them from * 340 taking the custody of any child from one whose paren- tal influence is found to be injurious to the child's welfare ; and if a father wrongs his wife, it is readily j)resumed that he will wrong his children likewise.*^ The American rule is not, 1 2 Kent Com. 205 ; People v. Mercein, 3 Hill, 309 ; People v. Olmstead, 27 Barb. 9; Miner v. Miner, 11 111. 43; Cole v. Cole, 23 Iowa, 433; State v. Baird, 6 C. E. Green, 384; Smith Pet'r, 13 111. 138. But see Gisliwiler v. Dodez, 4 Ohio St. 615. 2 United States i-. Green, 3 Mason, 382. 3 Case of Waldron, 13 Johns. 418 ; People iv Mercein, 3 Hill, 399; Ex parte Schumpert, 6 Rich. 344 ; Wood v. Wood, 3 Ala. 750 ; Gisliwiler v. Dodez, 4 Ohio St. 615. * 4 Ad. & El. 624. * Forsyth Custody, 69, 137. Lord Denman, who had sat in this case, de- clared that there was not one of tlie court who liad not felt ashamed at the stale of the law. See ib. 09, n. 6 Bedell v. Bedell, 1 Johns. Ch. 604 ; Barrere v. Barrere, 4 Johns. Ch. 187, 197 ; 2 Bish. Mar. & Div. 5th ed. § 532 ; Ex parte Schumpert, 6 Rich. 344 ; The People V. Chegaray, 18 Wend. 637. [ 865 ] * 340 PARENT Al^D CHILD. however, one of fixed and determined principles. Much must be left to the peculiar surroundings of each case.^ Proceedings, as to the custody of children, are usually in this country conducted by writ of habeas corpus. And the settled rule with us is that, while the court is bound to free the person from illegal restraint, it is not, bound to decide who is entitled to the guardianship, or to deliver infants to the custody of any particular person ; but this may be done whenever deemed proper. In other words, it is in the sound discretion of the court to alter the custody of the infants, or not.2 Our divorce jurisprudence being, until recently, quite dif- ferent from that of England, further opportunity has been furnished for a departure from the common-law rules which favor the paternal right of custody. The same tribunal which hears the divorce cause has power to direct with whom of the parties, or what third person, the children shall be.^ * 3-11 Like powers are * now conferred upon the English matrimonial court by recent statutes ; and the child's custody may be given to a parent or a third person ; gene- rally to the innocent parent, though with due regard to the child's weKare ; and, in suitable cases, with a right of access to the parent or parents deprived of custody.'* Where the custody of a child is the subject of chancery or divorce pro- 1 Cook V. Cook, 1 Barb. Ch. 639 ; Dailey v. Dailej, "Wright, 514 ; Common- wealth V. Addicks, 2 S. & R. 174. 2 Commonwealth v. Addicks, 5 Binn. 520 ; Armstrong v. Stone, 9 Gratt. 102; Case of Waldron, 13 Johns. 418 ; State v. Smith, 6 Me. 462 ; State ex rel. State V. Paine, 4 Humph. 523 ; Commonwealth v. Briggs, 16 Pick. 203 ; Ward v. Roper, 7 Humph. Ill ; Foster v. Alston, 6 How. (Miss.) 406 ; Stigall v. Turney, 2 Zabr. 286 ; Mercein v. People, 25 Wend. 64 ; State v. King, 1 Geo. Dec. 93 ; State V. Banks, 25 Ind. 495; Bennet v. Bennet, 2 Beasl. 114; Ex parte Wil- liams, 11 Rich. 452 ; State v. Richardson, 40 N. H. 272. 3 2 Bish. Mar. & Div. 5th ed. §§ 526, 530. 4 Stats. 20 & 21 Vict. c. 85, § 35; 22 & 23 Vict. c. 61, § 4. See Ahrenfeldt V. Ahrenfeldt, 1 Hoff. Ch. 497 ; Spratt v. Spratt, 1 Swab. & T. 215; 2 Bish. Mar. & Div. 5th ed. §§ 532-544, and cases cited ; Bedell v. BedeU, 1 Johns. Ch. 604 Chetwynd v. Chetwynd, L. R. 1 P. & D. 39 ; Harding v. Harding, 22 Md. 337 Mallinson v. Mallinson, L. R. 1 P. & D. 221; McBride v. McBride, 1 Bush, 15 Goodrich v. Goodrich, 44 Ala. 670. [366] RIGHTS OF PARENTS. * 341 ceedings, the court will often be justified in making tempo- rary arrangements for his custody. ^ Some American statutes concerning custody are worthy of notice. Following the temper of the times, the New York legislature of 1860 enacted that " every married woman is hereby constituted and declared to be the joint guardian of her children, with her husband, with equal powers, rights, and duties in regard to them with her husband." ^ Such a statute, unexplained, might seem to do away altogether with the paramount claims of the husband. But the courts ap- peared disposed to regard the innovation with little favor ; and the law was in 1862 repealed.^ An earlier statute of New York provides that if the parents hve in a state of sep- aration, without being divorced, and without the fault of the wife, the courts may, on her application, award the custody of the child to the mother.^ The discretion thus conferred upon the courts is a judicial one, however, and is to be exer- cised with due reference to the cause of separation, and the conduct and character of the parties. Legislative provisions of a like tendency are frequently to be met with in other States. Thus in Massachusetts, it is enacted that, pending divorce controversies, the respective rights of the parents shall, in the absence of misconduct, be regarded as equal, and that the happiness and welfare of the children shall determine the custody in which they shall be placed.* And under a still more recent statute in New Jersey, the court is to a certain extent deprived of its discretion in disposing of the * custody of children whose parents are separated, * 342 but not divorced ; for by this statute the custody of 1 Hutson V. Townsend, 6 Rich. Eq. 249; Barnes v. Barnes, L. R. 1 P. & D. 463. 2 People V. Brooks, 3-5 Barb. 85 ; People v. Boice, 39 Barb. 307. In the former case a married woman, who lived apart from her husband, no misconduct on his part being shown, sought under the new statute to obtain custody of the ciiildren. 3 2N. Y. Rev. Sts. 148; 2 Kent Com. 205, n.; People v. Mercein, 3 Hill, 399. And see People v. Brooks, supra. See N. Y. act 18G2, c. 172, § G, which restrains the father from binding his child as apprentice, or parting with his con- trol, or creating a testamentary guardian, without the mother's written assent. * Mass. Gen. Sts. c. 107, § 37. [367] * 342 PARENT AND CHILD. the children under seven years of age is transferred from the father to the mother.^ It is sometimes a question, in proceedings relative to the custody of minors, how far the child's own wishes should be consulted. Where the object is simply that of custody, the rule, though not arbitrary, rests manifestly upon a principle elsewhere often applied ; namely, that after a child has attained to years of discretion he may have, in case of contro- versy, a voice in the selection of his own custodian. The prac- tice is to give the child the right to elect where he will go, if he be of proper age. If he be not of that age, and want of discre- tion would only expose him to dangers, the court must make an order for placing him in custody of the suitable person.^ It is held in England that an agreement by which the father surrenders custody of his child is not binding ; and that he is at liberty to revoke his consent afterwards, and obtain the child by a Avrit of habeas corpus.^ The policy of the rule is otherwise in some Ameiican States. Thus, there is a * 343 Massachusetts case * where a child had been given up at its birth, the mother liaving then died, to its grand- parents, who kept it for thirteen years, at their own expense, without any demand made by the father for its restoration ; and, under these circumstances, the court refused afterwards to change the custody.^ The general doctrine appears to us, on the whole, to be this : that public policy is against the permanent transfer of the natural rights of a parent ; and 1 Bennet v. Bennet, 2 Be.isl. 114. 2 Forsyth Custody, 93, &c. ; Rex v. Greenliill, 4 Ad. & El. 624. Nine or ten years of age has been considered too young ; yet mental capacity appears the real test ; and the wishes of children less than fourteen have been regarded. See Anon., 2 Ves. 274; Ex parte Hopkins, 2 P. Wms. 152; Curtis v. Curtis, 5 Gray, 535 ; People v, Mercein, 8 Paige, 47 ; In re Goodenough, 19 Wis. 274 ; Regina v. Clarke, 7 EL & B. 186; State v. Richardson, 40 N. H. 272. But according to Regina v. Howes, 3 Ell. & Ell. 332, and Mallinson v. Mallinson, L. R. 1 P. & D. 221, si,\teen years is now the limit adopted in English courts within which the child's own choice as to custody may be disregarded. 3 Regina v. Smith, 16 E. L. & Eq. 221. < Pool V. Gott, 14 L. R. 209, before Shaw, C. J. And see In re Good- enough, 19 Wis. 274. [308] RIGHTS OF PARENTS. * 343 that such contracts are not to be specifically enforced, unless in the admitted exception of master and apprentice, to con- stitute which relation requires, both in England and America, certain formalities ; and excepting too in some parts of the United States, where the principles of legal adoption are part of the public policy. American courts hold fast, neverthe- less, to the true interests and welfare of the child ; and hence the contract of a parent unfit to have custody of the child, which surrenders that child, by formal instrument, fair in its terms, to a benevolent institution, for the purpose of having the child brought up in a good family, or to some other suitable third party, has been so far upheld that the child is suffered to remain where he was placed, for the rea- son that his welfare requires it, rather than be returned to the parent who seeks to recover custody once more.^ If a father, after making an assignment of the services or society of his minor child, has retaken the child into his own keeping, the assignee's only remedy on his own behalf (if any he have) is by action on the contract.^ An adjudication of the appropriate tribunal on the question of the custody of an infant child, brought up on habeas corpus^ may be jjleaded as res adjudicata.^ Nor can the father, under the common-law rule, divest himself, even by contract with the mother, of the custody of his children, though he allows them to remain with her for several years.^ Yet the rule in some States is more *344 *flexible.5 1 2 Kent Com. 205 ; State v. Barrett, 45 N. H. 15 ; Dumain v. Gwynne, 10 AHen, 270. The mother, being a suitable person, was allowed to recover cus- tody, in Wishard v. Medaris, 34 Ind. 168. And see Beller v. Jones, 22 Ark. 92. Mayne v. Baldwin, 1 Halst. Cli. 454 ; People v. Mercein, 8 Paige Ch. 67 ; s. c. 3 Hill, 408 ; State v. Libbey, 44 N. H. 321 ; State v. Scott, 30 N. H. 274, estab- lish that a parol transfer is insufficient. ■^ Farnsworth v. Richardson, 35 Me. 267. And see Commonwealth v. M'Keagy, 1 Ashm. 248 ; Lowry v. Button, Wright, 330. * Mercein v. People, 25 Wend. 64. * Torrington v. Norwich, 21 Conn. 543 ; People i'. Mercein, 3 Hill, 408. And see Vansittart u. Vansittart, 4 Kay & J. 62 ; Johnson v. Terry, 34 Conn. 259. 5 Wodell V. Coggeshall, 2 Met. 89. And see State v. Smith, 6 Me. 402. As to custody in matters of guardianship, see infra, p. 448 et stq. 24 [ 369 ] * 344 PARENT AND CHILD. Next to the right of custody of infants comes that of the value of their labor and services. The father, says Black- stone, has the benefit of his children's labor while they live with him and are maintained by him ; and this is no more than he is entitled to from his apprentices or servants.^ This right, like that of custody, rests upon the parental duty of maintenance, and furnishes some compensation to the father for his own services rendered the child. Whether this right remains absolute in the father until the child has attained full age is apparently a matter of doubt. It is certainly perfect while the period of the child's nurture continues. But if this is all, it can be of little consequence, because the child's labor and services are for that period of little or no value ; nor could compensation be thus afforded for the many years when the child was entirely helpless. AR will admit that the father's right continues until the child reaches fourteen. And since the father's guardianship by nature extends through the full term of the child's minority ; since, too, he may by will place a testamentary guardian of his own choice over the infant ; since it is reasonable that the law should set off years of later usefulness against years of earlier helplessness ; in short, since the age of majority is fixed as the period when an infant becomes legally emanci- j)ated from his father's control ; we may fairly assume * 345 that, all other things * being equal, the father is actu- ally entitled to the value of his child's labor and ser- vices until the latter becomes of age. This is the principle assumed by the elementary writers,^ and in most of the judicial decisions;^ though to this opinion Chancellor Kent appears to yield a somewhat doubtful assent.* But the duties and rights of parents are limited, mutually dependent, and in a great degree correspondent with one another. When the father has discharged himself of the obligation to support the child, or has obliged the child to 1 1 Bl. Com. 453 ; 2 Kent Com. 193. 2 1 Bl. Com. 453 ; Reeve Dom. Rel. 290. 3 Day V. Everett, 7 Mass. 145; Benson v. Remington, 2 Mass. 113 ; Plummer V. Webb, 4 Mason, 380 ; Gale v. Parrot, 1 N. H. 28 ; Nightingale v. Withington, 15 Mass. 272 ; Tlie Etna, Ware, 462. * 2 Kent Com. 193. [370] RIGHTS OF PARENTS. * 345 support himself, our courts are reluctant to admit his right to the child's services. Under such circumstances, says a New Hampshire court, " there is no principle but that of slavery which continues his right to receive the earnings of his child's labor." ^ Of the emancipation of children, thus or otherwise secured, we shall speak hereafter.^ The right of action to recover for the services of a minor is * then presumed to be in his father.^ And it * 346 is held that the agreement of a father, merely in con- sideration of natural love and affection, to permit a minor son who lives under the paternal roof as a member of the family to cultivate a crop and receive its proceeds, is revocable by him at any time before the crop is gathered and disposed of by the son.* And the father may charge services rendered by his son, as a master for his apprentice or hired laborer, and consider it his own work.^ The right to sue for ser\dces quantum meruit is likewise prima facie in the father.^ And if a child being of full age chooses to remain with the father, or is imbecile and needs to be harbored at home, the relation may continue so as to entitle the parent, either as such or oh the principle of master and servant, to recover for the child's wages in the same manner.'' The parent may voluntarily relinquish the right to his child's earnings, and may permit the child to earn for himself, receive his earnings, and appropriate them at pleasure. And if the parent authorize a third person to employ and pay the child, payment to the child and not to the parent will be a sufficient discharge. Such an agreement may be in express terms, or it may be implied from circumstances.^ An Ameri- ^ Woods, J., in Jenness v. Emerson, 15 N. H. 489. But in this case the prin- ciple seems to be assumed that the parent's obhgation to support and his riglit to receive wages commence together, continue togetlier, and ought always to terminate together. '^ See i»fra, p. 367 et seq. 3 Dufield l: Cross, 12 111. 397 ; Shute v. Dorr, 5 Wend. 204. See Campbell V. Cooper, 34 N. H. 49. * Stovall v. Johnson, 17 Ala. 14. 5 Brown v. Ramsay, 5 Dutch. 117. But see Jones v. Buckley, 19 Ala. 604. 6 Letts V. Brooks, Hill & Den. 36 ; Van Dorn v. Young, 13 Bapb. 286. 7 Brown v. Ramsay, 5 Dutch. 117 ; Overseers of Alexandria v. Overseers of Bethlehem, 1 Harr. 122 ; infra, p. 372. 8 See Campbell v. Cooper, 34 N. H. 49 ; Jenness v. Emerson, 15 N. H. 489 ; Cloud V. Hamilton, 11 Humpli. 104; Armstrong i'. McDonald, 10 Barb. 300. [371] * 346 PARENT AND CHILD. can court favorably regards contracts of this nature, for the child's benefit, as they are in conformity with the spirit of free institutions.^ And a New York statute provides that unless the parent notifies the minor's employer within thirty days after the commencement of service that he claims * 3-4:7 the wages, payment to * the minor will be good.^ When the parent is a pauper and is maintained by a town, such town is held not entitled to the earnings of a minor child who is not himself a pauper.^ The father may by his own delay forfeit the right of action for his son's wages ; as where the minor agrees to work at certain monthly wages to be paid to himself, and the father, knowing of the agreement, gives no notice of his objection, but waits until the work has been done and payment is made to the child, before making a demand.^ But if the father has given seasonable notice of his dissent and demand to the stranger hiring his son. the fact that the son continues to work against his express dis- sent, and that the stranger notified him to come and take his son away and he neglected to do so, will not preclude him from recovering the wages.^ Nor does the fact that the son has agreed with his father to buy out his time for the remain- der of his minority by jDaying a certain sum therefor, which has not been paid, prevent the father from recovering his wages pending the payment of such sum.^ "SVe may add that whatever private arrangement may exist between the father and his son, unless it is brought to the employer's notice it cannot be set up to justify payment to the minor himself. As for instance, where father and son had secretly agreed that the latter should have his own wages.'^ And the publication by a parent of a notice of his son's emancipation more liberal to the latter than the actual agree- 1 Snediker v. Everingham, 3 Dutch. 143; Cloud v. Hamilton, 11 Humph. 104. ^ N. Y. Laws, 1850, p. 579 j Herrick v. Fritcher, 47 Barb. 589. And see Everett v. Siierfey, 1 Iowa, 356. 3 Jenness v. Emerson, 15 N. H. 486. * Smith V. Smith, 30 Conn. 111. 5 lb. 6 Cahill V. Patterson, 30 Vt. 592. And see Kauffelt r. Moderwell, 21 Penn. St. 222 ; Cloud v. Hamilton, 11 Humph. 104; Whiting v. Earle, 3 Pick. 201. • Kauffelt V. Moderwell, 21 Penn. St. 222. [372] RIGHTS OF PARENTS. * 347 ment between them, will not, as against one who has no knowledge of the publication, estop the father from insisting on such right to his son's wages as the contract between them actually gives.^ But the usage of father and son may be alleged.^ * One who employs the minor son of another cannot * 348 be liable to his father as for breach, of contract, be- cause of such minor's delinquencies. Hence, it is held, that where the father contracts that his son shall work for a specified time and price, and the son leaves his employer before the expiration of the time, against his father's will, the father can only recover for the time of actual employ- ment, although the employer assented to the departure.^ Money intrusted to a minor son for a specific purpose and applied by him, without his father's assent, in compounding for his own crime, may be recovered by the father from the receiver. But if the payment was assented to by the father, or if the money was paid solely as civil damages in settlement of a trespass, whether with or without such assent, the father cannot afterward recover it from the receiver.'^ And so, too, if a father place his minor son to work for another, for no illegal purpose, and without knowledge and assent as to his illegal employment in fact, he is still entitled to compensation for his son's services. As where a son is employed by another in unlawfully selKng intoxicating liquors, the father being ignorant of the nature and character of the services while they were being performed.^ Wages due a minor seaman belong to his father. And pay- ment of such wages to the son, while he was known by his employer to have been less than twenty-one at the time of making the contract, furnishes no defence to an action by the .father, who had no knowledge of his hiring until after the wages * were earned.^ Nor is the father in such * 349 case affected by the terms of the shipping articles, be- 1 Mason v. Hutcliins, 32 Vt. 780. ^ Perlinau v. Phelps, 25 Vt. 478; Canovar v. Cooper, 3 Barb. 115. 3 Hennessy v. Stewart, 31 Vt. 486. 4 Bumliam v. Holt, 14 N. H. 367. ^ Emery v. Kempton, 2 Gray, 257. 6 White V. Henry, 24 Me. 531. See Weeks v. Holmes, 12 Cush. 215. [373] * 349 PARENT AND CHILD. cause it is an express contract which as against him the son has no right to make ; he can claim under a quantum meruit for the value of the services. But mercantile custom may- determine certain questions as to the remedy.^ As to enlist- ments in the army or navy of the United States, the laws contemplate that the contract is personal and for the benefit of the infant ; and pay, bounties, and prize-money in' general, though earned under State laws, are held to belong to the son, and not to the father.^ If a minor son abscond from his father's house, and enter the ser\dce of one who for his labor furnishes the infant a reasonable support, the parent cannot recover the son's wages without deducting the amount of the expense of such sup- port.*^ Where a father furnishes his minor child with clothing, such clothing is the property of the father, and he may maintain an action for the loss and injury thereof; but where he in- trusts the child with a sum of money for general purposes, without specific directions as to its appropriation, and the child buys clothing with it, such clothing is not the property of the father.* The parent may give articles by parol to his child, and afterwards resume them, there being no considera- tion.^ A father has a pecuniary interest in the life of a minor child, and an insurance of the life of such child is not within the rule of law by which wager policies are declared void.^ At the common law a mother has no implied right to the services and earnings of her minor child ; not being bound for the child's maintenance. Nor have her rights or liabili- ties in these respects been usually regarded as equivalent to those of a father, even where she is the only surviving par- 1 Bisliop V. Shepherd, 23 Pick. 492. - United States v. Bainbridge, 1 Mason, 84 ; Baker v. Baker, 41 Vt. 55 ; Banks v. Conant, 14 Allen, 497; Mears v. Bickford, 55 Me. 528; Carson v. Watts, 3 Doug. 350 ; Cadwell v. Sherman, 45 111. 348. 3 Huntoon v. Hazelton, 20 N. H. 388. * Dickinson v. Winchester, 4 Cush. 114; Parmelee v. Smith, 21 111. 620; Prentice v. Decker, 49 Barb. 21. 5 Cranz v. Kroger, 22 111. 74 ; Stovall v. Johnson, 17 Ala. 14. 6 Mitchell V. Union, &c., Ins. Co., 45 Me. 104. [374] RIGHTS OF PARENTS. ♦ 349 ent.i But the modern tendency in this country, if not in England, is certainly to treat a mother's rights with consider- able favor, especially if she be a widow ; and in several late cases her title has been upheld in her minor child's earnings, so far as concerns third persons ; it appearing that she was the surviving parent, and that the child had no probate guar- dian and was not emancipated. Whether such title on her part could be so well enforced against the child's own consent and to the extent of depriving the child of the fruits of his own toil, may be reasonably doubted.^ As a rule, the parent has no rights over the child's general property. The law treats legacies, gifts, distributive shares, and the like, which may vest in a person during minority, as his own property ; and the modern practice is to require the appointment * of a guardian in such cases, to man- * 350^ age the estate until the child comes of age.^ Under no pretext may the father appropriate such funds to himself, or use them to pay his own debts. The same may be said of the child's lands. And the parent's investment of his child's money for the latter's benefit will be protected against all creditors of the former, who are chargeable with notice of the child's rights.* The rights of parents in relation to the custody and ser- vices of their children may be enlarged, restrained, and lim- ited, as wisdom or policy may dictate, unless the legislative power is limited by some constitutional prohibition.^ But it is held that the State has no constitutional right to interfere ' 1 Bl. Com. 453 ; Commonwealth v. Murray, 4 Binn. 487 ; Riley v. Jameson, 3 N. H. 29 ; People v. Mercein, 3 Hill, 400 ; Morris v. Law, 4 Stew. & Port. 123 ; Pray v. Gorliam, 31 Me. 240; Snediker v. Everinghani, 3 Dutch. 143. See Clapp V. Greene, 10 Met. 439 ; Campbell v. Campbell, 3 Stockt. 2G8. ^ See Matthewson v. Perry, 37 Conn. 43.5 ; Hammond v. Corbett, 60 N. H. 501 ; Hays v. Seward, 24 Ind. 352. * Keeler v. Fassett, 21 Vt. 539; Jackson v. Combs, 7 Cow. 36; Miles v. Boy- den, 3 Pick. 213 ; Cowell v. Daggett, 97 Mass. 434 ; Kenningham v. M'Laughlin, 3 Monr. 30. And see Guardian and Ward, infra. But see Selden's Appeal, 31 Conn. 548. * McLaurie v. Partlow, 53 111. 340. 6 United States v. Bainbridge, 1 Mason, 71, per Story, J. ; Bennet v. Bennet, 2 Beasl. 114; State v. Clottu, 33 Ind. 409. [375] ♦350 PARENT AND CHILD. with the parent and take charge of a child's education and custody, on the mere allegation that he is " destitute of proper parental care, and is growing up in mendicancy, ignorance, idleness, and vice." ^ 1 People V. Turner, 55 111. 280. " Sunday laws " of Vermont do not prevent a father from journeying to see his children who are properly absent from home. McClary v. Lowell, 44 Vt. 116. [376] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 351 * CHAPTER IV. *351 THE parent's rights AND LIABILITIES FOR THE CHILD'S INJURIES AND FRAUDS. Two distinct topics are to receive treatment in the present chapter, under the head of the parent's rights and liabilities for the child's injuries and frauds. First, the parent's right of action where his child is the injured party. Second, th^ parent's liability to action where his child is the injuring party. First, Where a child suffers wrong, he has his action for the personal injury. But besides this the parent may usually claim indemnity for loss of his child's services, to which should be added the incidental expenses incurred in conse- quence of the injury. Hence arises a cause of action in the parent per quod, the foundation of which is a loss of the child's services. There are various tortious acts, by which a parent may be deprived of his child's services ; and the law is generous in securing compensation for the injury. But in this connection the parental relation is not strictly to be considered ; the rule being that a parent has no remedy for an injury done to his child by the wrongful act of another, unless that child can be treated in law as his servant.^ This is laid down positively as the English rule. Thus, in a case where tire plaintiff brought an action against the de- fendant for carelessly driving over and injuring the plaintiff's child, so that the plaintiff was obliged to expend a large sura of money in doctors and nurses, and it appeared that the 1 2 Hilliard Torts, 518-529 ; Addison Torts, 697 ; Grinnell v. Wells, 7 M. & Gr. 1041 ; Rogers v. Smith, 17 Ind. 323 ; Hatfield v. Roper, 21 Wend. 615 ; Dennis i-. Clark, 2 Cush. 347. [377] * 351 PARENT AND CHILD. child was only two years and a half old, and incapable of performing any act of service, it was held that the parent's action was not maintainable.^ " The gist of the action," it is here said, " is the loss of services, and therefore, though the relation of parent and child subsists, yet, if the child is * 352 incapable of performing any services, the foundation of the action fails." ^ And it is doubtful whether the father, as such, can even maintain a special action for the expenses necessarily incurred by him in having so young a child cured of the injury.^ In this country, the rule appears to be more liberal towards the parent. A New York court observes, that it is quite questionable whether the father can be deprived of his right to sue for the loss of services, on account of the child's youth ; though, of course, the right may be forfeited by the parent's culpable negligence.* And in Massachusetts it is decided that if an infant child, a member of his father's household, and too young to be capable of rendering any service to his father, is wounded or otherwise injured by a third person, or by a mischievous animal owned by a third person, under such circumstances as to give the child himself an action against such person, for the personal injury, and the father is thereby necessarily put to trouble and expense in the care and cure of the child, he may maintain an action against such person for indemnity. The court laid down the rule, however, with much caution.^ Statutes enlarging the rights of widows, dependent parents, and others, in torts occasioned by the negligence of railroad corj)orations and other common carriers, are to be found in England and America. Under such statutes it is frequently provided that where a child is thus killed, the child's admin- istrator may sue for the j^arent's benefit. The English stat- ute, known as Lord Campbell's Act, 9 & 10 Vict. c. 93, has 1 Hall V. Hollander, 7 Dowl. & Ry. 133 ; 4 Barn. & Cress. 6G0. 2 Bayley, J., in ib. 3 See Addison Torts, 697 ; Grinnell v. Wells, 8 Scott N. R. 741. Contra, Hall V. Hollander, supra. * Hartfield v. Roper, 21 Wend. 615. 5 Dennis v. Clark, 2 Cush. 347. [ 378] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 352 given rise to suits of tliis kind ; but the rule is laid do^vn that such actions are- not maintainable without some evidence of actual pecuniary damage, some loss of service.^ But the dam- ages are to be calculated in reference to a reasonable expectation of pecuniary benefit, as of * right or other- * 353 wise, from the continuance of the life ; and where the parent is old and infirm, and the son had been earning good wages, though not at the precise period of death, such cir- cumstances are to be favorably' considered in estimating the amount of damages.^ And since, as we have seen, the par- ent's right of suit is founded upon the loss of a child's ser- vices, there are circumstances under which such suits might be brought, notwithstanding the child was of age, contrar}^ to the general rule.^ Trespass lies per quod for loss of services occasioned by assault and battery of the child.'^ The true question here, as elsewhere, seems to be, whether a loss of service was con- sequent upon the injury. For assault and battery on the high seas, there is likewise a remedy in admiralty.^ If the parent has finally relinquished his right to the ser- vices of his child, he cannot claim such damages ; they belong to the master, if any one ; but this question of relinquishment is for determination on the usual principles.^ And where an injury is inflicted upon a child while living with and in the service of another, the proper remedy of the father is trespass on the case for the reversion, as it were, of the child's ser- vices ; as where a person who hired the son of another, put him upon a vicious horse, so that he was thrown and had his leg broken.'^ And the parent's negligence may, in certain I Duckworth v. Johnson, 4 Hurl. & Nor. 653. See further, Frank v. New- Orleans, &c., K. R. Co., 20 La. Ann. 25 ; Pennsylvania R. R. Co. v. Bantoni, 54 Penn. St. 495. 'i lb. ; Franklin v. South-Eastern R. R. Co., 3 Hurl. & Nor. 211. 3 Pennsylvania R. R. Co. v. Keller, 67 Penn. St. 300; Mercer v. Jackson, 54 111. 397. And see infra, p. 358. * Hammer v. Pierce, 5 Harrins;. 171 ; Hoover u. Heim, 7 Watts, 62 ; Plummer V. Webb, Ware, 75 ; Cowden v. Wright, 24 Wend. 429. But as to indictments, see Hearst v. Sybert, Clieves, 177. 5 Plummer v. Webb, Ware, 75. 6 Arnold v. Norton, 25 Conn. 92. ■J Wilt V. Vickers, 8 Watts, 227. [379] * 353 PARENT AND CHILD. cases, defeat his own right of action for loss of service alto- gether, as Avell as that of the child for the injury suffered.^ The death of the child, after the injury, though it may, on familiar principles, terminate the right to sue for the child's tort, does not affect the parent's consequential right of action. The death occurring before the commencement of the suit, if in consequence of the injury, only aggravates the parent's remedy ; if the death is occasioned by other causes, it leaves the remedy as it stood before.^ * 354 * Every person who knowingly and designedly inter- rupts the relation subsisting between parent and child, by procuring the child to depart from the parent's service, or by harboring and keeping him after he has quitted his home, commits a wrongful act, for which he is responsible to the parent. The offence is known as enticement, and this ap- plies to the relation of master and servant. In such cases, again, the parent sues on a principle analogous to that of the master : namely, because of an alleged loss of service ; or pos- sibly in trespass vi et annis upon the more reasonable allega- tion of loss of the child's society.^ And this action will lie on behalf of the mother after the father's death.* The quo animo of the defendant in such suits is always material. To afford shelter is one thing ; to encourage filial disobedience another. The mere employment of a runaway child does not amount to enticement.^ But where it appears that the defend- ant, knowing that the son had absconded from his father, boarded him in his family and allowed him to work on his farm as he pleased, doing this with the intention of aiding or encouraging, or with the knowledge that it aids and encour- ages the son to keep away from the father, he is liable to this action.^ 1 See infra, p. 571 ; Glassey v. Hestonville, &c., R. R. Co., 57 Penn. St. 172. 2 Plummer v. Webb, Ware, 80; Winsmore v. Greenbank, Bull. N. P. 78; Ihl V. Street R. R. Co., 47 N. Y. 317. 3 Lumley v. Gye, 2 El. & B. 224 ; Kirkpatrick v. Lockhart, 2 Brev. 276 ; 1 Woodes. Lee. 451 ; Sargent v. Mathewson, 38 N. H. 54 ; 3 Bl. Com. 140. * Jones V. Tevis, 4 Litt. 25. 5 Keane v. Boycott, 2 H. Bl. 511 ; Butterfield v. Ashley, 6 Cush. 249. c Sargent v. Mathewson, 38 N. H. 54 ; Everett v. Sherfey, 1 Iowa, 356. [380 ] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 354 A parent may maintain a libel in the admiralty for the wrongful abduction of his child, a minor, and carrying him beyond the seas.^ Abduction is an offence similar to entice- ment, but implying the use of force rather than persuasion. Where father and mother live apart, the mother's assent to the child's enlistment as a sailor may sometimes affect the father's remedies.^ But some parental ratification of the son's contract of enlistment should be shown in order to defeat the parent's right of action ; and similar principles apply in the case of an army enlistment ; there being, doubt- less, cases where a parent may sue one at law for unlawfully harboring and concealing his young child, and so inducing him to enlist as a soldier.^ * There must be a reasonable limit to suits by the * 355 parent for loss of his child's society and services. Hence it is now well settled in this country that the parent cannot sue for enticing his child into a marriage against the parent's consent.* For a forcible abduction, resulting in an imperfect marriage, and aggravated cases of a like nature, where, in fact, there is not a valid union, there might be a remedy. So the marriage statutes not unfrequently provide penalties to be meted out to offenders, who aid and encourage infants in evading statutes requiring the consent of parents or guardians. But for drawing children of suitable age into a marriage which pleases themselves, the law affords no re- dress ; nor can it punish for the sake of parental discipline. And even though the match be unhappy, yet marriage must supersede the filial relation.^ Nor can a parent sue a school teacher, school trustees, or others, for excluding his children 1 Steele v. Tliacher, Ware, 91 ; Plummer v. Webb, 4 Mason, 380. See Cut- ting V. Seabury, Sprague, 522; Weeks v. Holmes, 12 Cush. 215. 2 Wodell I'. Coggeshall, 2 Met. 89. And see Worcester v. Marcbant, 14 Pick. 510. ' Caughey w. Smith, 47 N. Y. 244. * Jones V. Tevis, 4 Litt. 25 ; Hervcy v. Moseley, 7 Gray, 479 ; Goodwin v. Thompson, 2 Greene (Iowa), 329. But see Hills i;. Hobert, 2 Root, 48. ^ Marrying a parent's son and heir was a civil injury at common law during the continuance of the military tenures, for thereby the parent lost the value of his child's marriage ; but this injury ceased long ago, with the right on wliich it was founded. See 3 Bl. Com. 140, and notes. [381] *355 PARENT AND CHILD. from school ; the right of action, if any, being in the child ; ^ and there being no real loss of services consequent upon the affront. In short, the general rule is to place all actions by the parent on the sole ground of value of the lost services of the child, who is regarded as a servant for the purpose of the suit ; not to punish, for the sake of the father, those who wrong the child.^ And the most liberal view of the subject indicated by American courts, is to regard the parent as in a measure entitled to the society and solace of his own chil- dren ; though this reasonable position is not clearly supported by authority. Even in seduction suits the same technical principle * 356 is rather * absurdly, though not always unkindly, ap- plied. The foundation of the action by a father to recover damages against the wrong-doer for the seduction of his daughter, has been uniformly placed, from the earliest times, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which he is supposed to have a legal right or interest.^ And without some allegation and proof of loss of service the action is not maintainable. Thus where it was alleged by the father that his daughter was a poor person, maintaining herself by her labor and per- sonal services, and not of sufficient ability to maintain herself otherwise ; and that by being debauched she became unable to work, and had to be maintained by her father at consider- able expense ; all this was held insufficient allegation of loss of service.^ So it is not enough to show that the father had 1 Spear v. Cummings, 23 Pick. 224; Donahoe v. Richards, 38 Me. 376; Boyd V. Blaisdell, 15 Ind. 73 ; Stephenson v. Hall, U Barb. 222. Contra, Roe v. Deming, 21 Ohio St. 666. ■i Hall V. Hollander, 4 B. & C. 660; Grinnell v. Wells, 7 M. & Gr. 1033; Eager v. Grim wood, 1 Exch. 61. But see dictum in Stephenson v. Hall, 14 Barb. 222. 8 Grinnell v. Wells, 7 M. & Gr. 1033 ; Eager v. Grinowood, 1 Exch. 61 ; Van Horn V. Freeman, 1 Halst. 322 ; McDaniel v. Edward, 7 Ired. 408 ; Sutton v. Huffman, 32 N. J. 68 ; Knight v. Wilcox, 14 N. Y. 413; Bartley d. Richtmeyer, 4 Comst. 38. * Grinnell v. Wells, ib. [ 382] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 356 apprenticed his daughter to the defendant to learn millinery, and had paid him a large sum of money to instruct her in a trade, but that the defendant seduced her and rendered her unable, by reason of pregnancy, to learn the trade.^ But the evidence of service may be very slight ; and the making tea, milking cows, or doing any household work at the command of the parent, is esteemed quite sufficient to constitute the relationship of master and servant, when the girl is residing with her father and mother ; 2 and the right of action once clear, damages far in excess of the loss of service are recov- erable. Thus will justice, seeing the goal clearly, drive straight towards it, regardless of obstructions ; either finding an avenue or making one. But to render this action maintainable, the parent must have * a genuine right to his daughter's services ; * 357 however slight the services which may be exacted. If therefore the daughter, at the time she was seduced, was at the head of an estabhshment of her own, and her father was living with her as a visitor in her own house, she cannot be treated as holding the subordinate position of a servant, and the action will not lie.^ Nor can a parent sue, where the child is really in the service of another, and, by permission of her mistress, comes home to render slight assistance from time to time.* Nor where the child is seduced while in the service of another and then returns home and remains there in a state of pregnancy.^ But if she is away only on a tem- porary visit, and still forms part of her father's family, and makes herself serviceable to him while she is at home, such temporary absence constitutes no impediment. to an action by the father for damages.^ In a word, the question is whether there was at the time the injury was committed a bona fide 1 Harris v. Butler, 2 M. & W. 639. 2 1 Addison Torta, 698, 701 ; Bennett i'. Allcott, 2 T. R. 166 ; Tiiompson v. Ross, 6 Hurl. & Nor. 16 ; Manvell v. Thomson, 2 Car. & P. 303 ; Vossel v. Cole, 10 Mis. 634 ; 2 Kent Com. 205, last ed., and cases cited. 3 Manley v. Field, 7 C. B. n. s. 96. 4 Thompson v. Ross, 6 Hurl. & Nor. 16 ; Hedges v. Tagg, L. R. 7 Ex. 283; Blaymire v. Haley, 6 M. & W. 66. » Davies v. Williams, 10 Q. B. 726. e Griffiths v. Teetgen, 15 C. B. 344; 28 E. L. & Eq. 871. See further, 1 Addison Torts, 698; Evans v. Walton, L. R. 2 C. P. 616. [383] *357 PARENT AND CHILD. relation of constructive service between parent and child, which suffered by the wrongful act of the defendant. There is a late New Jersey case where it appeared in evi- dence that the daughter was about twenty-two years of age when seduced, and was living a part of the time with her brother, who occu]3ied a farm about a mile from her father, and part of the time with her father. While the rule was fully approved that the father and daughter must have stood in the relation of master and servant at the time the injury was committed, it was further held that it was not necessary that the daughter should be in the actual service of the father at the time of the seduction, if the relation of master and servant then existed between them ; in other words, that the service rendered need not be house service, nor service from day to day, but that any accustomed service lost by the * 358 injury would sustain the action.^ * So in a very recent English case the plaintiff's daughter, being under age, left his house and went into service. After nearly a month the master dismissed her at a day's notice, and the next day, on her way home to her father's house, the defendant seduced her. It was held that as soon as the real service was termi- nated by the master, whether rightfully or wrongfully, the girl intending to return home, the right of the father to her ser- vices revived, and that there was, therefore, sufficient evi- dence of service to maintain an action for the seduction .^ This, the court admitted, was carrying the doctrine of con- structive service very far. " The action, no doubt, is founded on the special ground of loss of service (this is not very cred- itable, perhaps, to our law), but the action is substantially for the aggravated injur}- that the father has sustained in the 1 Sutton V. Huffman, 32 N. J. 58. And see Greenwood v. Greenwood, 28 Md. 870 ; Emery v. Gowen, 4 Me. 33. In tliese and some other cases, there is a manifest tendency to exclude a presumption of emancipation, so as to leave the parent's remedy unimpaired. The rule in Virginia is more strict. Lee v. Hodges, 13 Gratt. 726. In New York, tiie doctrine of Martin v. Payne, 9 Johns. 387, and other cases, led to much confusion, by permitting suits to be brought where there was in reality no loss of service sustained. But in the later cases the courts have returned to the strictness of the English rule. Bartley v. Richt- meyer, 4 Comst. 38. And cf. earlier and later notes to 2 Kent Com. 205. •■i Terry v. Hutchinson, L. R. 3 Q. B. 599 (1868). And see Evans v. Walton, L. R. 2 C. P. 615. [384] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 358 seduction of the child." ^ These cases illustrate the generous disposition with which the courts uphold a parent's right of action in seduction suits ; and it is here probably that the bounds should be placed to this rule of a daughter's service entitling the parent to sue for damages. It is not necessary that the daughter should be under ao-e in order that the parent may maintain the action for seduc- tion. The important question is, whether emancipation in fact had taken place at the time of the injury ; for if the re- lation of master and servant exists between the father and his grown-up daughter, however this relation may have been created, the right of action is complete.^ And even where a married woman separated from her husband, returned to her father's house and lived with him, performing various acts of service, it was held that as against a wrong-doer it was suffi- cient to prove that there was the relationship of master and servant de * facto? So where one stands in loco * 359. parentis, he may recover damages, as an actual parent would ; as in the case of an orphan living with a relation, or a friend and benefactor, and rendering such domestic attend- ance and obedience as is usually rendered by a daughter to her father.4 But the parent cannot maintain an action for the seduction of a daughter over twenty-one and working out on her own account.^ And \^hile as surviving parent the mother might sue for her daughter's seduction under circum- stances showing service rendered her, it is held that a mother cannot maintain an action for the seduction of her daughter while the father was alive, though the illicit offspring was not born until after the father's death.^ The wrongful act for which the parent sues must be the 1 Per Cockburn, C. J., in Terry v. Hutchinson, L. R. 3 Q. B. 5U9 (1808). - 1 Addison Torts, 700; Sutton v. Huffman, 32 N. J. 68; Greenwood i-. Greenwood, ^8 Md. 370 ; Stevenson v. Belknap, 6 Iowa, 97. * Harper v. Luffkin, 7 B. & C. 387. * 1 Addison Torts, 700 ; Irwin v. Dearnian, 11 East, 23 ; Edmondson v. Macliell, 2 T. R. 4; Williams v. Hutcliinson, 3 Comst. 312; Maguinay v. Saudek, 5 Sneed, 146; Ball v. Bruce, 21 111. 161. 5 George i-. Van Horn, 9 Barb. 533. « Vossel V. Cole, 10 Mis. 634; Gray v. Durland, 60 Barb. 100. Statutes en- larging the rights of married women sometimes extend the mother's action. Badgley v. Decker, 44 Barb. 677. 25 ■[ 385 J * 359 PARENT AND CHILD. natural and direct cause of the injury for which damages are sought, and the damages recoverable its necessary and proxi- mate consequence. To this principle is to be referred a curi- ous case in New York.^ But mental illness directly resulting from the injury is, of itself, sufficient to support an action for loss of services ; and such a suit might be maintainable, not- withstanding seduction was followed neither by pregnancy nor sexual disease. ^ Where a person hires a girl as a servant for the purpose of withdrawing her from her family and seducing her, this is fraud, and the parent's right of action is not thereby forfeited ; for in such a case the new relation of master and- servant is not bona fide created, and the former relation may be held to have continued.^ As to the amount of damages, cases of seduction stand on a peculiar footing. The ground of action is the loss of ser- vices ; yet the rule is well established that neither this * 360 nor the * medical expenses are all that the parent can recover. Lord EUenborough, in his day, declared the principle inveterate, and not to be shaken, that, in estimating damages, the jury might go beyond the mere loss of service, and give damages for the distress and anxiety of mind which the parent had sustained in being deprived of the society and comfort of his child.^ So must the situation in life and cir- cumstances of the parties be taken into consideration.^ " In point of form," observes Lord Eldon, " the action only pur- ports to give a recompense for loss of service ; but we cannot shut our eyes to the fact that it is an action brought by a parent for an injury to her child, and the jury may take into their consideration all that she can feel from the nature of 1 Knight V. Wilcox, 14 N. Y. 413. See Eager v. Grimwood, 1 Exch. 61 ; Boyle V. Brandon, 13 M. & W. 738 ; Reddie v. Scoolt, Peake, 240 ; 1 Addison Torts, 701, as to the various grounds of defence in seduction suits. - Manvell v. Thompson, 2 Car. & P. 303 ; Seager r. Sligerland, 2 Caines, 219 ; Abrahams v. Kidney, 104 Mass. 222. 3 Speight V. Oliviera, 2 Stark. 435; 2 Kent Com. 205 ; 1 Addison Torts, 699; Dain v. Wyckoff, 18 N. Y. 45. 4 Irwin I). Dearman, 11 East, 23. * Andrews v. Askey, 8 Car. & P. 9. [386] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 360 the loss. They may look upon her as a parent losing the comfort, as well as the service, of her daughter, in whose virtue she can feel no consolation ; and as the parent of other children whose morals may be corrupted by her example." ^ These principles are applied both in England and America. In other suits, such as for enticement, the measure of damages applied is liberal, though the rule is somewhat con- flicting in different States. It is a general principle, that where servants are enticed away, or forcibly abducted, the jury may award ample compensation for all the damage re- sulting from the wrongful act.^ A parent can recover dam- ages for the prospective value of the services of a young child injured or killed by an act of negligence.^ Med- ical expenses for the care * and cure of the child are, * 361 of course, recoverable. And even the expense of the mother's sickness which was caused, in an extreme case, by the shock to her feelings, has been treated as a proper item of special damage.* So, it would seem, are the costs of prosecuting the suit.^ But the negligence of^ parents, having the care of a young child, will defeat their right of action, if not that on the child's own behalf.^ Nor can the parent re- cover for lacerated feelings, as well as for other injuries to the child, as in seduction suits." But local statutes will sometimes ' Bedford v. M'Kowl, 3 Esp. 120 ; Robinson v. Burton, 5 Harring. 335 ; Klop- fer V. Bromme, 26 Wis. 372; Pence v. Dozier, 7 Bush, 133; Dain v. Wyckolf, 18 N. Y. 45. Seduction may be a statutory misdemeanor. State r. Bierce, 27 Conn. 319. See further on this subject, Wliite v. Campbell, 13 Gratt. 573 ; Sel- lars V. Kinder, 1 Head, 134 ; Bracy v. Kibbe, 31 Barb. 273 ; 1 Addison Torts, 703 ; Eager v. Grimwood, 1 Exch. 61 ; Verry v. Watkins, 7 Car. & P. 308 ; Richardson v. Fonts, 11 Ind. 466; Reed v. Williams, 5 Sneed, 580; Bolton v. Miller, 6 Ind. 262; Zerfing v. Mourer, 2 Greene (Iowa), 520 ; Vossel v. Cole, 10 Mis. 634 ; 2 Kent Com. 205, last ed. 2 Gunter v. Astor, 4 Moore, 15 ; 1 Addison Torts, 704 ; Lumley v. Gyc, 2 El. & Bl. 216 ; Magee v. Holland, 3 Dutch. 86. 3 Supra, p. 353; Drew v. Sixth Avenue R. R. Co., 26 N. Y. 49; Ford v. Monroe, 20 Wend. 210; Hoover v. Heim, 7 Watts, 62; Franklin v. South- Eastern R. R. Co., 3 Hurl. & Nor. 211. But see Williams v. Hutchinson, 3 Comst. 314. * Ford V. Monroe, 20 Wend. 210. * Wilt v. Vickers, 8 Watts, 227. 6 Kreig v. Wells, 1 E. D. Smith, 74 ; Glassey v. Ilestonville, &c., R. R. Co., 57 Penn. St. 172. " Penn. R. R. Co. v. Kelly, 31 Penn. St. 372 ; Cowden v. Wright, 24 Wend. 429. [387] * 361 PARENT AND CHILD. affect the question of damages here as well as the right of action itseK.^ Second. As to the parent's liability to action, where the child is the injuring party. The question is sometimes asked, how far a father is responsible, in damages, for the torts and frauds of his infant child. We have already seen that the husband's responsibility for his wife's injuries at the common law is founded upon his right, by marriage, to her entire prop- erty. Very different is the relation of parent and child, where, it is now plain, the father has little more than the right to claim his child's wages, so far as the infant's property is concerned. Yet some have been misled into the belief that the two cases are entirely analogous ; and they would hold the father liable for his son's wrongful acts, as a husband for the wife's. It is held in Pennsylvania, that the father may be sued in trespass for an injury committed by his son, when they ride together in the father's team, and the act is com- mitted in the latter's presence.'^ Whether the principle can be safely carried farther, is extremely doubtful. In Missouri, on the other hand, and with better reason, it is decided that a father is not responsible for an assault committed by his infant son, without his sanction ; not even though the child was known by him to be of a vicious temper.^ The same rule, with more caution, has been applied in New * 302 York, * in a case where it was shown that a minor daughter, in her father's absence, and without his authority or approval, wilfully set his dog, not ordinarily a vicious animal, upon the plaintiff's hog, which was thereby bitten and killed."^ For such injuries an infant is answerable at law, out of his own estate ; at least, if he is old enough to have known bet- ter.^ But how as to the parent's liability ? For that is the 1 M'Cartliy v. Guild, 12 Met. 291 ; Kennard v. Burton, 25 Me. 39. 2 Strohl V. Levan, 39 Penn. St. 177. And see Lashbrook v. Patten, 1 Duvall, 316. 8 Baker i;. Ilaldeman, 24 Mis. 219; Paul v. Hummel, 43 Mis. 119. * Tifit V. Tifft, 4 Denio, 175. And see McManus v. Crickett, 1 East, 106 ; Foster v. Essex Bank, 17 Mass. 479. 6 Campbell i'. Stakes, 2 Wend. 137 ; Bullock v. Babcock, 3 ib. 391. [ 388 ] PARENT'S RIGHTS, ETC., FOR CHILD'S INJURIES. * 362 present issue. The principles of the Roman law cannot be cited to much advantage, in support of such liability, on the score of agency, or otherwise ; since under that system, the child was little better than the slave of his father ; and even as to slaves, it was considered at the time of the Institutes, that it would be very unjust, when a servant did a wrongful act, to make the master lose any thing more than the servant himself.^ The modern rule of the civil law, in European countries, is to make every person responsible for injuries caused by the act of persons and things under his dominion ; but a father incurs no responsibility for the act of his minor child, if he can prove that he was not able to prevent the act which gives rise to the liability .^ This point received some attention in a late English case, where the father of a young man, about seventeen or eigh- teen, was sued for trespass and false imprisonment. The plaintiff was property-man at a theatre, of which the defend- ant was lessee. The young man, minor son of the defendant, acted as his father's treasurer. The plaintiff, in his character of property-man, presented to the treasurer an account, con- taining some wrongful items of disbursement. The defend- ant, conceiving this to be an intentional fraud on the part of the plaintiff, dismissed him from his employment. His son, thereupon, without consulting the father, indiscreetly caused the plaintiff * to be apprehended by a policeman, * 363 and taken to the station on a charge of obtaining money by false pretences. The plaintiff went before a magistrate, and was remanded, but was ultimately discharged. After the remand, the son told his father what he had done ; the latter did not prohibit him from proceeding in the matter, but said that as the son had begun it, he would not interfere. The court decided that these facts showed neither a previous authority nor subsequent ratification by the father, sufficient to render him liable for his son's conduct, and on that ground dismissed the suit.^ 1 Smith's Diet. Greek and Roman Antiq. "Novalis Actio." Inst. lib. 4, tit. 8, by Saunders. 2 Civil Code France, art. 1384 ; Cleaveland v. Mayo, 19 La. 414. See Baker V. Haldeman, 24 Mis. 219. 3 Moon v. Towers, 8 C B. n. s. 611. [389] * 363 PARENT AND CHILD. The opinions of the several judges in this ease, though ex- pressed by way of dicta, exhibit considerable reluctance to hold the father liable, as a trespasser for his son's torts. Says Willes, J., " The tendency of juries, where persons under age have incurred debts, or committed wrongs, to make their rela- tives pay, should, in my opinion, be checked by the courts. No man ought, as a general rule, to be responsible for acts not his own." 1 And says the Chief Justice : " Suppose the son had knocked the plaintiff down, and the father had said, ' I think it served him right,' would that be such a ratification of the son's act as to make the father liable as a trespasser ? " ^ 1 Per Willes, J., approved by Byles, J., ib. Williams, J., duh. 2 Per Erie, C. J., ib. As to the injuries of a servant, and his master's liability, see " Master and Servant," infra. [390] DUTIES AND RIGHTS OF CHILDREN. * 364 * CHAPTER V. *364 DUTIES AND RIGHTS OF CHILDREN, WITH REFERENCE TO THEIR PARENTS. " The duties of children to their parents," says Black- stone, " arise from a principle of natural justice and ret- ribution. For to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after ; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age ; they who by sustenance and education have enabled their offspring to prosper, ought in return to be sup- ported by that offspring in case they stand in need of assist- ance." 1 Upon this principle rest whatever duties are enjoined upon children to their parents by positive law. The Atheni- ans compelled children to provide for their father when fallen into poverty .2 And Kent, enforcing the same precept, cites several other historical precedents less to the purpose.^ Perhaps this principle could not have been better expressed than in these words of Blackstone ; but it is to be observed that the obligation, as a legal one, is somewhat vague and in- definite, extending little farther than the succor of parents in distress. Gratitude, certainly, is what all parents true to their trust have the right to expect ; but whether it is due to those who were negligent and unfaithful to their offspring may admit at this day of much doubt. In other words, honor and reverence are justly awarded according to one's deserts. The child, when full grown, naturally marries and assumes paren- tal liabilities of his own ; and in the usual course of * things adults, whether father or son, will prudently * 365 provide for their future as well as their present wants. I 1 Bl. Com. 453. ^ 2 Potter's Antiq. 347-351. 3 n Kent Com. 207. [391] * 365 PARENT AND CHILD. Some have thought it the duty of fathers to leave property to their children at their death, — a principle somewhat at con- flict with this right to lean upon their children for their own maintenance. Yet exceptional cases must occur where a father, faithful to his own obligations, is yet left, through misfortune, penniless in his old age ; and here the voice of nature bids the children aid, comfort, and relieve. Municipal law quickens the child, and says, " If your parent, however vagabond and worthless, becomes imable to maintain himself, the public shall not relieve him as a pauper ; you, his children, being of sufficient means, must assume the burden." We speak not here of the mother, whose moral claims upon her children, if her ow^n husband prove incapable, are much stronger; yet it must be admitted that the municipal law makes no great distinction on her behalf. Thus may be explained what appears now a well-settled rule at the common law : namely, that there is no legal obli- gation resting upon a child to support a parent ; that, while the parent is bound to supply necessaries to an infant child, an adult child, in the absence of positive statute, is not bound to supply necessaries to his aged parent.^ But statutes have been enacted, both in England and most parts of the United States, to enforce this imperfect legal obligation, usually to the extent of relieving cities and towns from the support of paupers. Such is the tenor of the Eng- lish statutes of 43 Eliz. and 5 Geo. I., to which allusion has already been made ; which declare in effect that the children, being of sufficient ability, of poor, old, lame, or impotent per- sons, not able to maintain themselves, must relieve and main- tain them.2 Ingratitude, to use the word in a more general sense, the parent may punish still further, as other stat- * 366 utes prescribe, by disinheriting * the undutiful children by will : ^ a punishment found by no means terrible in cases which arise under the statute of Elizabeth. The moral 1 Eeeve Dom. Rel. 284 ; Rex v. Munden, 1 Stra. 190 ; Edwards v. Davis, 16 Johns. 281 ; Lebanon v. Griffin, 45 N. H. 558 ; Stone v. Stone, 32 Conn. 142. 2 Supra, ch. 2 ; 2 Kent Com. 208. 3 N. Y. Rev. Sts. p. 614 ; 2 Kent Com. 208 ; and see Ex parte Hunt, 5 Cow. 284. [ 392] DUTIES AND RIGHTS OF CHILDREN. * 366 obligation of honor and reverence still remains clear and unquestioned, so far as parental faithfidness has earned it ; doubtful in its more extended application ; yet alwa3's a favor- ite theme of the poet and dramatist ; and never to be lightly esteemed among men.^ The law does not imply, then, a promise from the child to pay for necessaries, furnished without his request to an indi- gent parent ; and the natural obligation can only be enforced in the mode pointed out by statute.^ The promise of a child to pay for past expenditures in relief of an indigent parent is not binding in law.-^ But for necessaries or other goods fur- nished to the parent, or for the parent's benefit, at the child's request, the latter is chargeable, as any one else would be.* And it is held, further, that where one of several children renders support at the request of the others, they will be liable on an implied promise to contribute.^ So much, then, for the duties of children. The rights of children with reference to their parents may be considered more at length. We have already had occasion to observe, that the child may to a certain extent bind the parent as agent, not only for necessaries, but in some other transactions, where the child acts within the scope of author- ity properly conferred. But general transactions require proof of actual authority ; and a son has * ordinarily no * 367 more right, as such, to lend his father's goods than a 1 No one can read " King Lear " without recognizing the sublimity of an un- questioning faith in this moral duty. Kent (2 Com. 207) quotes the speech of Euryalus in the ^neid ; but the instance'of plus yEneas himself is still stronger, perhaps tlie strongest, to be found in the classics ; devotion to his aged father rendering him more illustrious in song than his heroic achievements, and, largely atoning, as some would say, for the sin of conjugal unfaithfulness. - Rex V. Munden, 1 Stra. 190 ; Edwards v. Davis, 16 Johns. 281 ; Dawson v. Dawson, 12 Iowa, 512. See Johnson v. Ballard, 11 Rich. 178. 3 Mills V. Wyman, 3 Pick. 207 ; Cook v. Bradley, 7 Conn. 57. It is otherwise by the Civil Code of Louisiana, art. 245. * Lebanon v. Griffin, 45 N. H. 558 ; Gordon v. Dix, 106 Mass. 305. Such a claim might now be enforced, in a suitable case, against the separate estate of a married daughter, on the usual principles applicable to her contracts. * Stone V. Stone, 32 Conn. 142. And see Succession of Olivier, 18 La. Ann. 594 ; Marsh v. Blackman, 50 Barb. 329. [393] * 367 PARENT AND CHILD. stranger.^ And proof that in one instance the use by a son of his father's name upon negotiable paper discounted at a bank was known and acquiesced in by the father, is not proof that the son was authorized to sign subsequent notes in the same manner.^ The principles of agency are here applied. A father may emancipate his child and thus give him a right to his own earnings. What then is emancipation, as used with reference to the child ? Plainly, the term emancipation is borrowed from the Roman law, and may be referred to the old formality of enfranchisement by the father. This in ancient times was done by an imaginary sale, but Justinian substituted the simpler proceeding of manumission before a magistrate.^ In Louisiana, the emancipation of minors is ex- pressly recognized and regulated by law.* At the English law, the term " emancipation " is generally used with reference to matters of parochial settlement and the support of paupers.^ But in American cases it often has a significance more nearly approaching that of the civil law ; though we are apt to use the word without much regard to precision. We find in the English books little said as to the emancipa- tion of minor children by their fathers. In fact, the English municipal system is so different from ours, that the paternal authority during the period of minority, except as to custody, gives rise to little controversy. But there is a case where an infant was held not to have been emancipated by his enlist- ment.^ And in this and some other instances the principle of emancipation was somewhat discussed ; and the doctrine has been maintained by Lord. Kenyon and others, that during the minority of the child he will remain, under almost * 368 an}'' circumstances, * unemancipated ; that in fact there can be no emancipation of an infant unless he marries, and so becomes himself the head of a family, or contracts 1 Johnson v. Stone, 40 N. H. 197 ; supra, pp. 827-331. But see Bennett v. Gillett, 3 Min. 423. 2 Greenfield Bank v. Crafts, 2 Allen, 269. ' Burrill Law Diet. " Emancipation ; " Bouvier, ib. ; Inst. 1, 12. ♦ Code, art. 367 et seq. * See 7 Q. B. 574, n. 6 Rex V. Rotherfleld Grays, 1 B. & C. 347. [394 J DUTIES AND EIGHTS OF CHILDREN. * 368 some other relation so as to wholly and permanently exclude the parental control.^ Emancipation is not so strictly construed in this country. The American doctrine, as frequently stated, is that a father may " emancipate " his child for the whole remaining period of minority, or for a shorter term ; that this emancipation may be by an instrument in writing, by verbal agreement or license, or by implication from his conduct ; and that emanci- pation is valid against creditors, and to some extent against the father.2 Let us see then, firsts how emancipation may in this country be legally brought about; secondly^ what is its legal effect. And first, emancipation may be either by instrument in writing or by parol agreement, or it may be inferred from the conduct of the parent. As to instruments in writing, usually known as indentures, the statutes of the different States are quite explicit ; and the same general doctrines apply to chil- dren who are bound out as to apprentices generally.^ But such deeds, so far as they derogate from the child's personal independence and welfare, are not greatly favored ; they are usually construed with great strictness as between the minor and his parent, guardian, or master; and the policy of Amer- ican law is to require the consent of the child himself to the instrument, where he has passed the period of nurture.* Next as to emancipation by parol agreement or license of the parent. In a well-considered Massachusetts case, it is decided * that the emancipation of a minor child * 369 by parol agreement and without consideration is revo- cable, until acted upon.^ Yet there can be little doubt at the 1 Rex V. Roach, 6 T. R. 247 ; Rex v. Wilmington, 5 B. & Ad. 525. 2 Abbott V. Converse, 4 Allen, 530, per Chapman, J. ; 2 Kent Com. 194, n. ; Whiting V. Earle, 3 Pick. 201 ; Burlingame v. Burlingame, 7 Cow. 92; Vamey V. Young, 11 Vt. 258 ; Rush v. Vought, 55 Penn. St. 437. 3 4 Com. Dig. 579 ; State v. Taylor, 2 Penning. 467 ; Bolton v. Miller, 6 Ind. 262. See " Master and Servant," infra ; Nickerson v. Easton, 12 Pick. 110. < The minor child of pauper parents is not emancipated so as to gain a .settle- ment by the indenture of the selectmen. Frankfort v. New Vineyard, 48 Me. 665. 5 Abbott V. Converse, 4 Allen, 530. See Morris v. Low, 4 Stew. & Port. 123. But see Chase v. Smith, 5 Vt. 556. [ 395] ♦369 PARENT AND CHILD. present day that a father can verbally sell or give his minor son his time ; and that after payment or performance the son is entitled to his earnings.^ A special contract with a third person, authorizing him to employ and pay the child himself, will bind the parent, and payment to the child will be a de- fence against any action brought by his father against the employer.^ Parol agreements are, however, within the stat- ute of frauds.2 Emancipation, strictly so called, is not to be presumed ; it must be proved. Where it appears that the father, by parol, places his daughter in a certain family, that by the terms of the agreement the employer may turn her away when dissat- isfied, that the father may rescind the contract at pleasure and reclaim his daughter ; these, and similar circumstances, may be sufficient to entitle the child to her own wages for the time being, but they cannot constitute emancipation as against the father.^ We are to distinguish, in fact, between a license for the child to go out and work temporarily, and the more formal renunciation of parental rights. Thus, if the father agrees to pay his son so much for every day he would labor for another, but without intending to give him his time, and merely as an incentive to industry, this is not to be construed into a contract of emancipation, but rather as a mere gratuity to encourage the son in the formation of industrious and useful habits.^ But other circumstances may raise a special contract on the minor's behalf, or indeed be held to emancipate him * 370 altogether. * It is a well-settled rule in this country that if the parent absconds, turns his child out of doors, or leaves him to shift for himself, the son is entitled to his own wages ; and our courts are very liberal in allowing chil- dren to avail themselves of any breach of parental obligation 1 Shute V. Dorr, 5 Wend. 204; Snediker v. Everingham, 3 Dutch. 143; Gale V. Parrott, 1 N. H. 28 ; United States v. Metz, 2 Watts, 406 ; Corey v. Corey, 19 Pick. 29. 2 Shute V. Dorr, 5 Wend. 204. 3 Sumner v. Sebec, 3 Me. 223. See Clark v. Fitch, 2 Wend. 459 ; Clinton v. York, 26 Me. 167. * Arnold v. Norton, 25 Conn. 92. [ 396 ] DUTIES AND RIGHTS OF CHILDREN. * 370 SO as to earn an honest livelihood by their own toil.^ The presumption raised in such cases may be termed a presump- tion of necessity. So where the husband abandons his child to the care of his mother, his subsequent claims for the earn- ings of either are to be regarded with very little favor.^ Even slighter circumstances, which impute no misconduct to the father, but evince a consent for his son to leave the pa- rental roof and go into the world to seek his own fortune, are often construed into emancipation.^ But the desertion of a minor from his father's home, with vagrancy and crime, does not of itself constitute emancipation.* And there may be complete .emancipation, although the minor continue to reside with his father.^ The marriage of an infant, with his parents' consent, re- moves him from parental control, and, we may presume, gives him a right as against the father, to apply all his earnings to the support of his family ; but whether all the consequences of legal emancipation must necessarily follow is doubtful.^ Marriage, without the consent of the parent, ought to confer the same right upon an infant, inasmuch as the claims of wife and child in either case are paramount, and the consequences of all marriages are much the same ; but in Maine it has been decided * otherwise, and that the disobedient * 371 infant is punishable by being compelled to pay his father his earnings ; though what is to become of the wife meantime does not clearly appear.'' A minor daughter is emancipated by her marriage with the father's consent ; and 1 Clinton v. York, 26 Me. 167 ; Cloud v. Hamilton, 11 Humph. 104; Night- ingale V. Withington, 15 Mass. 275; Stansbury v. Bertron, 7 W. & S. 3G2; Ever- ett r. Slierfey, 1 Iowa, 366; Tlie Etna, Ware, 462; Gary v. James, 4 Desaus. 185; Conovar t>. Cooper, 3 Barb. 115; Jeiiison v. Graves, 2 Blackf. 440; Lyon V. Boiling, 14 Ala. 763 ; Ream v. Watkins, 27 Mis. 516. 2 Wodell V. Coggeshall, 2 Met. 89. See Dennysville v. Trescott, 30 Me. 470. 3 Campbell v. Campbell, 3 Stockt. 268 ; Johnson v. Gibson, 4 E. D. Smith, 231 ; Dicks v. Grissom, 1 Freem. Ch. 428 ; Dodge v. Favor, 15 Gray, 82 ; Boobier v. Boobier, 30 Me. 406. But see Stiles v. Granville, 6 Cush. 458. * Bangor v. Readfield, 82 Me. 66. « M'Closkey v. Cyphert, 27 Penn. St. 220. Taunton i'. Plymouth, 15 Mass. 203 ; Dicks v. Grissom, 1 Freem. Ch. 423. ■» White V. Henry, 24 Me. 531. See Burr i'. Wilson, 18 Tex. 367. [397] * 371 PARENT AND CHILD. here, at least, it is ruled that consent may be inferred from circumstances.^ Secondly. As to the effect of emancipation. The conse- quence is on the one hand to give the child the right to his own wages, the disposal of his own time, and, in a great measure, the control of his own person ; on the other hand to relieve the parent of all legal obligation to support.^ Moreover, the emancipated child's earnings go to his admin- istrator upon his decease, to be distributed according to law.^ A father may give to his son a part as well as the whole period of his minority, in Avhich case the rights of the latter are limited accordingly.* If the father receives his son's earnings after giving the son his time, it will be a good con- sideration for any promise from the father.^ And he cannot sue for the services of such son performed within the period embraced by the agreement, although he has given notice to the party employing the son not to pay his wages to him.^ Nor can the father's creditors attach such earnings or prop- erty which was purchased therewith for the infant's benefit." But the child sues in such case for his own wages.^ And if he is actually emancipated by his father, and an express promise is made to pay him for his labor, with the consent of his father, no other notice of his emancipation is necessary to charge the defendant and enable the minor to sue.^ In brief, the minor who is released from his father's service stands, as to his contracts for labor either with strangers or 1 Bucksport V. Rockland, 56 Me. 22. 2 Nightingale v. "Withington, 15 Mass. 272 ; Corey v. Corey, 19 Pick. 29 ; Varney v. Young, 11 Vt. 258 ; Johnson v. Gibson, 4 E. D. Smith, 231. 3 Smith V. Knowlton, 11 N. H. 191. * Tillotson V. M'Crillis, 11 Vt. 477. And see Winn v. Sprague, 35 Vt. 243 ; supra, pp. 345-349. * Jenney v. Alden, 12 Mass. 375. 6 Morse v. Welton, 6 Conn. 647 ; Wodell v. Coggeshall, 2 Met. 89 ; Bray v. Wheeler, 29 Vt. 514. 1 Chase v. Elkins, 2 Vt. 290 ; Weeks v. Leighton, 5 N. H. 343 ; M'CIoskey v. Cyphert, 27 Penn. St. 220 ; Bobo c Bryson, 21 Ark. 387 ; Lord v. Poor, 23 Me. 569 ; Lyon v. Boiling, 14 Ala. 763 ; Jolinson v. Silsbee, 49 N. H. 543. 8 Ream v. Watkins, 27 Mis. 516. 9 Wood V. Corcoran, 1 Allen, 405. The earnings of an emancipated child cannot be attached by trustee process for the father's debts. Manchester v. Smith, 12 Pick. 113. And see Bray v. Wheeler, 29 Vt. 614. [ 398 ] DUTIES AND RIGHTS OF CHILDREN. * 371 with him, upon the same footing as if he had arrived at full age ; and, such being the case, the father may contract to employ and pay the child for his services, and be bound in consequence like any stranger to fulfil his agreement.^ * A child, on arriving at full age, becomes emanci- * 372 pated.2 But, whether son or daughter, the child, by continuing with the jmrent and living at the same home, may still be legally in the service of the parent. On this point there is no dispute ; but in settling the presumptions of law there is apparently some conflict of authorities. Thus, where the parent sues for loss of services because of the seduction of a grown-up daughter, a strong disposition is frequently manifested to rule against complete emancipation so as to give damages. Where the conflict is between parent and child, over work done for a stranger, the tendency is in favor of complete emancipation, and to allow the child, attained to full age, the right to control his own wages ; this being for his benefit. If a child, after arriving at the age of twenty-one years, then, continues to live, labor, and render service in the father's family, with his knowledge and consent, but without any agreement or understanding as to compensation, the law raises no presumption of a promise to enable the child to maintain an action against the father to recover compensa- tion.3 The presumption here is, that the parties do not con- template a payment of wages for services. For where the relation of 'parent and child exists, the law will not readily assume that of debtor and creditor likewise. But this pre- sumption may be overthrown, and the reverse established, by proof of an express or implied contract ; an implied contract being proven by facts and circumstances which show that 1 Steel V. Steel, 12 Penn. St. 64 ; Hall v. Hall, 44 N. H. 293. - 2 Kent Com. 206 ; Poultney v. Glover, 23 Vt. 328; Hardwick v. Paulet, 36 Vt. 320 ; supra, p. 346. 3 Dye V. Kerr, 15 Barb. 444 ; Lipe v. Eisenlerd, 82 N. Y. 229 ; Mosteller's Appeal, 30 Penn. St. 473 ; Ridgway v. English, 2 N. J. 409 ; Andover v. Merri- mack County, 37 N. H. 437 ; Williams v. Barnes, 3 Dev. 348 ; Prickett v. Prickett, 5 C. E. Green, 478; Perry v. Perry, 2 Duv. (Ky.) 312; Hey wood i;. Brooks, 47 N. H. 231. [ 399] * 372 PARENT AND CHILD. both parties, at the thne the services were performed, con- templated or intended pecuniary recomj)ense.^ The dechira- tions of parents in matters of this sort, if somewhat vague, are not apt to be construed in the child's favor. And, on the other hand, the presumption is equally against regarding the services of a father who lives with his son and does work for him, as rendered for compensation ; although here, too, the re- verse might be established by evidence of a contract.^ * 373 * Circumstances which show an unusual burden as- sumed by the son, or special advantages reaped by the father, are sometimes favorably construed in the child's favor. Thus, it is held that where a grown-up son purchases his father's farm and continues to support the father and an adult idiot brother upon it, not only may the father's board be re- covered against his estate, on due proof, but also that of the heljDless brother ; for the moral obligation of a father to sup- port an adult idiot son is greater than that of a brother, where the parties are equally able.^ So where the adult son assumes entire control and management of the business, works the farm, and adds largely to the family profits by his extraor- dinary skill.* Such cases are by no means uncommon among the enterprising settlers of our Western country, who culti- vate the soil and live in little colonies ; and American courts cannot be insensible to the merits of young persons who adorn the filial relation. As to use and occupation of real estate, where the occupant is the son of the owner, it is held that while payment of rent may be presumed, slight evidence is sufficient to show the contrary .° But the rule in some of the older States is rather strict. As in Vermont, where the plaintiff was brought up in her grandfather's family, and had gone abroad after becoming of 1 Miller v. Miller, 16 111. 296; Fitch v. Peckham, 16 Vt. 150; Hart v. Hart, 41 Mis. 441 ; Updike v. Ten Broeck, 3 Vroom, 105; Swartz v. Hazlett, 8 Cal. 118. See Tremont v. Mount Desert, 36 Me. 390 ; Leidig v. Coover's Ex'rs, 47 Penn. St. 634. But see Putnam v. Town, 34 Vt. 429. 2 Harris v. Currier, 44 Vt. 468. 8 House V. House, 6 Ind. 60. * Adams v. Adams, 23 Ind. 50. And see Fislier v. Fisher, 5 Wis. 472. * See Oakes v. Oakes, 16 III. 106 ; Hays v. Seward, 24 Ind. 852. And see Whipple V. Dow, 2 Mass. 416. [ 400 ] DUTIES AND EIGHTS OF CHILDREN. * 373 age to work for herself, but returned at the defendant's re- quest, upon the assurance she should be paid " as well as she was then doing." Notwithstanding repeated assurances of future payment, it was held that no definite expectation was thus shown that either the support or service would create a debt.i And in New Hampshire, the presumiDtion of compensation is not favored, * where children, resid- * 374 ing with parents, carry on in common the farms they respectively own, the proceeds of the whole property being applied to the common benefit of the family, or to the im- provement of the common property.^ A father's gift to his child should also be perfected in order to be upheld after- wards against him. Aijd all family arrangements of the filial kind, in order to stand firmly, should be free from fraud or undue influence, on both sides, and made in good faith.^ To support, however, a general contract between a parent and his adult child, as against strangers, a slight consideration is often held sufficient. And a deed of personal property from parent to child, the parent not being indebted at the time, by which it is agreed that the parent shall keep pos- session during life, is not considered void.'* So it is held that a bond executed by a son to his parent for -$500, Avith interest semi-annually, if demanded^ is a valuable consideration, suf- ficient to sustain^ a conveyance of land as a purchase.^ And even a deed from a parent to a child for the consideration of love and affection, is not absolutely void as against creditors. The want of a valuable consideration may be a badge of fraud, Init if so, it is only j)resumptive, not conclusive evi- dence of it, and may be met and rebutted by opposing evidence.^ This is the American rule ; but as we have seen the statutes of Elizabeth with reference to voluntary settle- ments do not receive a uniform interpretation in our State 1 Davis V. Goodenow, 27 Vt. 717. And see Hall v. Hall, 44 N. H. 293. But see Steel v. Steel, 12 Penn. St. 6G ; Kurtz v. Hibner, 55 111. 514. ■-' Scavey v. Seavey, 37 N. H. 125. 3 Taylor v. Staples, 8 R. I. 170 ; Van Donge v. Van Donge, 23 Mich. 321. 4 Bohn V. Headley, 7 Har. & J. 257 ; Shepherd ;;. Bevin, 9 Gill, 32. 5 Jackson v. Peek, 4 Wend. 300. *> llinde's Lessee v. Longworth, 11 Wheat. 213 ; Seward v. Jackson, 8 Cow. 406 ; Haines v. Haines, 6 Md. 435. 26 [ 401 ] * 374 PARENT AND CHILD. courts. There are doubtless circumstances under which a father's voluntary settlement, whether upon minor or adult children, would be set aside as a fraud upon subsequent, and still more upon existing creditors.^ Where a son purchases and stocks a farm as a home for an indigent father, who resides and labors thereon, the products are not subject to attachment as the son's property.^ On the other hand, where a parent permits the child to receive and invest his earnings, the benefit of the investment belongs to the child.^ And in Pennsylvania, a minor child who improves and settles a tract of land with the father's permission, may acquire a title by making improvements as effectually as if he were of age.* * 375 * The English cases are few as to transactions strictly between parent and child ; and these turn chiefly upon trusts and family settlements. There are recent cases where the transactions of children with fortunes have been set aside in equity, for undue influence exerted over them by their parents. Thus a mortgage and subsequent sale by a son just arrived at full age, effected under the father's influence, and to his own injury, has been annulled.^ So with a gift from child to parent, though not unless a suit to set the gift aside be instituted in due time.^ Tlie principle of equity is, that if there be a pecuniary transaction between parent and child, just after the child attains the age of twenty-one years, and prior to what may be called a complete emancipation, without any benefit moving to the child, the presumption is, that an undue influence has been exercised to procure that liability on the part of the child ; and that it is the business and the duty of the party who endeavors to maintain such a transac- tion, to show that such presumption is adequately rebutted ; 1 See supra, pp. 276-281. And see Carter v. Grimshaw, 49 N. H. 100; Wil- son V. Kohlheim, 46 Miss. 346 ; Kaye v. Crawford, 22 Wis. 320 ; Moneil v. Scherrick, 54 111. 269. 2 Brown v. Scott, 7 Vt. 67. ' Campbell v. Campbell, 3 Stockt. 268. * Galbraith v. Black, 4 S. & R. 207. See Jenison v. Graves, 2 Blackf. 441. But see Bell v. Hallenback, Wright, 761 ; Fonda v. Van Home, 15 Wend. 631 ; Brown v. M'Donald, 1 Hill Ch. 297. 6 Savery v. King, 35 E. L. & Eq. 100. And see Baker v. Bradley, ib. 449. 6 Wright V. Vanderplank, 39 E. L. & Eq. 147 ; Turner v. Collins, L. R. 7 Ch. 829. [402] DUTIES AND RIGHTS OF CHILDREN. * 375 but that the presumption may always be removed.^ On the other hand, in transactions between members of the same family, even though that relation subsists between them, from whence the court will infer the moral certainty of the exist- ence of considerable influence, and the probability of its hav- ing been exercised, yet if the transaction be one that tends to the peace or security of the family, to the avoiding of family disputes and litigation, or to the preservation of the family property, the principles by which such transactions must be tried are not those applicable to dealings between strangers, but such as on the most comprehensive experience have been found to be most for the interest of families.^ An imbecile father living with his grown children may have a notice to quit served by delivery to one of them in such a manner as to entitle the landlord to maintain ejectment against the father to whom the notice had been addressed.-^ * If the father, during his lifetime, makes an advance- * 376 ment to any of his children, towards their distributive share in his estate, the rule is to reckon this in making the distribution.* In England, it would appear that acts of the father have often been so construed, under the statute of distributions, with less reference to intention of the parties than the requirements of equal justice. Thus annuities are reckoned an advancement ; contingent provisions ; large pre- miums for a trade or profession ; and loans of considerable importance to a son.^ But small and mconsiderable sums for current expenses, ornaments, and the education of children are not so reckoned.^ Nor is the payment to the daughter's husband of .£1,000, jocularly stated by the father to be in ^ Archer v. Hudson, 7 Beav. 551, per Lord Langdale. See Houghton v. Houghton, 11 E. L. & Eq. 134; s. c. 15 Beav. 278, wliere tliis suhject is fully discussed. See also American case of Bergen v. Udall, 31 Barb. 'J. '^ Master of Rolls, in Houghton v. Houghton, ib. ' Tanhani i\ Nicholson, L. R. 5 Ho. L. 661. * 2 Redf. Wills, 908 et seq. ; Edwards v. Freeman, 2 P. Wms. 435. 5 Smith V. Smith, 3 Gif. 2G3 ; 2 Wms. Ex'rs, 1385 ; Edward v. Freeman, 2 P Wras. 435 ; 2 Redf. Wills, 908, 909 ; Boyd r. Boyd, L. R. 4 Eq. 305. 6 2 Wms. Ex'rs, 1391. And see Miller's Appeal, 40 Penn. St. 67. [ 403 ] * 376 PARENT AND CHILD. exchange for his snuffbox, to be considered an advancement to the daughter.^ In a modern English case a father lent the sum of XI 0,000 to his son, to assist him in forming a partnership in the busi- ness of a sugar-reiiner, and took his promissory note for the repayment of that sum on demand. It appeared that the son engaged in business at the urgent desire of his father, that finding it was a losing concern he became desirous of retiring, but remained at the urgent request of his father ; and con- tinued the business with reluctance, sustaining heavy losses. The father on his death-bed caused the promissory note to be burned, and died intestate. It was held that although the circumstances under which the note had been destroyed amounted to an equitable, release of the debt ; yet, that the sum which remained due on it must be considered an ad- vancement to the son.2 But the rule in this country does not appear to be * 377 so strict ; and in some States the statutes of * distribu- tions, unlike those of England, permit nothing to be reckoned as an advancement to a child by the father, unless proved to have been so intended and chargeable on the child's share by certain evidence prescribed.^ And it is laid down that M hether a provision of the deceased in his lifetime be a gift or an advancement is a question of intention ; but that if it was originally intended by both as a gift, it cannot subse- quently be treated, by the father as an advancement, at least without the son's knowledge or consent.* Yet it is also ruled that if a son during his father's life receipts for and actually receives his "full proportion" during his father's life, he can claim nothing more from the estate after his father's death.^ Advancements do not bear interest.^ 1 McClure v. Evans, 29 Beav. 422. And see Stock v. McAvoy, L. R. 15 Eq. 55. ■i Gilbert r. "Wetherell, 2 Sim. & Stu. 254, per Sir John Leach, M. R. But see Auster v. Powell, 31 Beav. 583, and n. 3 Osgood V. Breed's Heirs, 17 Mass. 356 ; 2 Redf. Wills, 908, 909. ■» Lawson's Appeal, 23 Penn. St. 85; Sherwood v. Smith, 23 Conn. 516. See Black V. Whitall, 1 Stockt. 572. 5 Cusliing V. Cushing, 7 Bush, 259. 6 Osgood V. Breed's Heirs, 17 Mass. 356; Nelson v. "Wyan, 21 Mis. 347. [404] DUTIES AND RIGHTS OF CHILDREN. *377 "Where the child of a father dying intestate has received an advancement, in real or personal estate, and wishes to come into the general partition or distribution of the estate, he may bring his advancement into hotchpot with the whole estate of the intestate, real and personal ; and shall there- upon be entitled to his just proportion of the estate. This is the English rule, and it prevails likewise in many of the United States.^ In such case the value of the property at the time of advancement governs in the distril)ution,2 The principle of this rule is equality of distribution of the ances- tor's personal estate among his children and their descend- ants. The sale of expectant estates by heirs is not to be encour- aged ; one reason being that it opens the door to taking undue advantage of an heir in distressed and necessitous circum- stances ; the other that public policy should prevent an heir from shaldng *off his father's aiithorit}^ and * 378 feeding his extravagance by disposing of the family estate.^ The principle was formerly laid down with much emphasis in Massachusetts.* But the present rule of chan- cery is to support such sales to others, if made bona fide, and for valuable consideration ; and in case of an heir apparent, if the instrument be made with the knowledge and consent of the father.^ Whether, however, the son can release to the father himself, so as to operate further than as a receipt for property advanced to him, i-s more doubtful.*^ As to proof of an advancement, see Bulkley' v. Noble, 2 Pick. 337 ; and see Hartwell v. Rice, 1 Gray, 587 ; Miller's Appeal, 40 Penn. St. 57 ; Smith v. Smith, 59 Me. 214 ; Vanzant v. Davies, G Ohio n. s. 52 ; 2 Story Eq. Juris. § 1202 ; Brown v. Burk, 22 Geo. 574 ; Cleaver v. Kirk, 3 Met. (Ky.) 270 ; Hodg- son V. Macy, 8 Ind. 121; Vaden v. Hance, 1 Head, 300; Fulton i'. Smith, 27 Geo. 413 ; Montgomery v. Chaney, 13 La. Ann. 207. 1 2 Bl. Com. 516 ; 2 Wms. Ex'rs, 1386 ; 2 Kent Com. 421 ; Grattan v. Grat- tan, 18 111. 167 ; Jackson v. Jackson, 28 Miss. 674. 2 See Jenkins v. Mitchell, 4 Jones Eq. 207. For the New York rule, see Terry v. Dayton, 31 Barb. 519. 8 Per Lord Thurlow, 1 Bro. C. C. 10; Co. Litt. 265 a; Sugd. Vendors, 314, and cases cited ; 1 Story Eq. Juris. §§ 336-339. * But see Trull v. Eastman, 3 Met. 121 ; contra, Boynton v. Hubbard, 7 Mass. 112. See Varick v. Edwards, 1 lloff. Ch. 383; 2 Kent Com. 475, and cases cited. * Curtis v. Curtis, 40 Me. 24. 6 See Robinson v. Robinson, Brayt. 59; Walker v. Walker. 67 Penn. St. 186. [ 405 ] ♦378 PARENT AND CHILD. Where a legacy is given by a parent to his child, or by one m loco j^at'entis, by way of maintenance, the child as legatee is privileged in being allowed interest thereon from the testator's death ; this so as to secure the child's prompt and full support. And the right to interest is held to be all the same notwithstanding the child has no guardian.^ The child's right of inheritance from his parent, it may be added, is strongly favored both in England and America. But while in the former country the eldest son is so far preferred to the other children that he shall take the whole real estate by descent to himself, the American rule is that all children shall inherit alike, whether sons or daughters. And a father's will is to be construed with favor to his own off- spring ; indeed, some of our local statutes expressly provide that when a testator omits to provide for any children, they shall take the same share of the testator's estate, both real and personal, that would have passed to them if the parent had died intestate, unless they had other provision during the testator's life, or it clearly appears that the omission was in- tentional on his part.2 It is well settled that in the absence of statutes a person is not entitled to the custody and earnings of step-children, nor bound by law to maintain them.^ Yet, if a step-father voluntarily assumes the care and support of a step-child, he stands in loco parentis; and the presumption then is, that they deal with each other as parent and child, and not as master and servant ; in which case the ordinary rules of parent and child will be held to apply ; and consequently neither compensation for board is presumed on the one hand, nor for services on the other.* So may this quasi relation 1 2 Redf. Wills, 267 ; Kent v. Dunham, 106 Mass. 586 ; Fowler v. Colt, 22 N. J. Eq. 44. 2 See Mass. Gen. Stats, c. 92, § 25 ; Schouler Pers. Prop. 730, 748 ; 2 Kent Com. 421 ; 4 ib. 471. 3 Tubb V. Harrison, 4 T. R. 118 ; 2 Kent Com. 192; Freto v. Brown, 4 Mass. 675; Worcester v. Marchant, 14 Pick. 510; supra, p. 321. * Cooper V. Martin, 4 East, 77 ; Williams v. Hutchinson, 3 Comst. 312 ; Sharp r. Cropsey, 11 Barb. 224; Murdock v. Murdock, 7 Cal. 511 ; Gillett v. Camp, 27 Mis. 541 ; Hussee v. Roundtree, Busbee, 110 ; Lantz v. Frey, 14 Penni St. 201 ; Davis V. Goodenow, 27 Vt. 715 ; Brush v. Blanchard, 18 111. 46. [ 406 ] DUTIES AND RIGHTS OF CHILDREN. * 378 exist between the cliild and some other person; such as a grandfather.! But the presumption, as between son-in-law and father-in-law, is that they deal on the mutual footing of debtor and creditor.^ 1 Hudson V. Lutz, 5 Jones, 217 ; Butler v. Slam, 50 Penn. St. 456. 2 Wright V. Donnell, 34 Tex. 291 ; Schoch v. Garrett, 69 Penn. St. 144. [407] * 379 PARENT AND CHILD. *379 * CHAPTER VL ILLEGITIMATE CHILDREN. Illegitimate children, or bastards, stand upon a different footing from legitimate children. We have already seen that bastards may be legitimated in many of the United States, by the subsequent marriage of their parents or otherwise. The rights and disabilities of bastards, as such, and while contin- uing illegitimate, require our present attention. The rights of a bastard are very few at the common law ; children born out of a legal marriage having been from the earliest times stigmatized with shame, and made to suffer through life the reproach which were rightfully visited upon those who brought them into being. The dramatist depicts the bastard as a social Ishmaelite, ever bent upon schemes for the ruin of others, fully determined to prove a villain ; thus fitly indicating the public estimate of such characters centu- ries ago in England. The law-writers, too, pronounce the bastard to be one whose only rights are such as he can ac- quire ; going so far as to demonstrate, by cruelly irresistible logic, that an illegitimate child cannot possibly inherit, be- cause he is the son of nobody ; sometimes called filius nuUius, and sometimes fiUus jjojyuli.^ Coke seemed to concede a favor in admitting that the bastard might gain a surname by repu- tation, though none by inheritance.^ The most important disability of an illegitimate child, at the common law, is that he has no inheritaljle blood ; that he is incapable of becoming heir, either to his putative * 380 father or to * his mother, or to any one else ; that « Fort, de LI. cli. 40 ; 1 Bl. Com. 458. 2 Co. Litt. 3. The very term " bastard," said to be derived from the Saxon words "base start," expresses contempt. See Fraser Parent & Child, 119. [ 408 ] ILLEGITIMATE CHILDREN. * 380 he can have no heirs but those of his own body.^ This was likewise the doctrine of the civil law ; the language of the Institutes as to spurious offspring, 'patrem habere non in- telliguntur, dealing rather more gently with a fact so ex- tremely delicate and painful. ^ At the old canon law a bas- tard was treated as also disqualified from holding dignities in the church ; but this doctrine became exploded long ago. " And really," adds Blackstone, with warmth, as if to atone for a long and fallacious argument against legitimation by a subsequent marriage, " any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree." ^ And so might the commentator of the commentaries stigmatize the efforts of those who have nothing better to urge against human rights, than the importance of preserving the symmetry of the law unimpaired. The civil law, while offering in certain cases a hope of legitimation, made a distinction between spurious offsj)ring born of promiscuous intercourse, and such as were conceived or born during the marriage of one of the natural parents ; presuming that while the former might be rendered legiti- mate, the latter never could become so.* And the rule was more severe with the one class than the other. This princi- ple is to be traced in the provisions of the Louisiana Code ; children whose father is unknown and adulterous or incestu- ous children having no right of inheritance, while other natural or illegitimate children succeed to the estate of their mother in default of lawful children or descendants, and under certain conditions to the estate of the father who has acknowledged them.^ The well-settled American rule, however, differs considerably *from that of both civil and common law. * 381 We have already noticed that legitimation by subse- quent marriage is a principle admitted very generally in the 1 2 Kent Com. 212 ; .1 Bl. Com. 459. 2 Inst. 1, 10, 12; 2 Kent Com. ib. 3 1 Bl. Com. 459. * 1 Dig. 5, 23 ; Eraser Earent & Cliild, 119. 5 See 2 Kent Cora. 213. [409] *381 PARENT AND CHILD. legislation of the different States. So, too, are there various statutes which permit even bastard children to inherit from the father under certain restrictions ; while the generally recognized doctrine is partus sequitur ventrem, and that the illegitimate child and his mother shall mutually inherit from each other. Thus, by recent statutes in Maine, the mother of an illegitimate child can inherit. In Massachusetts, the ille- gitimate is an heir to his mother. In New York, in default of lawful issue of the mother, her illegitimate children may in- herit her real and personal estate. In Pennsylvania, bastards shall bear the name of the mother, and she and they shall inherit from each other. Certain kindred of the bastard's mother, in Georgia and Alabama, had rights of distribution under still earlier statutes. In Tennessee and some other States, a liberal rule is applied with respect to mother and brothers and sisters.^ In Maryland, illegitimates may inherit from the mother and from illegitimate brothers and sisters ; though illegitimates cannot take from the legitimate, neither legitimates from the illegitimate.^ And, forty years ago, Kent instanced twelve States where bastards could inherit from, and transmit to, their mothers, real and personal estate, under some modifications ; while in New York, the mother and her kindred could inherit from her bastard offspring.^ There is scarcely a State in the Union which has not departed widely from the policy of the English common law ; and stat- utes, which happily have required as yet very little judicial interpretation, perpetuate the record of our Hberal and gen- erous public policy towards a class of beings who were once compelled to bear the iniquities of the parent. The doctrine that a natural tie connects the illegitimate child peculiarly with his mother was recognized at the 1 Lewis V. Eutsler, 4 Ohio St. 354 ; Opdyke's Appeal, 49 Penn. St. 373 ; Hawkins v. Jones, 19 Ohio St. 22 ; Riley v. Byrd, 3 Head, 20. 2 Miller v. Stewart, 8 Gill, 128 ; Earle v. Dawes, 3 Md. Ch. 230. 3 See 2 Kent Com. 11th ed. 212, 213, and notes. And as to inheritance from the father, see supra, 310. These statutes of inheritance are not generally to be extended so as to apply to grandchildren and grandparents, in a case of illegit- imacy. See Steckel's Appeal, 64 Penn. St. 493; Berry v. Owens, 5 Bush, 452. [410] ILLEGITIMATE CHILDREX. * 381 civil law ; * for under the ordinance of Justinian, the * 382 bastard might to a certain extent inherit from his mother.^ So at the common law have the obligations of con- sanguinity between the mother and her illegitimate offspring been applied in several instances. But as concerns any ex- clusive privileges on behalf of the mother, this does not seem very clear ; for in a case which was decided in 1786, the rights of the putative father seemed to be placed on much the same footing as in other cases ; and his consent was deemed jjrima facie essential under the marriage act of 26 Geo. I. ; so was his right apparently admitted to take his illegitimate child out of the parish .^ There are, to be sure, occasional dicta to the effect that the putative father has no common-law right to the custody of the child as against the mother, and that certainly within the age of nurture, that is, under the age of seven, the mother has the exclusive right to the custody. The more correct statement, however, is that pauper children, whether legiti- mate or not, are under the English system made inseparable from the mother within the years of nurture ; and that at common law neither the putative father nor the mother of an illegitimate child had any exclusive right of guardianship.^ The common-law cases cited in the mother's favor, are only to the effect that where a bastard child within the period of nurture is in the peaceable possession of tlie mother, and the putative father gets possession of the child by force or fraud, the court will interfere to put matters in the same situation as before.^ Both Lord Kenyon and Lord Ellenborough — the latter as late as 1806 — expressed doubts as to whether the court would take away the custody of an illegitimate child from the father who had fairly obtained possession, and award it to the mother.^ * Nor do the later English cases aid greatly in clear- * 383 1 Code, lib. 6, 57. See 2 Kent Com. 214. 2 King V. Hodnott, 1 T. K. 96, and cases cited passim ; Macpliers. Inf. 67. 3 Macpliers. Inf. 67. 4 Rex V. Soper, 5 T. R. 278 ; Rex v. Hopkins, 7 East, 579 ; Rex v. Moseley, 5 East, 223. * Per Lord Kenyon, Rex v. Moseley, supra (1798) ; per Lord Ellenborough, Rex V. Hopkins, supra. [411] * 383 PARENT AND CHILD. ing up the doubt on this point. Lord Mansfield regarded the law as doubtful in his day, while himself inclining strongly to the opinion that the putative father had no right to his child's custody.^ In 1841, a case came before the Court of Common Pleas, on a writ of habeas corjjus, applied for by the mother, the child being then between eleven and twelve years of age, and in the custody of her putative father. But the child was deemed old enough to exercise her own discretion as to where she would go ; and as she appeared unwilling to go with her mother, the court would not permit the mother to take her by force.^ The chancery courts have in several instances favored the father of an illegitimate child to the exclusion of his mother. Thus, while the practice is not to appoint the putative father guardian of his illegitimate child having no property, unless he makes a settlement upon him ; yet, if he does so, his ap- pointment is favorably regarded. No special regard seems to have been paid to the mother of such children.^ And while the committee of a lunatic might petition for an allowance for his bastard offspring, their mother might not.* But the language of the new poor laws of England (after many changes) is favorable to the mother's special claims ; being to the effect that the mother is in any case bound to maintain her bastard child under sixteen, unless such child meantime marries* or acquires a settlement of its own ; and that such child shall folloAv the settlement of the mother.^ And if being of ability, she neglects to support such child, whereby it becomes chargeable to the parish, she may be punished under the vagrant acts.^ Another section of * 384 the act * of 4 & 5 Will. IV., which provides that the husband shall support step-children of his wife, in- cludes in its terms illegitimate as well as legitimate children, 1 Strangeways v. Robinson, 4 Taunt. 498. And see Pope v. Sale, 7 Bing. 477. 2 In re Lloyd, 3 Man. c& Gr. 547. Comparing all the dicta in the foregoing cases carefully together, it will be seen that they are not decidedly against the putative father's right of custody. » Macphers. Inf. 110. 4 Re Joues, 5 Russ. 151. 5 4 & 5 Will. 4, c. 76, § 71. 6 7 & 8 Vict. c. 101 ; 8 & 9 Vict. c. 10. [412] ILLEGITIMATE CHILDREN. * 384 and so far favors a husband's right of custody ; but that pro- vision covers only a very limited ground.^ The rights of the parents of bastards are regulated to a great extent in the United States by statute ; and our policy is in general more favorable than that of England, as to the mother's rights. An illegitimate child follows the settlement of his mother in New York and some other States.^ But in Connecticut the rule is that a bastard is settled where born, like any other child, and that his settlement follows that of the putative father.^ In New York again, ever zealous in guarding the interests of women and children, it is broadly ruled that, as against the mother of a bastard child, the puta- tive father has no legal right of custody ; that the mother, as its natural guardian, is bound to maintain it ; and that she is entitled to control it.* Stratagem and force on the part of the putative father always furnish good grounds for restora- tion of the child to the mother.^ And the Roman, Spanish, and French laws all deny the power of the putative father over the illegitimate child ; this principle being likewise transferred to Louisiana and other States, once under the civil law ; though, in Texas at least, the putative father is allowed the guardianship of such child after the mother's death.^ In some States, we may add, the suj^erior rights of the mother in binding out her illegitimate child are favorably regarded.'^ The common-law rule, in absence of statutes, is that the putative father is under no* legal liability to support his illegitimate offspring. But upon the strength of the natural or moral obligation arising out of the relation of the putative father to his child, an action at common law lies for its 1 4 & 5 Will. 4, c. 76, § 51. See comment of Maule, J., In re Lloyd, 3 Man. &, Gr. 547. 2 See 2 Kent Com. 214 ; Canajoliarrie v. Johnson, 17 Johns. 41 ; Petersham V. Dana, 12 Mass. 429 ; Lower Augusta v. Salinsgrove, 64 Penn. St. 166. 3 Betl)lem v. Roxbury, 20 Conn. 298. * People t'. Kling, 6 Barb. 366 ; Robalina v. Armstrong, 15 Barb. 247. * Commonwealth v. Fee, 6 S. & R. 255. 6 Acosta V. Robin, 19 Martin, 387 ; Barela v. Roberts, 34 Tex. 554. ^ Alfred v. McKay, 36 Geo. 440; McGunigal v. Mung, 5 Penn. St. 269. [413] *384 PARENT AND CHILD. * 385 maintenance * and support upon an express promise ; and where one admits himself to be the father and adopts the child, while such adoption continues, a promise may be implied in favor of the party providing for it. He may renounce the adoption, and terminate this implied as- sumpsit, in which case there is no remedy to be pursued, unless under a statute. The father can only be charged then upon his contract.^ But upon his promise to third persons, he may be held liable ; and a promise by the putative father to pay the step-father for the child's support, past and future, if he will continue to support it, is binding.^ But the statutes which relate to the maintenance of bas- tard children, supply the want of adequate common-law remedies ; the main element in such legislation being public indemnity against the support of such persons. Under the old poor laws of England, the mother had a compulsory remedy against the putative father ; but this was taken away by the act of 4 & 5 WUl. IV. c. 76. By the statute of 7 & 8 Vict. c. 101, however, the mother is afforded relief once more, and the father may be summoned before the petty sessions and ordered to pay a weekly sum for the child's maintenance, and the costs of obtaining the order ; mainte- nance to last until the child is thirteen years of age. The money is to be paid to the mother, and may be recovered by distress and imprisonment.^ The provisions of law in force in most of the United States are borrowed from the older English statutes, and our courts are very generally invested with plenary jurisdiction over such matters ; and at the instance of the mother the father may be coerced by arrest and imprisonment, if need be, into giving bonds and * 386 furnishing * maintenance for his illegitimate child ; 1 Hesketh v. Gowing, 5 Esp. 131 ; Nichols v. Allen, 3 Car. & P. 36 ; Eurillio V. Crowther, 7 Dowl. & Ry. 612 ; Cameron v. Baker, 1 Car. & P. 258 ; Moncrief V. Ely, 19 Wend. 405. 2 Wiggins V. Keizer, 6 Ind. 252. 3 And see 2 & 8 Vict. c. 85 ; 8 & 9 Vict. c. 101. The order may be ob- tained by a married woman, mother of the bastard. Regina v. Collingwood, 12 Q. B. 681. And see Follit v. Koetzow, 24 Jur. 051. In case of death or inca- pacity of the mother, so that the child becomes chargeable to the parish, the order may be enforced by the guardians or overseers of the parish. [414] ILLEGITIMATE CHILDREN. * 386 thus relieving the mother to some extent of the burden to which his criminal misconduct has chiefly contributed, and indemnifying the public against the support of the pen- niless and unfortunate.^ Past seduction has been held sufficient to support a deed. There is an old English case, where equity compelled the specific performance of a deed-poll, made by a man who had seduced a woman and had a child by her ; the writing prom- ising to pay £2,000 after his death for the purchase of an annuity for the mother and her child for their lives. Both the man and the child had died before the suit was brought.^ In Pennsylvania, the same principle is pushed even farther ; for it is ruled that seduction of a female and begetting a bas- tard is sufficient consideration to support a man's promise to give bonds for a sum of money .^ But there must be noth- ing oppressive or unfair in such transactions, and if the promise be solely in consideration of stopping a criminal prosecution, it is void.* Nor ought agreements as to the wages of sin to be favored.^ Whatever may be the mother's legal responsibility for the maintenance of her bastard child while she lives, it appears that an action cannot be maintained against the adminis- trator of her estate for the child's maintenance subsequently to her death.^ A person standing m loco parentis may svieper quod servitium for the abduction of his daughter's illegitimate child.' But a parent is not bound to support the illegitimate offspring of » 2 Kent Com. 215, and cases cited ; State v. Beatty, 66 N. C. 648; Musser v. Stewart, 21 Oliio St. 363 ; Marlett v. Wilson, 80 Ind. 240 ; Barber v. State, 24 Md. 383 ; Wiieelwright i'. Greer, 10 Alien, 389. In some States certain persons are authorized to make complaint against the father for maintenance of the bas- tard, where the mother refuses or neglects' to do so. lb. 2 Marchioness of Annandale v. Harris, 2 P. Wms. 433. And see Turner v. Vaughan, 2 Wils. 339. 3 Slienk V. Mingle, 13 S. & R. 29. And see Phillipi v. Commonwealth, 18 Penn. St. 116; Knye v. Moore, 1 Sim. & Stu. IGl. * lb. But see Merritt i'. Fleming, 42 Ala. 234. * See Binnington v. Wallis, 4 B. & Aid. 650. 6 Ruttinger v. Temple, 4 B. & S. 491. And see supra, pp. 888, 884. ^ Moritz V. Garnhart, 7 Watts, 802. [ 415 ] * 386 PARENT AND CHILD. his children.^ Relatives more distant than parents do not, on the whole, seem to have much consideration in matters of this sort ; and it is even possible that the assumption of a family name by an illegitimate member is a grievance for which the offended relatives have no redress.^ Bequests to illegitimate children, since they are not con- sidered as relatives, are not favored in English law. There have been, it is true, certain dicta to the contrary ; but * 387 Lord Eldon * was of the opinion that there must be something to show that the testator put himself in loco parentis; and it has since been decided that an illegitimate child is not merely, as such, within the rule, for he is "a stranger to the testator." ^ On the ground of uncertainty in the person, a bequest to an unborn legitimate child was long considered objectionable ; but Lord Eldon and others main- tained that legacies given to the unborn illegitimate child of a particular woman then pregnant would be good, because the uncertainty of description could here be obviated.* But it is now well settled in England that a devise or bequest in favor of other future illegitimate children is void.^ Illegitimate children may undoubtedly take by purchase as persons designated, if sufficiently described.^ The question in cases of this sort is really one of intention. Prima facie ^ the term " children " in a will, however, is intended to mean legiti- mate children ; and if there are legitimate children, or if it be possible that there should be legitimate children of the person named, the English rule is that no illegitimate child 1 Hillsborough v. Deering, 4 N. H. 86. 2 Du Boulay v. Du Boulay, L. R.. 2 P. C. 430. See Vane v. Vane, L. R. 8 Ch. 383. 3 Lowndes v. Lowndes, 15 Ves. 304; Perry v. Whitehead, 6 Ves. 547; contra, per Lord Alvanley, Cricket v. Dolby, 3 Ves. 30 ; Macpiiers. Inf. 238. 4 Macpiiers. Inf. 570, and cases cited ; Gordon v. Gordon, 1 Mer. 141 ; Daw- son V. Dawson, 6 Madd. 292. 5 Beachcroft v. Beachcroft, 1 Madd. 430; Knye v. Moore, 1 Sim. & Stu. 61; Wilkinson r. Wilkinson, 1 You. & Coll. 657; Medworth v. Pope, 27 Beav. 71. « Blodwell V. Edwards, Cro. Eliz. 509 ; Co. Litt. 36 ; Peachey Mar. Settl. 885, H.; Clifton v. Goodbun, L. R. 6 Eq. 278; Crook v. Hill, L. R. 6 Ch. 311. [416] ILLEGITIMATE CHILDREN. * 387 can take under the description of children.^ Yet, if they have acquired the reputation of being the children of a particular person, they are capable of taking under the description of " children," or " daughters." ^ In 3Iedworth v. Pope, the rule was concisely stated to be, that an illegitimate child in esse or en ventre sa mere may, if properly de- scribed, take the benefit of a devise or bequest, and * the court will not inquire as to his parentage or ori- * 388 gin ;. but that in respect of future illegitimate chil- dren, the law will not let them take under any description whatever. '' The reason why the English law so holds is, that it considers such a provision for future illegitimate chil- dren as contra bonos mores." ^ In this country, the tendency seems to be so far favorable to illegitimate children as to regard wills made in their favor with the same, or nearly the same, consideration as all others. And our courts regard bastards as having strong claims to equitable protection, notwithstanding the criminal indulgence of their parents. In several important cases, specific per- formance of voluntar}^ settlements made by the father in their favor, have been decreed.* And a devise, in specific terms, to an unborn natural child of a woman then pregnant, is sustained here as in England.^ But whether our tribunals 1 Gill V. Shelley, 2 Russ. & My. 336 ; Tn re Wells's Estate, L. R. 6 Eq. 599; Paul V. Children, L. R. 12 Eq. 16. - Peaehey Mar. Settl. 885, n., and cases cited; Evans v. Davies, 7 Hare, 501 ; Owen I'. Bryant, 2 De G., M. & G. 697; Hartley v. Tribber, 10 Beav. 510; Leigh V. Byron, 1 Sm. & Gif. 486 ; Tugwell v. Scott, 24 Beav. 141 ; Worts v. Cubitt, 19 Beav. 421. And see Williamson v. Codrington, 1 Ves. Sen. 511. ^ Per M. R., in Medworth v. Pope, 27 Beav. 71. Further important illustra- tions of the equity doctrine may be seen in the recent cases of Lambe v. Eames, L. R. 6 Ch. 597 ; Holt v. Sindrey, L. R. 7 Eq. 170 ; Savage v. Robertson, L. R. 7 Eq. 176. And as to the application of 27 Eliz. c. 4, to marriage settlements for bastards, see Clarke i\ Wright, 6 Hurl. & Nor. 849. As to legacies and devises, see Beachcroft v. Beachcroft, 1 Madd. 430, and cases cited ; Durrant v. Friend, 11 E. L. & Eq. 2 ; Owen v. Bryant, 13 E. L. & Eq. 217 ; 4 Kent Com. 414; Bagley o. Mollard, 1 Russ. & My. 581. * Gardner v. Heyer, 2 Paige, 11 ; Bunn v. Winthrop, 1 Johns. Ch. 338 ; Har- ten V. Gibson, 4 Desaus. 139 ; 2 Kent Com. 210; Shearman v. Angel, Bail. Eq. 351 ; Collins v. Hoxie, 9 Paige, 88. * Knye v. Moore, 5 Harr. & Johns. 10. As to legacies and devises to illegiti- mate children under American laws, see 4 Kent Com. 413, 414, and cases cited ; Hughes V. Knowlton, 37 Conn. 429. 27 [ 417 ] * 388 PARENT AND CHILD. would sanction a bequest to other unborn illegitimate chil- dren, may admit of doubt ; provided such child were never legitimated by subsequent marriage. For, after all, there must be some discrimination made against criminal inter- course. Testamentary guardianship, of which we are to speak in another connection, is of such a nature that a father cannot by his will appoint a guardian for his illegitimate children.^ 1 Sleeman v. Wilson, L. R. 13 Eq. 36. [ 418 ] GUARDIANS IN GENERAL. * 389 *PAKT lY. *389 GUARDIAN AND WARD. CHAPTER I. OF GUARDIANS IN GENERAL ; THE SEVERAL KINDS. The guardian is a person intrusted by law with the interests of another, whose youth, inexperience, mental weakness, and feebleness of will disqualify him from acting for himself in the ordinary affairs of life, and who is hence known as the ward. Guardianship usually applies to minor children ; and in this sense the guardian may be either their natural protector, whose authority is founded upon universal law, or some person duly chosen to act on their behalf. Thus, the father (and sometimes the mother) exercises the right of custody and nurture as the child's natural guardian ; while, if the parents are dead, some one must be selected to sujiply their place. And since the parental control does not extend to the estate of a minor, the appointment of a guardian may be both neces- sary and proper, when property becomes vested in a child under age. Guardianship applies also at the present day to idiots, lunatics, spendthrifts, and the like ; and the guardian of such person derives his authority from statute law and a special appointment. This guardian is sometimes designated as the committee. The law of guardianship is most naturally divided into guardianship of the person, and guardianship of the estate. * Guardianship of the person is a relation * 390 essentially the same as that of parent and child, [419] * 390 GUARDIAN AND WARD. though not without some important differences, as we shall see hereafter. Hence the guardian has been called " a tem- porary parent." ^ Guardianship of the estate bears a closer resemblance to trusteeship ; guardians and trustees being alike bound to manage estates with fidelity and care, under the supervision and direction of the chancery courts. The same person is often guardian of both the person and estate of the ward ; but not necessarily, for these may be kept distinct. So, too, there may be joint guardians, as in other trusts. The law of guardianship, in England, is one of irregular growth. Guardians, until chancery jurisprudence became fully developed, were recognized only for certain limited purposes. Their powers were restricted, and new classes were created from time to time, as the exigency arose. One species of guardianship would fall into disuse and another spring up in its place. Hence it is found difficult to attempt a classification, or reduce the general authority of guardians to a definite sys- tem. The latest English text-writer enumerates no less than eleven different kinds of guardians, many of which are obso- lete, and others of merely local application.- Among them may be mentioned guardianship in chivalry^ an incident of the feudal tenure, more in the nature of a hardship than a privilege, so far as the ward was concerned, which was finally abolished in the time of Charles II. ; guard iansJiijj hy special custom^ which was confined to London and certain other localities, and ap- pears to exist no longer ; guardianship hy ap>2Jointment of the sjjiritiLal courts, traces of which still exist in the appointment of administrators durante minore cetate ; guardianship hy preroga- tive, applicable only to the royal family ; and guardian- * 391 ship hy * election of the infant, which appears to us more properly considered at this day in connection with the appointment of chancery guardians. But guardianship hy nature and nurture, guardianship in socage, testamentary 1 1 Bl. Com. 460; 2 Kent Com. 220. 2 Macphers. Inf. 2 et seq., to which the reader is referred for a full account of these kinds of guardianship, including guardianship under stat. 4 & 5 P. & M. c. 8, alluded to in 1 Bl. Com. 461, and repealed by 9 Geo. 4, c. 31. See also 1 Bl. Com. 461, and Harg. notes. [420] GUARDIANS IN GENERAL. * 391 guardianship, and chancery guardianship, require special con- sideration, and these will be taken up in order. Guardianship by nature and nurture denotes hardly more or less than the natural right of parents to the care and custody of their children. It has been usual to treat of guardians by nature as distinct from guardians by nurture ; but in reality the latter constitute, for practical purposes, only a species of the former. Mr. Macpherson considers them together, and doubts whether guardianship by nature, as known in the old law, has existed since the time of Charles II., when feudal tenures were abolished ; for it appears to have originated in the practice of selling the marriage of the heir.^ Guardianship by nature and nurture belongs exclusively to the parents : first, to the father, and, on his death, to the mother. The father's right was formerly preferred to the mother's in all cases, while the modern tendency is otherwise. The office of natural guardian lasted during the minority of the child ; but guardianship by nurture ceased when he attained the age of fourteen. So guardianship by nature applied to the heir apparent or presumptive, and guardianship by nurture to the other children. Guardianship by nature was something higher than guardianship by nurture.^ But it is, nevertheless, clear that the father has a right, recognized by general law, to the custody of all his children, not only during the period of nurture, but until the age of majority. So, too, the mother, if not superseded by the infant's election at fourteen, or by the appointment of a new guardian, has, in the absence of the father, the legitimate care of the child for the same period.^ * The authority of such guardians extends only to * 392 the ward's person. They have no right to intermeddle with his property.'* Blackstone says, that if an estate be left 1 Macphers. Inf. 52, 58. See also 1 Bl. Com. 401, and Harg. notes 1 & 3; 2 Kent Com. 220, 221. ■•J 1 Bl. Com. 401, and Ilarg. notes ; 2 Kent Com. 220, 221. 3 Macphers. Inf. 01, 05 ; snpra, pp. 332-342. 4 1 Bl. Com. 401, and Harg. notes ; 2 Kent Com. 220, 221 ; Hyde v. Stone, 7 Wend. 354; Kline v. Beebe, Conn. 40 4 ; Fonda v. Van Home, 15 Wend. 031. [421] * 392 GUARDIAN AND WARD. to an infant, the father is, by common law, the guardian, and must account to his child for the profits. But this is only because the law holds him and all others responsible as a quasi guardian ; and it is well settled at the present day, that if a child becomes vested with property during his father's lifetime, there is no one strictly authorized to take it until a guardian has been duly appointed. Guardianship by nature and nurture is inferior to guardian- ship in socage ; and it yields to every kind of guardianship which exists by strict appointment, so far as the ward's prop- erty is concerned, though not necessarily as to his person. Guardianship in socage arises, at common law, whenever an infant under fourteen acquires title to real estate ; the chief object of the trust being the protection of such property and the instruction of the young heir in the pursuit of agriculture.^ It applies only when the infant has land by descent, and can- not exist if his estate be merely personal. His title, too, must be legal and not merely equitable ; hence it would seem that there cannot be a guardian in socage where the interest of the ward is only reversionary.^ This species of guardianship was anciently assignable, so far at least as the custody of the infant was concerned ; but by the doctrine and practice of later times it became regarded as a strictly personal trust, neither trans- missible by succession, nor devisable, nor assignable.^ The duty of the guardian in socage is to take possession of the heir's person and real estate, to receive the rents and profits until the heir reaches the age of fourteen, to keep his * 393 evidences * of title safely, and to bring him up well.^ His powers are commensurate with his duties. He acquires by virtue of his office an actual estate in the ward's land, though not to his own use ; ^ he may gain a settlement by actual residence upon it ; ^ and he can grant leases termi- 1 1 Bl. Com. 461, and Harg. n.; 2 Kent Com. 220; Dagley v. Tolferry, 1 P. Wms. 285. 2 Macpliers. Inf. 19 ; 2 Bl. Com. 88. 3 Macpliers. Inf. 20 et seq. ; 2 Bl. Com. 461, and Ilarg. n. ; 2 Kent Com. 223. * Co. Litt. 89 ; Macpliers. Inf. 28. 5 Plowd. ch. 293 ; Macpliers. Inf 28 ; Rex v. Sutton, 3 Ad. & El. 597. 6 Rex V. Oakley, 10 East, 491 ; Macpliers. Inf. 28. [422] GUARDIANS IN GENERAL. * 393 nable, and perhaps even void, when the ward reaches the ao-e of fourteen.' A guardian in socage cannot be removed from office, but the ward may supersede him, at this age, by a guardian of his own choice. ^ Guardianship in socage ha^ been said to extend to* the heir's personal property ; but there is insufficient legal au- thority for such a supposition, though it is likely that the farm-stock and household chattels of the ward were included ; and when this guardianship was common, personal property consisted of little else.^ One peculiarity of this guardianship was, that the trust belonged only to such next of blood to the child as could not possibly inherit, and it devolved upon him without appoint- ment ; the common law, with a characteristic distrust of human nature, deeming it imprudent to confide the child's interests to one who expected the succession. For, as For- tescue and Sir Edward Coke affirmed, to commit the custody of the infant to such a person, was like giving up a lamb to a wolf to be devoured."^ Guardianship in socage has passed into disuse, though it cannot be said to have been actually abolished. , Testamentary guardianship was instituted by the statute of 12 Car. II. c. 24, and for this reason testamentary guar- dians are sometimes called statute guardians.^ This statute provided * that any father, whether an infant * 394 or of full age, might, by deed executed in his lifetime, or by his last will and testament, dispose of the custody and tuition of his child, either born or unborn, to any person or persons in possession or remainder, other than popish recu- sants ; such custody to last till the child attained the age of twentj'-one, or for any less period, and to comprehend, mean- time, the entire management of his estate, both real and per- sonal. So far as popish recusants are concerned, this statute 1 Bac. Abr. Leases, i. 9 ; 1 Ld. Raym. 131 ; Rex v. Sutton, 5 Nev. & M. 353 Macpliers. Inf. 35, 3G. 2 Co. Litt. 89 a ; Macpliers. Inf. 41. 3 Macpliers. Inf. 31 ; Bedell v. Constable, Vaugh. 185. But see Ilarg. n. G7 to Co. Litt. 89. * Co. Litt. 88 6; 1 Bl. Cora. 462. 5 1 Bl. Com. 4G2. [423] * 394 GUARDIAN AND WARD. has since been modified ; and all religions disabilities as to the office are now removed ; ^ and since the statute of 1 Vict. c. 26, an infant, though the father, cannot exercise the right of testamentary appointment ; otherwise, the statute remains in forcfe. Under this English law it matters not what are the father's religious ojjinions.^ But a mother cannot appoint, nor a putative father, nor a person in loco parentis.^ The important question arises, under this statute, whether the words " by deed executed in his lifetime " permits the father to dispose of his children by any instrument not testa- mentary he may see fit to make. Lord Eldon was of the opinion that he could not, but was confined to a testamentary instrument in the form of a deed, which cannot operate dur- ing life and may be revoked at pleasure.* Such is doubtless the English law at the present day.^ Testamentary guardianship gives the custody of the ward's person, and of all his real and personal estate ; and it em- braces not only such property as comes to the ward * 395 through descent, * devise, bequest, or inheritance from the father, but all that he may acquire from any person whomsoever, and whether real or personal. This shows that the guardian's interest is derived not from the father, but from the law itself, for the father could give him no interest over that which was never his own.^ Besides having the advantage of full control over the ward's entire estate, the testamentary guardian stands better than the guardian in socage, inasmuch as his power lasts until the ward reaches his majority, unless the father has seen fit to limit his trust to a less period. Testamentary guardianship, as now understood, was un- known to the common law. Lord Alvanley said, in Ux parte 1 31 Geo. 3, c. 82; 4 Mont. & C. 687 ; Corbet v. Tottenham, 1 Ball & B. 59. 2 Villareal rf. Hellish, 2 Swanst. 538. 3 Macphers. Inf. 83 ; 1 Bl. Com. 462, Harg. n. ; Vaugh. 180; 3 Atk. 519; supra, p. 388. 4 E.r parte Earl of Echester, 7 Ves. 367 ; Earl of Shaftesbury v. Lady Han- nam. Finch Rep. 323. 5 Macpherson intimates a different opinion. See Macphers. Inf. 84 ; Lecone V. Sheires, 1 Vern. 442. « Macphers. Inf. 91. See also Gilliat v. Gilliat, 3 Phillim. 222. [424] GUARDIANS IN GENERAL. * 395 Ilchester : " It is clear, by the common law, a man could not, by any testamentary disposition, affect either his land or the guardianship of his children. The latter api^ears never to have been made the subject of testamentary disposition till the statute 12 Charles II." ^ But it seems probable, from some expressions of Lord Coke, that, so far as the custodj'^ of the Avard's person was concerned, though not as to his lands, testamentary dispositions were not unknown to the old com- mon law, and that this testamentary guardian, sometimes confounded with the guardian for nurture, had the care of the child until he reached the age of fourteen, with power to dispose of his chattels.^ Guardians by appointment of a court of equity, or chancery guardians^ as they are termed, have, within the last century, assumed such imj)ortance, as almost to supersede in the Eng- lish practice the other kinds, except perhaps the testamentary guardian. The earliest known instance of such an appoint- ment occurred in 1696.^ Blackstone speaks of the practice in his day as applicable chiefly to guardians with large estates, who sought to indemnify themselves and to avoid disagree- able contests with their wards, by placing themselves * under the direction of the Court of Chancery.'* The * 396 origin of this guardianship is obscure. Mr. Hargrave considered it an act of usurpation by the Lord Chancellor, but admitted the jurisdiction to have been fully establislied in his tinie.^ Fonblanque warmly controverts the charge of usurpation, claiming that the jurisdiction exercised by the Court of Chancery over infants flows from its general author- ity, as delegated by the crown.*^ This latter view has met with the best judicial approval ; for, as Lord Hardwieke and others have expressed it, the State must place somewhere a superintending power over those who cannot take care of themselves : and hence chancery necessarily acts, represent- 1 7 Ves. 370. 2 Co. Litt. 87 h] Co. Cop. § 23; Macpliers. Inf. 68. ; * Case of Hampden. See Co. Litt. 88 b, Harg. n. 4 1 Bl. Com. 463. 5 Co. Litt. 89 a, Harg. n. 70. 6 2 Fonb. Eq. 228, n., oth etl. ; 2 Story Eq. Juris. § 1333. [425] * 396 GUARDIAN AND WARD. ing tlie sovereign as parens patrice.^ From the peculiar na- ture and restrictions of the other kinds of guardianship, many orphans, whose fathers had failed to appoint a testamentary guardian for them, would be otherwise without protection either of person or property. Whatever may he the origin of the jurisdiction by virtue of which courts of chancery appoint guardians in such cases, the right of making such appointments, and in general of controlling the persons and estates of minors, has long been firmly established, and cannot at this day be shaken. An infant is constituted a ward in chancery whenever any one brings him in as party plaintiff or defendant, by a bill asking the directions of the court concerning his person or estate, or the administration of property in which he is inter- ested.2 jj^ ^}jig character he is treated as under its special protection. Again, a petition may be presented for the ap- pointment of a chancery guardian, alleging that the infant has estate, real or personal. But the mere appointment of a guardian, in this instance, will not make him a ward in * 397 chancery.^ * Where a suit is pending, the court ap- points a guardian of the person only ; in other cases a guardian of the person and estate^ So chancery will appoint a guardian on petition, where testamentary guardians decline to act ; and if necessary, determine on petition the right of a guardian already appointed.^ As to the general jurisdiction of chancery over infants, it may be observed that in the appointment and removal of guardians, in providing suitable maintenance, in awarding custody of the person, and in superintending the management and disposition of estates, the chancery court wields large powers for the benefit of the young and helpless. This juris- diction being clear of technical rules and dependent upon the discretion of the Chancellor, adapts itself far more readily to the various grades of society, the intention of testators, the wants and wishes of the infants themselves, and the different 1 Butler r. Freeman, Au)bl. 301. See Lord Thurlow, in Powell v. Cleaver, 2 Bro. C. C. 499 ; Lord Eldon, in De Mannevilie v. De MannevillB; 10 Ves. 62. 2 Macphers. Lif. 103 ; Auibl. 302, n. 3 Macphers. Inf. 104. ^ lb. 105. » lb. 104. [ 426 ] GUARDIANS IN GENERAL. * 397 varieties of property, than all the other guardianships com- bined.i By compelling trust officers to give security to in- vest under its direction, and to keep regular accounts, the court exerts a wholesome restraint on the ward's behalf, while at the same time it arms the guardian against all at- tacks of a capricious heir, by affording its sanction to his official acts. Chancery guardians are, in general, only appointed where there is property ; but this is because guardianship can scarcely be necessary otherwise. Chancery, as Lord Eldon observed, cannot take on itself the maintenance of all the children in the kingdom.^ Hence persons desiring to call in the authority of the court for the protection of an infant sometimes resort to the expedient of settling a sum of money upon him.3 The great objection to chancery guardian- ship is its expense, and * the lavish outlay of money * 398 which becomes requisite at every step renders the prac- tical benefit to the minor often questionable. Less cumbrous machinery would remedy this evil. There are some English statutes relating to the poor, the employment of apprentices, and the like, which, in connection with the Avrit of habeas corpus, are designed to supersede, in a measure, the necessity of personal guardianship, for those who are without property and yet need protection."* Guardianship by election of the infant deserves a passing notice. We have seen that the infant in socage had the right of choosing a guardian at the age of fourteen. This age was recognized also as the limit to guardianship for nur- ture ; the law choosing to yield somewhat to the ward's dis- cretion thenceforth.^ The socage ward might therefore, if he had no testamentary guardian, choose one to act on his be- half until majority, by executing a deed for that purpose. But little is really known on this sul)ject, and the instances I 1 Bl. Com. 463, Harg. n. ^ Wellcslcy v. Duke of Beaufort, 2 Russ. 21. » Macnliers. Inf. 103. * 1 Bl. Com. 4G3, Harg. n., and acts there enumerated. 5 Supra, p. 393. [427] * 398 GUARDIAN AND WARD. mentioned in the books are exceedingly rare.^ Blackstone again, speaking of guardians for nurture, adds that in default of father or mother, the ordinary usually assigns some dis- creet person to take care of the infant's personal estate, and to provide for his maintenance and education.^ The practice in the spiritual court was to permit the minor, when of suita- ble age, to nominate his guardian subject to its approval. This was but a limited privilege after all, though it seems to have been granted to all children between seven and twenty- one.^ It is manifestly different from the right of election allowed the socage ward. The authority of spiritual courts to appoint a guardian of the person and estate was emphati- cally denied by Lord Hardwicke, and chancery afterwards took this guardianship completely into its own keeping. * 399 The infant, above the age of fourteen, is * still per- mitted to nominate his guardian before the Court of Chancery ; but his nomination does not supersede the author- ity of the court, whether he be a socage ward or not.* Guar- dianship by election of the infant has thus become a misnomer, for he does not absolutely elect. Guardianship in the United States differs considerably from guardianship in England. Here the whole subject is con- trolled in a great measure by local statutes. There are fewer kinds of guardians found in American practice, though some of the more important classes are recognized to a Kmited extent. Thus guardianship by nature and nurture, or the parental right of custody, prevails in most of the States. But as all children, male and female, inherit alike with us, guar- dianship by nurture is not even so clearl^^ distinguished from guardianship by nature, as in the English practice.^ Guardianship in socage was never common in the United States. But traces of its existence are to be found. Thus ■ I Co. Litt. 88 b, Harg. n. 16 ; Macpliers. Inf. 77. ■^ 1 Bl. Com. 4G1. 3 Fitzgib. 164 ; Co. Litt. 88 b, Harg. n. 16. * Co. Litt. 88 b, Harg. n. 16 ; Hughes v. Science, 3 Atk. 631 ; Macphers. Inf. 74, 78. 5 2 Kent Com. 221 ; Reeve Dora. Rel. 315; Macready v. Wilcox, 33 Conn. 32L [428] GUARDIANS IN GENERAL. * 399 in 1809, a guardian in socage, in New York, was permitted to bring trespass and ejectment.^ This species of guardianship is now ahnost wholly superseded. In fact it could seldom have arisen, since half-blood and whole-blood relatives in this country inherit alike ; so that a blood relation who cannot possibly inherit could rarely be found to assume the duties of the office.^ A father who holds lands for life, with the re- mainder vested in his children, cannot be their guardian in socage.^ And the lease of his ward's lands by any such guardian may be defeated by the appointment of another guardian, pursuant to the statute, who elects to avoid it.* We have testamentary guardians, with essentially the same powers and duties as in England. The statute of 12 Charles II. has been enacted in most of the United States, with the language somewhat changed. No religious disabilities are imposed in our law. But while some States follow the words of the ancient statute as to minor fathers, the right is elsewhere restricted to such as are competent to make a will ; and this is * a preferable expression. For pre- * 400 cise modifications the student should consult the laws of his own State. Some statutes use the words " deed or will." The Ohio statute drops the word " deed " altogether. And not uncommonly is it found in America that testamen- tary guardians can only be appointed by a will executed with the usual solemnities.^ The right of testamentary appointment is still confined to the father in most States. But an Illinois statute permits the mother, if not remarried, to appoint such a guardian, pro- vided no appointment was previously made by the father.^ In New York, the consent of the mother is required to a tes- tamentary appointment by the father.^ So, too, the English 1 Byrne v. Van Iloesen, 5 Johns. 66. See also Jackson v. De Walts, 7 ib. 157. 2 2 Kent Com. 222, 223 ; Reeve Dom. Rel. 315, 316. 3 Graham v. Houghtalin, 1 Vroom, 552. * Emerson i'. Spicer, 46 N. Y. 594. 5 See 2 Kent Com. 225, 226 ; Hoyt v. Hellen, 2 Edw. Ch. 202 ; Matter of Pierce, 12 How. Pr. 532; Vanartsdalen v. Vanartsdalen, 14 Penn. St. 384 ; Ward- well V. Wardwell, 9 Allen, 518. 6 N. Y. Stat. 1862, c. 172. And see Sackett's Estate, 1 Tuck. (N. Y. Surr.) 84. [429] * 400 GUARDIAN AND WARD. principle prevails, that the testator can appoint a guardian over his own children only ; the right extending, however, to posthumous offspring. He cannot appoint guardians for other children, though he give them his property.^ But where a statute provides that a child may be adopted by one with the same rights as if the offspring were his own, it seems just that the father, thus constituted, should have the right of appoint- ing a testamentary guardian for his adopted child, just the same as for other children. Chancery guardianship may be considered as adopted to some extent in this country. The supreme courts in many States have now full chancery powers, as in England, over the persons and estate of infants ; they may order invest- ments, decree care and custody of the person, take children under their protection as wards of the court in certain cases, regulate the conduct of guardians, and otherwise exercise the important functions which vest in the English equity courts. But English chancery jurisprudence is one thing, and that of the United States another. While in one country the ap- pointment, removal, and general supervision of guardians im- mediately belong to the equity courts, in the other a special tribunal is usually created for such matters. It is this special tribunal — somewhat resembling the English ecclesias- * 401 tical court — which alone issues letters *of guardian- ship, revokes them, and superintends trust accounts in. the first instance. The guardians thus chosen have, in gen- eral, the rights and duties of chancery guardians of the person and estate. The propriety of distinguishing between chancery guardians and those appointed by the special courts of this country — whether known as the probate, orphans', ordinary's, or surro- gate's courts — is obvious when the origin of our probate jurisdiction is considered. At the time America was colonized, chancery guardianship was unknown in England. ' The eccle- siastical or spiritual courts, independent of all temporal author- ity, controlled the estates of orphans and their deceased 1 Brigham v. Wheeler, 8 Met. 127 ; 2 Kent Com. 225. [430] GUARDIANS IN GENERAL. * -401 parents. The necessity of some tribunal with probate juris- diction was soon apparent to our ancestors ; but, rejecting the idea of a church establishment, they distributed probate and equity powers among the common-law courts. Their judicial system was at first simple : that of local county courts with a supreme tribunal of appeal. With the growth of population came a division of these powers in the inferior courts. New county tribunals were erected for business appertaining to estates of the dead, testamentary trusts, and the care of orphans : a blending, as it were, of ecclesiastical and equity functions. The old county courts were left to their common- law jurisdiction, while the supreme tribunal retained control over them all, exercising appellate powers in common law, equity, and ecclesiastical suits. Such, in a word, is the gen- eral origin of guardianship by judicial appointment in this country.^ While the English chancery court was slowly extending its rights over the persons and estates of infants, another system was in process of growth on this side of the water, borrowing from English law as occasion offered, and adapting itself to the increasing wants of our own community. This system, fostered doubtless by a strong jirejudice against chancery practice, with its expensiveness and prolixity of pleadings, a prejudice widely * prevalent during the * -402 last century, especially in New England, spread gradu- ally into the new vStates and territories, the creature of stat- ute law M^herever it went. Much confusion has arisen in our courts wherever this dis- tinction has not been kept in view. The law of guardianship is often discussed as though we inherited the English chan- cery system, when in truth our usual practice is without its counterpart abroad. The only American text-writers of authority on this subject. Reeve and Kent, have contributed to this perplexity. The former was not precise in his classi- fication.2 The latter unwisely confused American and Eng- lish ap2)ointments, applying the term chancery guardians to botli."^ But the courts have sometimes perceived the neces- ' See Smith (Mass.) Prob. Pract. 1-5. 2 Reeve Dom. Rel. 311. 3 2 Kent Com. 226. [431] *402 GUARDIAN AND WARD. sity of a separate name for guardians appointed by courts of probate jurisdiction. Accordingly, they have been called guardians of the person and estate ; ^ but this name is quite as appropriate to others. So, too, they are designated as statute guardians ; but there are statute modifications applied to all kinds of guardians, and besides, this name was long ago bestowed by English writers upon testamentary guardians? We shall apply then in these pages, for want of something better, the distinguishing term prolate guardians ; this being sufficiently precise and suggestive ; though it is admitted that the appointing power is not lodged in tribunals styled probate courts in every State, nor necessarily separated from courts exercising common-law functions. By the civil law, minority was divided into two distinct periods : the first lasting until the age of puberty, fourteen in males, and twelve in females ; the second continuing from that time until majority. During the first period, the guar- dian was called tutor, and the children pupils. During the second period, the guardian was called curator, and the * 403 children * minors ; the curator being appointed with special reference to the management of property.^ The same general divisions are to be found in the law of con- tinental Europe at the present day, though modified somewhat b}^ custom ; also in Scotland ; '^ also in Louisiana, and other parts of this country, which were formerly under French and Spanish dominion. But the term curator is in some codes applied to the guardian of the estate of the ward as distin- guished from the guardian of the person.^ So the civil law recognized three kinds of guardianship : tutela testamentaria, conferred by testament ; legitima, by the law itself ; dativa, by the authority of the judge.^ These divisions have their corresponding analogies in English and American law ; since we may place testamentary guardians in the first class, socage 1 See Arthur's Appeal, 1 Grant (Penn.), 55. - See siipra, p. 393. 3 Story Confl. Laws, § 493 ; 3 Burge Col. & For. Laws, 930, 1001-1014. * Fraser Guardian & AYard, 145. 5 2 Kent Com. 224 ; Duncan v. Crook, 49 Mis. 116. « Co. Cop. § 23 ; Macphers. Inf. 573 ; 8 Burge Col. & For. Laws, 931. [432] GUARDIANS IN GENERAL. * 403 and natural guardians in the second, and chancery and pro- bate guardians in the third. The different kinds of guardianship for minors having been considered, we proceed to speak briefly of guardians for idiots, lunatics, and spendthrifts, though this subject comes hardly within our scope. Under the king's sign-manual, the Lord Chancellor was invested with jurisdiction over the persons and estates of insane persons. For this reason did chancery claim authority ; not by virtue of the king's pre- rogative as parens patrice ; for idiots and lunatics, it is said, were not under the protection of the sovereign until the time of Edward II.^ Lunatic asylums are provided by law, and regulated from time to time. For legally determining the question of insanity in any case, chanceiy grants a commis- sion in the nature of a writ, directed to masters in lunacy ; and if the subject be found noyi compos^ the court commits his person, together with a suitable allowance for his mainte- nance, to some person who is then called his committee. ^ Blackstone states that the rule in his day was to refuse this guardianship to the lunatic's next of kin, " because it is his interest that the party should die ; " * but this * 404 rule has long been disregarded in practice.^ The com- mittee manages his ward's estate, much the same as other guardians, being held to a strict account to the court of chan- cery, and to the ward, if he recovers, or otherwise to his per- sonal representatives after his death. There are receivers appointed, with a salary, in case others refuse to act ; but such officer is considered as a committee, and gives proper security.* Guardians of insane persons are appointed in this country ; but in general by the courts exercising jurisdiction in case of minors, which derive also their authority from local statutes.^ The civil law likewise assigned tutors and curators to such persons.^ • 2 Story Eq. Juris. §§ 1.3.35, 1336 ; 1 Bl. Com. 303 ; 3 P. Wms. 108. 2 1 Bl. Com. 306. See Lunacy Regulation Act 1853, 16 & 17 Vict. c. 70. ' Ex parte Cockayne, 7 Ves. 591. « 1 Bl. Com. 306. See Ex parte Warren, 10 Ves. 622. * See U. S. Dig. "Idiots and Lunatics; " Shroyer v. Richmond, 16 Ohio St. 455. « 1 Bl. Cora. 306. 28 [ 433 ] * 404 GUARDIAN AND WARD. Guardianship for spencltlirifts was something recognized by the civil hiw. Where a man, by notorious prodigality, was in danger of wasting his estate, he was looked upon as 7ion compos^ and committed to the care of curators or tutors by the prsetor.^ And by the laws of Solon, such persons were branded with perpetual infamy .^ Such guardianship is, how- ever, unknown in England, and Blackstone considered it unsuitable to the genius of a free nation.^ It has never- theless been introduced into several of the United States.^ Being the creature of statute law, the rights and powers of such a guardian, and the method of appointment, are strictly construed. The recent statutes relating to married women in this coun- try have rendered some special provisions necessary for their benefit. While their husbands had the full enjoyment of their propert}'", no guardian was necessary, and the main object of these statutes seems to be to provide a suitable trustee of the estate, in case a minor or insane wife is abandoned * 405 by her husband, * or he is likewise mentally unfitted for the trust. Such statutes are to be strictly con- strued as in derogation of the common law.^ Besides guardians with general powers, there are guardians created by law for special purposes. Such are guardians under the English marriage act, appointed for giving formal consent to the marriage of a minor, and guardians to release dower and homestead rights of insane married women. All such guardians derive their sole authority from statutes, and hav- ing performed the duty prescribed, they have no further con- cern with the ward. Nor do they act except in default of a general guardian. There are also public officers appointed for charitable purposes on behalf of the State, sometimes known as guardians ; such as guardians of the poor ; but, except for this appellation, they have no connection whatever with our subject.^ Special guardians, too, are found under 1 Ff. 27, 10, 6, 16. 2 Potter Antiq. b. 1, c. 26. 3 1 Bl.Com. 306. * See Mass. Gen. Sts. c. 109, §§ 8, 9. 6 Smith Prob. Pract. 87. 6 See Macphers. Inf. 164 ; Smith Prob. Pract. 87. [434] GUARDIANS IN GENERAL. * 405 some statutes, their rights and duties being merely temporary, pending some controversy over the appointment of a general guardian ; just as special administrators are sometimes ap- pointed in a case of emergency, and where the appointment of the general administrator is necessarily delayed.^ Finally, there is the guardian ad litem^ who is simply a guardian for a special purpose ; being one chosen to repre- sent the ward in legal proceedings to which he is a party defendant. Where the ward is j)laintiff he appears by next friend. The powers and duties of guardians ad litern are similar in England and the United States.^ 1 Campau v. Shaw, 15 Mich. 226 ; Swartwout v. Oaks, 52 Barb. 622. 2 Macphers. Inf. 358 ; 2 Kent Com. 229. See Infants, post. [435] 406 GUARDIAN AND "WARD. *406 * CHAPTER II. APPOINTMENT OF GUARDIANS. Guardians derive their authority either from the law or a special appointment. And all guardians of infants specially appointed must be appointed by the infant's parent ; or by the infant himself; or by a court of competent jurisdiction. Guardians by nature and nurture act under authority of the law ; which designates, first, the father ; and, after his death, the mother. These are the only natural guardians possible.^ It has been said that the infant's next of kin succeed to the natural guardianship when both parents are dead.^ This cannot be correct according to the sense of the term as used at this day. The mother is considered the natural guardian of a bastard, in this country, as against its putative father ; ^ though the common law regarded such children as without a natural guardian.^ On principle, it would seem that the natural guardianship of a child is shifted to the mother when custody is awarded her because of her husband's personal unfitness. And the modern tendency is to regard both hus- band and wife as guardians, by nature, of their own children.^ Socage guardians also derived their authority from the law, and not from a special appointment.^ Testamentary guardianship is the only recognized * 407 instance of * authority derived from parental appoint- 1 Co. Litt. 88 6 ; 1 Bl. Com. 461 ; 2 Kent Com. 220 ; Macphers. Inf. 52 ; Jarrett v. State, 5 Gill & Johns. 27 ; Eldridge v. Lippincott, Coxe, 397 ; Fields V. Law, 2 Root, 320. - See Reeve Dom. Rel. 315. • 3 Wright V. Wright, 2 Mass. 109 ; Hudson i-. Hills, 8 N. H. 417 ; People v. Kling, 6 Barb. 366 ; Dalton v. State, 6 Blackf. 357. * Macphers. Inf. 67 ; supra, pp. 382, 384. s See supra, p. 333, 338, 391, 399 ; People v. Boice, 39 Barb. 307. 6 2 Kent Com. 223 ; see supra, pp. 392, 399. [436] APPOINTMENT OF GUARDIANS. * -107 ment. Guardians thus appointed require no further quaH- fication ; not even the probate of the will which appoints them.i But testamentary guardianship exists in this country chiefly by force of local statutes. And we find many modi- fications of the English rule ; none more important than those of several vStates which render a probate of the will neces- sary before a testamentary guardian can act ; while it is not unfrequently found that the appointment remains subject to the approval of the court, and requires the presentation of due security by the person appointed. The parol appointment of a testamentary guardian is in- sufificient.2 But the instrument which designates him need not be executed with the same formality as a will ; for the father, as the old statute intimates, may appoint by testamen- tary deed. It has been held that the appointment of guardians by a will not duly attested was made good by a codicil duly attested, written on the same paper, making certain altera- tions in the will, and confirming it in other respects.^ It is sometimes difficult to determine what language will constitute testamentary guardianship. The statute uses the words " custody and tuition " in reference to the children ; and such assignment of the children as confers, expressly or by implication, a power thus extensive, ought to suffice. Thus, where a testator gives the " care and custody " of his children, further directing that the person so intrusted shall be guided by the advice of his executors, as to the children's education, this is held to be a good appointment.^ So it is held that testamentary guardianship was constituted, where a testator directed the trustees of his will to procure a suitable house for the residence of his children, who were in- fants, and to engage a proper * person for the purpose * 408 1 Brigham v. Wheeler, 8 Met. 127 ; Hoyt's Case, 2 Edw. Ch. 113 ; In re Hart, 2 Con. &L. 375; Lady Chester's Case, Vent. 207. See 7 A^cs. 365; Gilliat v. Gilliat, 3 PhiUim. 222. The validity of the testamentary appointment beinf^ in dispute, a court of common law over a question of custody has directed an issue in order to establish the same. In re Andrews, L. R. 8 Q. B. 153. '^ Macphers. Inf. 84. See Johnstone v. Beattie, 10 CI. & Fin. 42. ' De Bathe i^. Lord Fingal, 16 Ves. 167. But see Marshall, C. J., in Gainei V. Spann, 2 Brock. 81 ; Ward well v. Ward well, 9 Allen, 518. * See Corrigan v. Kiernan, 1 Bradf . 20S. [437] * 408 GUARDIAN AND WARD. of taking the management and care of the house and of his children during their minority ; and requested his late wife's sister, if she should be alive at his decease, to take such management and care on herself.^ And in general testa- mentary guardians need not be exjDressly designated as such ; albeit in order to constitute them by implication, the powers essential to the office must be conferred.^ The devise of certain property in trust for infants is not a devise of guardianship. Thus, it was said by Lord Vaughan that, where a testator devised land to a trustee, to be held in trust for his heir, and for his maintenance and education until he should be of age, this was no devise of the custody within the statute, for he might have done this before the statute.^ The same may be said generally of legacies and bequests in trust.* Testamentary guardians, to use the statute expression, may be appointed " either in possession or remainder ; " that is, successors in the guardianship may be designated. So they may be authorized to act during the full term of the infant's minority or for a less period. So the will may give authority to the surviving guardian to nominate a person in the place of his co-guardian who has died ; although it appears to be a general rule that one testamentary guardian cannot appoint another, since his office is personal, and not assignable.^ In other words, the testator is allowed a liberal discretion in his selection and in limiting authority. The paper which creates a person testamentary guardian, becomes thus the test of his official powers and responsibility. Letters of guardianship from the chancery or probate court give his appointment no additional force, unless required by statute. In fact such letters, however regarded in his dealings with strangers, are as a rule issued without jurisdiction.^ 1 Miller v. Harris, 14 Sim. 540. See Mendes v. Mendes, 1 Ves. 89; s. c. 3 Atk. 619. 2 Gaines v. Spann, 2 Brock. 81 ; Peyton v. Smith, 2 Dev. & Batt. Eq. 325 ; Johnstone v. Beattie, 10 CI. & Fin. 42; Balch v. Smith, 12 N. H. 437. 3 Bedell v. Constable, Vaugh. 177. * Kevan r. Waller, 11 Leigh, 414 ; Dunham v. Hatcher, 31 Ala. 483. 5 Goods of Parnell, L. R. 2 P. & D. 379; Macphers. Inf. 82; Vaugh. 177. « Robinson v. GoUinger, 9 Watts, 169 ; Morris v. Harris, 15 Cal. 226 ; Holmes [438] APPOINTMENT OF GUARDIANS. * 409 * In a late New York case, it was held, on appeal * 409 from the surrogate, that no probate guardian could be appointed after the father's decease, where the father, being a man of indigent circumstances, had surrendered his children to a charitable institution by an instrument in writ- ing, executed during his lifetime, and not long before his death, in presence of two witnesses, which purported to " commit and surrender " the children to the said insti- tution pursuant to its charter. There were no testamentary expressions used, nor did the instrument appear to have been executed in contemplation of death. The decision of the court appears to rest on statutory interpretation. ^ In general, a firm cannot be made guardian of an infant ; nor probably can a corpora tion.^ The testator's power of appointment extends to all his lawful children surviving at his decease, being still minors and unmarried. Posthumous children are, likewise, included. And the testator's appointment of his wife as testamentary guardian is not revoked by the birth of such issue, subse- quent to the execution of the will or testamentary deed appointing her ; the analogy of distribution of his property failing to affect this case.^ Guardianship by sole appointment of the infant cannot now be said to exist. But at the common law there was one instance where it arose ; namely, when the heir above the age of fourteen chose to supersede his guardian in socage, by one of his own choice, under a deed of appointment.^ Infants have still the privilege of nominating, though not appointing, a guardian in court, after arriving at this age ; V. Field, 12 111. 424; Copp t'. Copp, 20 N. H. 284. See Macpliers. Inf. 84, 86; Stone V. Dorrett, 18 Tex. 700. If the testator's will prescribes that the wife shall be testamentary guardian of the children, " as long as she shall remain his widow," her authority ceases on her remarriage, and a new appointment be- comes necessary. Corrigan v. Kiernan, 1 Bradf. Sur. 208; IL^lmes v. Field, 12 111. 424. 1 People V. Kearney, 31 Barb. 430. - Sec Macphers. Inf. 109 ; De Mazar t>. Pybus, 4 Yes. G44. » llollingsworth's Appeal, -51 Penn. St. 618; 2 Bro. C. C. 538; Macphers. Inf. 87. * Supra, pp. 393, 398; Co. Litt. 89 a. [439] * 409 GUARDIAN AND WARD. and, if judicially sanctioned, their choice is good. In the appointment of chancery guardians, the custom is for the court to approve such nomination without the usual * 410 reference to a master.^ But this is not an * invariable rule .2 Testamentary guardians cannot be superseded in this way, nor chancery guardians.^ Statutes giving the right of selecting probate guardians to infants above fourteen have been enacted throughout the United States ; but the extent of this privilege is not uniformly prescribed.^ Yet the ward cannot set aside a testamentary or chancery guardian in this country ; nor, on principle, should he be allowed to supersede a probate guardian properly appointed, unless authorized to do so by a positive statute.^ Having once exercised his right of choice, he is bound by the appoint- ment, and cannot nominate again, as his fancy pleases.^ In any event, the court must sanction the infant's selection, and issue letters before the guardian can act ; so that this is guardi- anship by appointment rather of the court than of the infant. Chancery and probate guardians, subject to the above quali- fication, are created in strictness by the special appointment of a court exercising competent jurisdiction. And in discuss- ing this subject of judicial appointment we shall consider, first, the tribunal which appoints ; second, the persons prop- erly appointed ; third, the method of appointment ; and/our^A, the effect of the appointment. First. As to the first point, it may be premised that in England all guardians are appointed by the Court of Chancery in the exercise of inferior or appellate powers. Chancery guardians have been appointed in this country, but not fre- quently ; and county courts of probate jurisdiction at the 1 Ex parte Edwards, 3 Atk. 519 ; Macphers. Inf. 78, 109. 2 Ex parte Watkins, 2 Ves. 470 ; Curtis i;. Rippon, 4 Madd. 462 ; Coham v. Coham, 13 Sim. 639. 3 Palmer, 22 ; Andrew, 313 ; Matter of Dyer, 5 Paige Ch. 534 ; Matter of Nicoll, 1 Johns. Ch. 25. * See Ham v. Ham, 15 Gratt. 74; Dibble v. Dibble, 8 Ind. 307; Pitts v. Cherry, 14 Geo. 594 ; Arthurs' Appeal, 1 Grant, 55; Sessions v. Kell, 30 Miss. 458 ; Montgomery v. Smith, 3 Dana, 599 ; Palmer v. Oakley, 2 Doug. 433. 5 Dyer's Case, 5 Paige Ch. 534. « Lee's Appeal, 27 Penn. St. 229. See also E. B. v. E. C B., 28 Barb. 299. [440] APPOINTMENT OF GUARDIANS. * 410 present day generally act in the first instance, issuing letters of guardianship as well as of administration, under their official seal. Thus, in New England and most of the Western States, probate guardians are appointed * by * 411 the judge of probate ; in New York, by the surrogate ; in New Jersey, by the orphans' court or the ordinary ; in Pennsylvania and Maryland, by the orphans' court ; in Ohio, by the Court of Common Pleas with chancery powers; in California, by the district courts possessing a similar jurisdic- tion. In Virginia, North and South Carolina, the chancery and county courts have exercised a sort of concurrent juris- diction ; in others of the Southern States there are orphans' courts ; in Louisiana, the civil law has prevailed.^ Two important elements enter into this jurisdiction over the ward : possession of property and actual residence within the judicial limits. Property in the infant has usually been deemed essential in chancery practice.^ But in a case which came before Lord Chancellor Cottenham, in 1847, it was held that the court should interfere on behalf of infants without property, so as to award custody of the person. " I have no doubt about the jurisdiction," was his emphatic language.^ What may be called guardians of the person and estate in chancery are still appointed, however, on the allegation of property. In the United States, letters issue to probate guar- dians, whenever there is occasion for their appointment, the statute rarely prescribing narrower limits to the judge's au- thority ; and, as our practice is simple and attended with little expense, the same necessity for inquiry into the means of the infant does not manifestly arise as in the case of chancery guardianship. But statute and practice generally have refer- ence to cases of property.* Where the ward is a non-resident, guardianship is frequently recognized for the collection and preservation of his estate in the jurisdiction; and in such cases the court where the property is situated appoints some friend of the minor on his behalf, requiring proper 1 See 2 Kent Com. 226, 227, and notes ; Glascott v. Warner, 20 Wis. 654 ; Herring v. Goodson, 43 Miss. 302. 2 See Macpliers. Inf. 103 ; supra, p. 397. » In re Spence, 2 Ph. 247. * People V. Kearney, 31 Barb. 430. [441] *411 GUARDIAN AND WARD. * 412 security ; * the existence of tlie property determining the right of jurisdiction.^ Far more, important is the requirement of an actual resi- dence within the jurisdiction ; especially in States where the authority of courts with probate jurisdiction is strictly limited to their respective counties. Letters of guardianship obtained in the wrong county are null and void, and may be collaterally impeached in any court.^ Where the courts of two or more counties have concurrent jurisdiction, as if a non-resident has property lying in different places, the general principle is that the court where proceedings are first commenced retains jurisdiction. And letters once properly issued are not revoked by the ward's removal to another county within the same general jurisdiction. Where a new appointment becomes necessary, next to the inquiry whether the party is a minor or otherwise legally subject to guardianship at all, is the determination of his actual residence. But, as just observed, property may give jurisdiction in some cases where the ward resides abroad. Prima facie^ the infant's residence or domicile is that of his parent, and such it will remain during minority, in spite of his temporary absence at school or elsewhere. Nor can he of his own motion acquire a new domicile, since he is not a per- son suijuris.^ But his domicile may be changed by his father, if he has one ; otherwise, according to the best modern author- ities, by the surviving mother until her remarriage ; and per- haps, even by 'the guardian himself, although not a relative, provided he act in good faith.* The intent of the parent or guardian in such cases is always material ; but this * 413 intent is to be determined by facts. * The original domicile of an infant is that of his parents at the time of his birth. The infant's place of residence at the time when 1 Clarke v. Cordis, 4 Allen, 4G6. See Hope v. Hope, 27 E. L. & Eq. 249. 2 Ware v. Coleman, 6 J. J. Marsh. 198 ; Sears v. Terry, 26 Conn. 273 ; Dor- man V. Ogbourne, 16 Ala. 759 ; Munson v. Munson, 9 Tex. 109 ; Lacy t'. Wil- liams, 27 Mis. 280 ; Herring v. Goodson, 43 Miss. 392. * Macphers. Inf. 579 ; Brown v. Lynch, 2 Bradf. 214 ; Story Confl. Laws, §46. * Potinger i'. Wiglitman, 3 Mer. 07 ; 2 Kent Com. 227, 430 ; 1 Burge Col. & For. Laws, 39 ; Brown v. Lynch, 2 Bradf. 214. [ 442 ] APPOINTMENT OF GUARDIANS. * 413 a guardian is to be appointed determines the jurisdiction of the court. Hence, the court which appointed the first guar- dian of a ward may not always appoint his successor.' The Court of Chancery exercises a large discretion. Its authority over the persons and estates of infants, idiots, and lunatics cannot be questioned elsewhere. No tribunal short of the legislature can interpose a check upon its powers. But it is different with probate courts. Their jurisdiction is founded upon local statutes, maintained in derogation of the common law, made subject to supervision of supreme tribu- nals, and confined to the exercise of special powers sparingly conferred. From the fact that the English equity courts are unfettered in their authority, chancery courts in this country incline to the same direction ; hence, they construe strictly the powers of the probate courts while maintaining their own ; a matter of little difficulty, since the supreme authority is in their hands, whether in matters of probate, equity, or common law. With especial strictness are the powers of probate tribunals scrutinized in matters which do not grow out of the settlement of estates of deceased persons.^ It may devolve on chancery to appoint guardians where testamentary guardians decline or are disqualified to act. So where there are two or more testamentary guardians and they fail to agree.^ And it is the English rule that testamentary guardianship does not go over upon the guardian's death, no successor having been indicated in the will ; but chancery must supply the vacancy."^ The same may be said of the courts in this country with probate jurisdiction.^ Second. * In selecting the proper person as guardian, * 414 the judge is allowed to exercise a liberal discretion, and his decision will not b'e disturbed on appeal except for good and sufficient cause. Such is the rule both in Enghmd 1 Brown v. Lynch, 2 Bradf. 214. And see supra, p. 312. 2 See, for instance, as to insane persons and spendthrifts, Ilolden v. Soanlin, 30 Vt. 177; Sears v. Terry, 2G Conn. 273; Strong v. Bircliard, 5 Conn. 357; Cooper V. Summers, 1 Sneed, 453 ; Hovey v. Harmon, 49 Me. 269. 3 Macphers. Inf. 113; ib. 104. * Bac. Abr. Guardian and Ward, A. ^ See People v. Kearney, 31 Barb. 430 ; Judge of Probate v. Ilimis, 4 N. H. 4G4. [ 443 ] * 414 GUARDIAN AND WARD. and America.^ But this discretion is not an arbitrary one ; it must be exercised in conformity with certain fixed principles. And if the judge appoint without giving reasonable notice, so that parties interested have not a fair opportunity to be heard upon the petition, his appointment may be set aside on appeal.^ Where the father of an infant is living, courts have ever been unwilling to assume jurisdiction. Chancery, according to the old rule, as we understand Blackstone to mean,^ could not appoint a guardian except for fatherless children. But the correctness of this principle was afterwards doubted ; and when the rule became settled, in Lord Thurlow's time, that the father could not give a valid receipt for his child's legacy, the necessity of appointing a guardian to collect and hold personal property was apparent.* And since the substitution of chancery and probate wards in practice for socage wards, guardianship of the minor in the father's lifetime has fre- quently been sought in the courts.^ But the English chancery reluctantly interferes with the father's rights in such cases. Lord Chancellor Hart in 1828 refused to bestow the chancery guardianship of a minor upon a third person, on the ground that the father is guardian of his own children by paramount title and common right. And while he admitted that the court should in all cases assume the superintendence of the child's fortunes, he added, that during the father's life no other could be placed over the child, except under very peculiar circumstances, and * 415 even then rather as a * curator than a guardian.^ And the later decisions are to the same effect ; as, for in- stance, FynrCs Case, where Vice-Chancellor Bruce refused to make the mother a chancery guardian of her children against the father's wishes, though satisfied that the latter was unable to maintain them, and was such a person as would not have 1 Kaye's Case, L. R. 1 Ch. 387 ; Battle v. Vick, 4 Dev. 294; White v. Pom- eroy, 7 Barb. 640; Nelson v. Green, 22 Ark. 367. 2 Underhill v. Dennis, 9 Paige, 202. ^ 3 Bl. Com. 427. ♦ Cooper V. Thornton, 3 Bro. C. C. 96 ; Dagley v. Tolferry, 1 P. Wms. 285; 2 Kent Com. 220, and cases cited; Lang v. Pettus, 11 Ala. 37. 5 See Ex parte Bond, 8 L. J. 252, Ch. 6 Barry v. Barry, 1 Moll. 210. L 444 ] APPOINTMENT OF GUARDIANS. * 415 been selected for the guardianship of another person's chil- dren. ^ The great difficulty which arises in the English chancery practice, where guardianship is sought by a stranger, namely, that a father's custody of his own children is thereby dis- turbed, has been frequently obviated in this country by stat- ute. And in many States, while the father is living, probate guardians are appointed, whose powers, being limited to the infant's estate, do not come in conflict with the parental right to the ward's person.^ Yet in other States the probate courts can only grant guardianship to orphans, that is, to fatherless children ; ^ and where this is the case, chancery might assume jurisdiction in an extreme case, though the father were living. Most frequently the court's discretion is to be exercised, whether in chancery or probate appointments, in cases where the child is fatherless, and moreover too young to nominate for himself. Who, then, shall be selected ? The mother, if living and competent for the trust, would appear to be the most suitable person, unless remarried, and so in fact is she considered in this country. But in English chancery prac- tice it is said that no great importance is attached to her rights ; while undoubtedly she and the next of kin have to- gether the first claim.^ And it is improper to appoint the mother without some information as to the father's family.^ On the other hand, the court * refuses to * 416 select guardians for infants residing with their mother until she has indicated her own wishes.*' In this country, probate guardians of fatherless children are appointed with more exclusive reference to the mother's choice, and the next of kin are less favorably regarded. And it is not uncommon to find guiding princij^les indicated by statute for all cases. The American rule is clearly stated in 1 12 Jur. 713. And see Sponce's Case, 2 Ph. 247 ; Ball v. Ball, 2 Sim. 35. '•i Mass. Gen. Sts. c. 109, § 4 ; Clark v. Montgomery, 23 Barb. 464. 3 Poston V. Young, 7 J. J. Marsh. 501 ; Hall v. Lay, 2 Ala. 529. * Macphers. Inf. 112. 6 Cooke's Case, 6 E. L. & Eq. 47. 6 Lockwood V. Fenton, 17 E. L. & Eq. 90 ; In re Thomas, 21 E. L. & Eq. 624. As to other relatives, see Macphers. Inf. 112. [445] *416 GUARDIAN AND WARD. a recent New Jersey case: namely, that the mother, and, after the mother, the next of kin, of an infant under fourteen is entitled to preference, and that such claim cannot be disre- garded unless for some satisfactory reason.^ It is further stated, in this case, that a greater latitude is allowed to the court, as between relatives having no legal claim to the services of the child and the natural guardian ; and reasons which might be deemed insufficient to bar the mother's rights might decide as between other relations.^ The leading consideration for the court should be the inter- est and welfare of the child ; and this, which becomes almost the only rule of choice between distant kindred, may control even the selection of the father himself.^ Hence, in a case where children had been left with their grandparents for many years with the consent of the father, who was a widower and a seafaring man, guardianship Avas refused to their uncle, though he had been designated by the father on his death- bed.^ If the child is fatherless, and the mother's manner of life would be likely to exercise an unfavorable influence, she will not be appointed, nor wiU her wishes have much weight.^ Nor is the appointment of an executor or administrator desir- able, if a conflict of interests is thereby created.^ Nor * 417 the selection of a * stranger, when the next of kin can be had, unless the parent expressly desires it.' Nor of one who holds adverse religious opinions, though there is at this day far more toleration than formerly on this point, and perhaps more in the United States than in Great Britain.^ 1 Albert v. Perry, 1 McCart. 540. And see Read v. Drake, 1 Green Ch. 78 ; Allen V. Peete, 25 j\Iiss. 29 ; People v. Wilcox, 22 Barb. 178 ; Ramsay v. Ram- say, 20 Wis. 507 ; Leavel v. Bettis, 3 Bush, 74 ; Lord v. Hough, 37 Cal. 657. There may be a probate guardian appointed over a child against the wishes of a man and wife who have agreed in writing with the mother to take care of the child under certain stipulations. Gloucester v. Page, 105 Mass. 231. 2 Albert v. Perry, 1 McCart. 540. 3 Bennett v. Byrne, 2 Barb. Ch. 216 ; Compton v. Compton, 2 Gill, 241. 4 Foster v. Mott, 3 Bradf 409. » Albert i-. Perry, 1 McCart. 540. 6 Crutchfield's Case, 3 Yerg. 336 ; Isaacs i'. Taylor, 3 Dana, 600 ; Massingale V. Tate, 4 Hayw. 30; Parker v. Lincoln, 12 Mass. 17. 7 See Sullivans' Case, 1 Moll. 225 ; Morehouse v. Cooke, Hopk. 226 ; Lady Teynham t-. Lennard, cited 2 Atk. 315 ; Spaun v. Collins, 10 S. & M. 624. 8 Underbill v. Dennis, 9 Paige, 202; Macphers. Inf. 113 ; Ex parte Whitfield^ 2 Atk. 315 ; Voullaire v. VouUaire, 45 Mis. 602. [446] APPOINTMENT OF GUARDIANS. * 417 And the objection that a particular appointment will subject the ward's estate to extraordinary expense ought to be con- sidered.^ In general, it is the duty of the court to regard the general character of the person who applies for letters of guardianship ; the influence he is likely to exert, and, if the estate be difficult to manage, his business qualifications. On the other hand, no fanciful reasons should be allowed to determine the selection of the court between distant relations. The circumstance that the infant inherited the principal part of his property through one line of the family is not to prej- udice his next of kin in the other.^ But the fact that he has always been in the charge of his relatives on one side is entitled to weight.^ If children are already in a good home, this is a reason why they should not be disturbed. But the mother's consent to relinquish them to a certain relative is of little avail, for it might have been extorted from her under pressure of poverty."* Although the prudent choice of a minor arrived at fourteen may be almost conclusive, as we have already seen, yet it would seem that while under that age his preferences are entitled to no consideration. The father's testament constitutes a guardian ; but when the appointment is too informal to take effect under the stat- ute, as constituting testamentary guardianship, a chancery or probate guardian must be appointed. In such case, the choice thus informally indicated carries great weight with the court.^ And * on general principle the death-bed * 418 wishes of the father are considered by the court ; so those of the mother, in States where the mother's choice is favored at all.*' Such wishes are not conclusive upon the court ; and yet they may sometimes be sufficient to turn the scales. As concerns the right of a married woman to be appointed » Bennett v. Byrne, 2 Barb. Ch. 216. '^ Underhill v. Dennis, 9 Paige, 202 ; Albert v. Perry, 1 McCart. 540. 3 Albert v. Perry, 1 McCart. 540. < lb. 5 Hall V. Storer, 1 Yo. & C. 556. 6 Knott V. Cottee, 2 Ph. 102; Kaye's Case, L. R. 1 Ch. 087 ; Lady Tcynham V. Lennard, 4 Bro. P. C. 302 ; s. c. cited 2 Atk. 315 ; Bennett v. Byrne, 2 Barb. Ch. 216 ; Cozine v. Home, 1 Bradf. 143 ; Watson v. Warnock, 31 Geo. 716 ; In re Turner, 4 C. E. Green, 433. [447] * 418 GUARDIAN AND WARD. guardian, there is doubt and uncertainty. The dicta are apt to go one way and the decisions another ; doubtless out of judicial deference to the sex. Some hold that married women are at common law capable of becoming guardians ; but they draw their conclusions rather from the analogies of adminis- tration, than from positive authority in their favor. When it is considered that chancery and probate guardians are a modern creation, the ancient cases, from such species of guardianshiiD as are now extinct, are hardly worth looking after. It is true there are several cases which sustain the acts of married women while acting as guardians, or rather quasi guardians ; at the same time clear precedents for their actual appointment are wanting.^ It is lately held in the English chancery court, that, while a married woman may be co-guar- dian with a man, her sole appointment is improper.^ In spite of the liberal tendency of the age, we conclude that while such guardianship would not be deemed absolutely void, and is in fact sometimes sanctioned without investigation, public policy is decidedly against the appointment. Not the least important objection is the inability of married women to fur- nish proper recognizance, and to manage trust property with- out constantly encountering legal obstacles, all the more troublesome from the present uncertainty of the law of hus- band and wife. Hence, the English rule has been on the marriage of a female guardian to choose another in her stead, on the ground that she is no longer sui juris, and has become liable to the control of her husband ; while she is said to be still at liberty to go before the master to propose herself as her own successor.^ * 419 * Persons residing out of the jurisdiction will not usually be appointed guardians, although one who was out of the State might yet control from a distance ; for, it is 1 Wallis V. Campbell, 13 Ves. 517. This was the case of an illegitimate child As cited in Macphers. Inf. Ill, it might be considered authority for the appoint ment of married women as guardians. 2 In re Kaje, L. R. 1 Ch. 387. See Macphers. Inf. Ill ; Anon., 8 Sim. 846 Gomall's Case, 1 Beav. 847. See further, Jarrett v. State, 5 Gill & Johns. 27 Palmer v. Oakley, 2 Doug. 433 ; Farrer v. Clark, 29 Miss. 195 ; HoUey i; Chamberlain, 1 Redf. 333 ; Kettletas v. Gardner, 1 Paige, 488 ; Ex parte Max- well, 19 Ind. 88. [448] APPOINTMENT OF GUARDIANS. * 419 said, there must be some one answerable to the covirt.^ But if the sureties on the guardian's bond reside within the juris- diction and are pecuniarily responsible, is not some one answerable to the court ? The cases, however, are rare where such an appointment would be advantageous to the ward for business reasons ; and hence, others are usually chosen, both in chancery and probate. In some of the United States, the appointment of non-residents is prohibited by statute ; and even without such prohibition the court is justified in with- holding letters of guardianship at discretion, where the peti- tioner is beyond the reach of State process.^ But the person selected need not reside within the urisdiction of the county court making the appointment. Where infants are domiciled abroad, some one at home will be appointed, if a guardian is required, even though the father wishes it other- wise.^ Exceptions to this rule have been made in strong cases, and a non-resident guardian appointed.* Third. The usual practice in chancery is for the court, as soon as the petition is presented, to make an order for a refer- ence to a master to approve of a proper person for the guar- dianship. For this purpose, the master is attended by all proper parties ; and, after a full hearing, he makes his report, in which he mentions the infant's age and fortune, the evi- dence and legal grounds on which his approval of the guar- dian is based, and the maintenance proper for the child. The Vice-Chancellor confirms or varies the report at his discre- tion, and then makes the appointment. From his decision appeal lies to the full court.^ * The guardian thus appointed, if guardian of the * 420 person and estate, is required to enter into recogni- zance, with sufficient sureties, to account regularly or when- ever called upon, by the court. But, according to the mod- 1 Logan V. Fairlee, Jacob, 193. 2 Finney v. State, 9 Mis. 227. Tliere is no such prohibition in Maine. Berry v. Johnson, 53 Me. 401. 3 Stephens v. James, 1 M. & K. 627 ; Lethem v. Hall, 7 Sim. 141. ♦ Daniel v. Newton, 8 Eeav. 485 ; In re Thomas, 21 E. L. & Eq. 524. 5 Macphers. Inf. lOG, 107, and cases cited; 2 Kent Com. 227. 29 [ 449 ] *420 GUAEDIAN AND WARD. ern English practice, guardians of the person and not of the -estate are exempted from tliis requirement.^ In some cases, guardians are appointed b}' the court with- out reference to a master. Thus, where the father applies, or the infant above fourteen makes a selection, the court acts without reference, out of regard for their special privilege .^ And where the property of the infant is very small, the same favor has been granted, in order to save legal expense to the estate.^ The child should usually be present at the hearing ; but, in a recent Irish case, the court dispensed with the re- quirement, on evidence that the child was less than a month old and of delicate health.* Our American practice in the appointment of probate guar- dians is usually more simple. Petition is presented by the person desiring the appointment, whereupon a citation is issued, for all parties interested to appear on a certain court day. The judge, upon the day specified, after a summary hearing, appoints the guardian, and issues letters of guardian- ship upon filing bond with proper security. Appeal may be taken within a limited time by any person aggrieved, and the tribunal of last resort then hears the parties, determines the choice, and makes a final decree, — to which the lower court conforms and issues letters of guardianship accordingly. The infant, if under fourteen, is rarely produced in court, nor does the judge make an order of reference.^ Fourth. The appointment of a chancery guardian is of itself an act exercised by the court of highest author- *421 ity, in such matters. * The appointment cannot be impeached elsewhere, nor set aside by a common-law tribunal. The court which creates the guardian superintends 1 Macpliers. Inf. 107, 108 ; 2 Kent Com. 227. 2 Supra, pp. 409, 415 ; Macphers. Inf. 78, 109. 3 Bond, Ex parte, 11 Jur. 114. 4 Stutely V. Harrison, 1 Irecl. Eq. 256; 13 Jur. 800. And see Benison v. Wors- ley, 15 E. L. & Eq. 317. s For practice in particular States, see local statutes; also Smith's (Mass.) Prob. Practice; Comst. Dig. ; Reese (Geo.) Manual; Watson v. Warnock, 31 Geo. 716. Next of kin may appeal. Taflfy. Hosmer, 14 Mich. 249. [450] APPOINTMENT OF GUARDIANS. *421 his acts and removes him if necessary. Such is the nature of chancery jurisdiction wherever it exists.^ But the effect of appointments made by probate authority is not the same. In general, the same principles apply as in grants of adminis- tration ; probate jurisdiction being much the same whether over the estates of deceased persons or of infants. For fraud or excess of jurisdiction, letters of probate guardianship may be attacked collaterally ; not otherwise. And a person sued in the common-law courts cannot defend on the ground that the guardian is unsuitable for his trust. The letters of guar- dianship sufficiently disprove it. They are the guardian's credentials of authority everywhere, and, if improperly issued, should be revoked by the court which can issue them.^ The decree of the court appointing a guardian is prima facie evidence of the ward's disability ; ^ and is even held conclusive in some cases. It would be unreasonable to com- pel the guardian of an insane person or spendthrift to furnish proof of his ward's condition in every collateral suit on his behalf, and to encounter new investigations of facts already established, concerning which men's minds greatly differ. But the prima facie evidence of infancy is generally simple and easily obtained. The authority of his guardian turns upon a simple question of fact : the date of birth. And while we apprehend that the recitals contained in letters of guardianship afford ^:>rma facie proof on this point, in all contests involving the guardian's authority, the pre- sumption * thus raised must be very slight, since it is * 422 common to issue letters of probate guardianship upon the mere allegation of infancy in the petition and without special proof.* 1 Macphers. Inf. 119. 2 Speight V. Knight, 11 Ala. 461 ; Kimball v. Fisk, 39 N. H. 110 ; Mathews f. Wade, 2 W. Va. 464 ; Warner v. Wilson, 4 Cal. 310. As to the effect of defec- tive notice in probate appointments, see Davison v. Johonnot, 7 Met. 388 ; Breed V. Pratt, 18 Pick. 115; Brigham v. Boston, &c., R. R. Co., 102 Mass. 14 ; Cleve- land V. Hopkins, 2 Aik. 394; Redman v. Chance, 32 Md. 42; Chase v. Hath- away, 14 Mass. 222; People v. Wilcox, 22 Barb. 178; Palmer v. Oakley, 2 Doug. 433; Sears v. Terry, 26 Conn. 273; Gronfier v. Puymirol, 19 Cal. 629. As to other informalities, see State v. Hyde, 29 Conn. 564 ; Lee v. Ice, 22 Ind. 384. 3 White v. Palmer, 4 Mass. 147. * Leonard v. Leonard, 14 Pick. 280. See 2 Greenl. Evid. §§ 363-368. [451] * 422 GUARDIAN AND WARD. One who has been appointed guardian and acted as such, cannot deny the jurisdiction of the court which appointed him in a collateral suit.^ If he ascertains that his appoint- ment was without jurisdiction, he should surrender his letters at once and cease to act. The principles of the civil law, as later adopted in Holland, France, and Spain, with reference to the jurisdiction and method of appointing guardians, differ not greatly from ours. The jurisdiction competent to make the selection was that of the domicile of the minor, or in which his property was situ- ated. Under the French code, a family council is called together at the instance of the parties interested, and nom- inates a suitable person or persons to take the trust, where the children are orphans and not otherwise provided for ; and these persons, when they are approved by the judge, take an oath well and faithfully to discharge their trust and com- plete the necessary qualifications. In Louisiana, the selection is made by the family council in the same manner. ^ 1 Thurston v. Holbrook's Estate, 31 Vt. 354 ; Hines v. Mullius, 25 Geo. 696 ; Fox V. Minor, 32 Cal. 111. ■i 3 Burge Col. & For. Laws, 938-943 ; 2 Kent Com. 231. [452] TERMINATION OF GUAEDIAN'S AUTHORITY. * 423 * CHAPTER III. *423 TERMINATION OF THE GUARDIAN'S AUTHORITY. Guardianship lasts imti] the end of the period for which it was instituted. But it may be sooner terminated by the death or marriage of the ward, or by the death, resignation, removal, or supersedure of the guardian himself ; or, if the guardian be a female, by her marriage. These topics will be considered in order. As the relation of guardian and ward usually exists for merely temporary purposes, it is plain that when those pur- poses are fulfilled, the trust must terminate. The object of guardianship, in the case of infants, is fulfilled when the in- fant becomes of age, for he is then free and competent under the law to transact his own business and control his own per- son. No guardian therefore, of an infant, whether a socage, natural, testamentary, chancery, or probate guardian, can act after the ward is twenty-one years old.i But the natural limitation of the guardian's authority may be even sooner, if derived from testamentary appointment. For the testator may designate a shorter period or some par- ticular event which shall determine the relation. Thus, if he appoints his wife to be guardian until her remarriage, her trust terminates on marrying again.^ And if no successor was indicated in the will, a chancery or probate appoifttment must supply the vacancy.^ *The legal authority of guardians in socage also * 424 terminated, strictly speaking, when the infant became 1 1 Bl. Com. 461, 462, Harg. n. ; 2 Kent Com. 221-227. ■' Selby !■. Selby, 2 Eq. Ca. Ab. 488; Holmes i-. Field, 12 111. 424 ; Corrigan V. Kiernan, 1 Bradf. 208. » Macphers. luf. 104, and cafes cited ; supra, pp. 307, 408, 41f!. [453] * 424 GUARDIAN AND WARD. fourteen.^ So did that of guardians for nurture, as distin- guished from those by nature .^ This was because the ward was recognized as partially qualified to act for himself, having passed through the period of nurture. He was then allowed to elect a guardian.^ Still the guardianship continued effect- ual during minority in both cases, unless a new choice was made by the ward.^ But no guardians in socage, for nurture, testamentary, or by judicial appointment were ever rendered devoid of power, by the mere fact that the infant had passed the period of nurture. An anomalous exception is found in Ohio, where it has been held that probate guardianship wholly ceases when the ward reaches twelve, if a female, or fourteen, if a male, and that a new appointment must then be made.^ This rule is, however, one of statutory construc- tion. Ko more precise limit can be assigned to the authority of guardians over insane persons and spendthrifts, than that of the ward's necessities. When he becomes restored to reason or is otherwise fit to control his own person and estate, this guardianship ceases ; for the purposes of the trust are felt no longer. But a period so difficult to fix should be judicially determined ; for which cause a formal discharge from guar- dianship is to be sought and obtained, and meantime the guardian's authorit}^ will continue.^ Death of the ward necessarily terminates guardianship. And after the ward's death the guardian's only duty * 425 is to settle up his * accounts and pay the balance in his hands to the ward's personal representatives, where- upon his trust is completely fulfilled. The lawful marriage of any ward, whether male or female, 1 1 Bl. Com. 461, Harg. n. ; 2 Kent Cora. 222. -' lb. 8 1 Bl. Com. 462, Harg. n. ; and see ch. 1, supra. * Ilex V. Pierson, Andr. 313 ; Mendes i'. Mendes, 3 Atk. 624. And see Mae- phers. Inf. 41, 65 ; Byrne v. Van Hoesen, 5 .Johns. 66. s Perry v. Brainard, 11 Ohio, 442; Maxsom v. Sawyer, 12 Ohio, 195. See Dibble v. Dibble, 8 Ind. 307 ; Matter of Dyer, 5 Paige, 534. e Dyce Sombre's Case, 1 Phil. Ch. 437 ; Hovey v. Harmon, 49 Me. 269 ; Wendell's Case, 1 Johns. Ch. 600; Kimball v. Fiske, 39 N. H. 110; Chase v. Hathaway, 14 Mass. 222. [454] TERMINATION OF GUARDIAN'S AUTHORITY. * 425 must necessarily affect the rights of the guardian. So far as the ward's person is concerned, there can be no question that the guardianship ends. jNIarriage is paramount to all other relations, and its proper continuance being inconsistent with guardianship of the person, the latter yields to it, whatever may be the sex of the ward. But as to the estate the rule, in view of late married women's statutes, is not so clear. If, however, a male ward marries a female, whether she be minor or adult, his guardian retains power over his estate, as before, until he becomes of age.-^ Hence arises a difficulty where a male and female ward marry, both being minors, and having estates in the hands of their respective guardians. Does the husband, though under age, take all the rights of an adult husband ? Or does the wife's estate remain in keeping of her guardian until the husband is old enough to control it in person ? The better opinion is that it goes to the husband, whatever his age. The inevitable consequence is that the husband's guardian must take it from the wife's guardian, and hold both estates during minority. This seems an awkward arrangement, but it is nevertheless the lawful one. More troublesome would be a case under the recent statutes in this country relative to married women, concerning Avhich we do not find a judicial decision. But it seems the technical rule applies, as before, to the detriment of the female ward's interests. It might be well to declare by statute that the wife's guardian shall con- tinue to manage her estate during her minority .^ The marriage of the female ward, it is said, does not, ipso facto^ determine the authority of her guardian over her estate. * Hence an order of court, transferring the * 426 custody of the property to the husband, is first neces- sary ; to which order the husband will be entitled upon mo- tion. Such is the rule declared in Kew York.^ But while in 1 Reeve Dom. Rel. 328; 2 Kent Com. 22G ; Bac. Abr. Guardian (E) ; Eyre V. Countess of Shaftesbury, 2 P. Wms. 103 ; Mendes v. Meiules, 3 Atk. Cl'J ; ib. 1 Ves. 89 ; Jones v. Ward, 10 Yerp. IGO. - See Reeve Dom. Rel. S28 ; 2 Kent Com. 22G; Anon., 8 Sim. S-IG. 3 Wliitaker's Case, 4 Jobns. Ch. 376. But see contra, Jones i'. Ward, 10 Yerg. IGO ; Nicholson i'. Wilborn, 13 Geo. 4G7 ; Anon., 8 Sim. 3JG ; Armstrong v. Walkup, 12 Gratt. 608. [455] * 426 GUARDIAN AND WARD. England the Court of Chancery never apj^oints a guardian for a female infant after marriage, neither does it discharge an order for a guardian because of marriage ; because, as Mr. Macpherson thinks, the marriage of a female, if valid, super- sedes guardianship, of its own force. ^ Probate wards in this country are frequently married, and their guardians settle their accounts without order of court or revocation of letters, on the supposition that the marriage ipso facto puts an end to their authority. In some recent cases of alleged trespass on a female infant's lands, it has been ruled that the adult hus- band succeeds to the j)lace of her guardian, all other guar- dianship ceasing at her marriage.^. And it is held that a female infant's guardian is not responsible to her for money which was hers, and which he has paid over to her adult husband, in good faith, without any notice or presumption of her non-concurrence.^ Guardianship is terminated by the .death of the guardian. But the ward does not thereby necessarily become free, for a successor in the trust continues to control him. The execu- tor or administrator of the guardian, as such, has no author- ity ; for guardianship is a personal trust and not transmissible. But he should close the accounts of the deceased guardian in court and pass the balance over to the successor. This suc- cessor is the person next indicated in the will appointing testamentary guardians, or the survivor of joint guardians, or some one appointed in chancery or probate to fill the vacancy, as the case may be.^ The office of a guardian was regarded as something so honorable at the common law that it could not be easily refused, much less resigned. Natural guardians, of neces- sity, could not resign. We have seen, in another connection, how far the natural guardian may practically surrender his children's custody, by allowing others to adopt them, by placing them in a charitable institution, and the like ; which 1 Macphers. Inf. 113, citing Roach v. Garvan, 1 Ves. 160 ; 8 Sim. 336. 'i Porch V. Fries, 3 C. E. Green, 204 ; Bartlett v. Cowles, 15 Gray, 445. 3 Beazley v. Harris, 1 Bush, 533. * Co. Litt. 89; Bac. Abr. Guardian (E). [ 456 ] TERMINATION OF GUARDIAN'S AUTHORITY. * 426 is the only sense in which this guardianship-may be considered as voluntarily transferred. So guardians in socage, being designated * b}' the law, could not in strictness * 427 resign ; if they could shift their authority at all, it must have been by assignment. There is reason to believe that, before the statute of Marlbridge,^ they could assign, but only to the extent of placing the ward's body in custody of another. In later times, no assignment whatever has been permitted. For, as Lord Commissioner Gilbert observed, guardianship in socage is an interest, not of profit, but of honor, committed to the next of kin, inherent in the blood ; and therefore not assignable.^ The resignation of a testamentary guardian is not, as a rule, permitted. In 1752, the guardians of the young Earl of Spencer, who was then in his eighteenth j'ear, petitioned the Court of Chancery that they might be discharged from their trust, as he was then going abroad on his travels, and would not be under their care. Lord Hardwicke (as the reporter says) refused it with some warmth, as a thing which had never been done at the request of the guardians themselves ; and added that, if they would not continue to act in the trust, as they had accepted it, he should compel them. But afterwards, at the importunity of counsel, finding that the mother and the infant also acceded to the request, he yielded so far as to allow a petition to be filed on behalf of the infant, upon which he made an order that the care and direction of the infant's education and person should be committed to two near relatives until further order, and that the allowance for his maintenance and education should be j)aid to them. But in doing so the Lord Chancellor declared that while the spe- cial circumstances of this case justified his action, he would not in general comply with such petitions, nor should this case be drawn into precedent. The court, he added, must take care of the infant, even though it did not punish the guardian for not doing so.^ * 1 52 Ilcn. 3, c. 17. '^ Gilb. Eq. Rep. 175. For full discussion, see Macphers. Inf. 25-27 ; Co. Litt. 88 h, Harg. n. 13, and authorities cited. '^ Spencer v. Earl of Chesterfield, Ainbl. 14G. [ 457 ] * 4:27 GUARDIAN AND WARD. Though this was a case of testamentary giiardian- * 428 ship, we * presume the rule to be equally strict, or nearly so, in case of a chancery guardian. In either instance the court can make an order, as deemed best for the infant's interests. There need be no summary removal. Chancellor Kent, in Ex parte Crumb, claimed that chancery could doubtless discharge or charge a guardian, even if ap- pointed by a surrogate ; but that in the case of a testamentary guardian there should be very special reasons for interfer- ence. He refused here, however, to make any change, there being no special cause shown.^ It is now frequently provided by statute that probate guar- dians and other trust officers may, in the discretion of the court, be allowed to resign. But in absence of such legis- lation it would appear that no such guardian can resign as a matter of right ; nor can the probate court legally accept his resignation and appoint a successor. Yet it is held in Illinois that, under a statute which permits the judge " to remove guardians for good and sufficient cause," he may con- sider resionation a sufficient cause, and thereupon discharge the guardian.2 There is something harsh and offensive in the removal of a guardian from office. Moreover, numerous un- foreseen emergencies may arise, so as to render the contin- uance of the trust improper ; as if the guardian should become a confirmed invalid, or make himself obnoxious to the ward and his relations, or display a want of prudence in managing the estate not inconsistent with good intentions nor suffi- ciently gross to justify a court in removing him. He might be fully aware of the advantage of a change to all parties con- cerned, and might desire to be relieved, provided he could withdraw with honor, and without submitting to a humiliat- ing investigation of petty and insufficient grounds of complaint. This opportunity is afforded in allowing him to resign. And further, as one has observed of testamentary appointees, " it can never be for the infant's benefit to continue him in the care of a negligent or reluctant guardian." ^ 1 Ex parte Crumb, 2 Johns. Ch. 439. See 2 Kent Cora. 227. 2 Young I'. Lorain, 11 111. 62-4. See Pepper v. Stone, 10 Vt. 427. 'i Macphers. Inf. 128, commenting upon Spencer v. Earl of Chesterfield, supra. [458] TERMINATION OF GUARDIAN'S AUTHORITY. ♦ -429 * The chancery court ma}' undoubtedly remove all * 429 guardians of its own appointment and substitute others at discretion for proper cause. This rule extends still fur- ther: for, according to American authority, chancery may remove all guardians, whether appointed by the court itself, by probate tribunals, by testament, or even by express act of the legislature, whenever the guardian abuses his trust or the interests of the ward require it.^ This statement is some- what too sweeping, so far as the English courts are con- cerned. So, too, probate tribunals are authorized in most if not all of the States to remove guardians of their own ap- pointment on good and sufficient cause. And as two persons, or sets of persons, cannot at the same time hold the same trust, it follows that one guardian must be removed, or a vacancy otherwise created, before the court can make a new appointment. This principle, apparently simple, has sometimes been overlooked ; when, for instance, a court has issued new letters without revoking the old, or seeks to supersede a testamentary by a probate guardian. The appointment of a new guardian does not of itself termi- nate the authority of one previously chosen. It is an act without jurisdiction, and void. But natural guardians need not be formally removed, nor guardians in socage. The rule applies only to guardians testamentary and guardians by judicial appointment, who hold by a higher authority than either of these. ^ If a guardian does not behave to the satisfaction of the Court of Chancery, orders regulating his conduct are fre- quently made upon him ; and if any such steps be taken as to induce suspicion that the infant will suffer by the conduct of the guardians, the court will interpose.^ This is the Eng- lish rule as to guardians in general. But in this country, 1 Cowls V. Cowls, 3 Gilm. 435. See Ex parte Crumb, 2 Johns. Ch. 439 ; Dis- brow V. Henshaw, 8 Cow. 349. 2 Bledsoe i'. Britt, 6 Yerg. 458 ; Grant v. Whitaker, 1 Murph. 231 ; Robinson V. Zollinger, 9 Watts, 169 ; Fay v. Hurd, 8 Pick. 528 ; Thomas v. Burrus, 23 Miss. 550 ; 2 Ch. Cas. 237 ; Morgan i^. Dillon, 9 Mod. 141 ; Copp v. Copp, 20 N. H. 284. 3 Roach I'. Garvan, 1 Yes. IGO ; Duke of Beaufort v. Berty, 1 P. Wnis. 705. [459] * 429 GUAHDIAX AND WARD. * 430 probate guardianship * is usually determined for mis- conduct by a summary removal. There can be no removal of a probate guardian without cause shown.^ Courts of chancery are equally bound to ob- serve this principle ; but their discretion is absolute. A mere stranger 'cannot apply to have a guardian removed ; it must be a i)arty in interest.^ Nor can one who has been properly removed, though the mother herself, claim any right of recommending a successor.-^ Among the causes which have been deemed sufficient for the removal of a guardian are these : Appointment to the trust without proper notice to other parties interested.* Gross and confirmed habits of intoxication. ^ Any breach of official duties amounting to misconduct.^ Abandonment of the trust.'' Ignorance or imprudence on the part of the guardian, whereby the ward's interests suffer.^ But not insolvency alone ; though it is otherwise where one has been adjudged a bankrupt, or is guilty of fraud .^ Nor is intermeddling with the estate before qualification as guardian a ground for removal, if in good faith and by advice of counsel. ^'^ In Indiana, as the statute provides, one can be displaced for unfaithful perform- ance of the trust or insufficient seeurity.^^ Guardians ma}- in some States be removed wherever it will be for the ward's interest. ^^ And it aj^pears that there may be a combination of circumstances to justify the removal. ^^ " Improper con- duct " in respect of the care of the property or of the ward's person is sometimes the statute rule.^'^ And in Massachusetts 1 Whitney v. Whitney, 7 S. & M. 740. 2-Colton V. Goodson, 1 How. (Miss.) 295. 3 Hamilton v. Moore, 32 Miss. 205. * Morehouse v. Cooke, Hopk. 226 ; Ramsay v. Ramsay, 20 Wis. 507. 5 Kettletas v. Gardner, 1 Paige Ch. 488. 6 Barnes v. Powers, 12 Ind. 341 ; Sweet v. Sweet, Speers Eq. 309 ; 'Neil's Case, 1 Tuck. (N. Y. Surr.) 34. ^ Lefever v. Lefever, 6 Md. 472. « Nicholson's Appeal, 20 Penn. St. 50. 9 Chew's Estate, 4 Md. Ch. 60; Cooper's Case, 2 Paige Ch. 34. See Lord Thurlow, in Smith v. Bate, 2 Dick. 631. l" Stone v. Dorrett, 18 Tex. 700. 11 Morgan v. Anderson, 5 Blackf. 503 ; West v. Forsytlie, 34 Ind. 418. 1-' E.r parte Crutchfield, 3 Yerg. 336. " Windsor v. McAtee, 2 Met. (Ky.) 430. » Slattery v. Smiley, 25 Md. 389. [ 460 ] TERMINATION OF GUARDIAN'S AUTHORITY. * 430 such conduct of a guardian as tends to alienate his infant ward's affections from the mother who is a person of good character, will justify his removal, notwithstanding the mother may have remarried. ^ * Religious opinions were formerly made a test of the * 431 guardian's capacity to act. Such conflicts seldom arise at the present day. It was held in a Pennsylvania case, a few years ago, that difference of belief on religious subjects con- stitutes no cause for a guardian's removal, if no harsh or unfair means have been used to erase the impressions left by the parents qn the child's mind.^ For the same reason that non-residents are held incompetent for appointment, guardians must surrender their authority when they move out of the jurisdiction, or the court will take it from them. This rule is not uniform, however, in all the States. Under the statutes in Indiana, Alabama, and some other States, removal from the State constitutes per se a ground for displacement from office.^ But since, as we have seen, non-residents ma}^ sometimes be appointed guardians, the more reasonable rule is to make them liable to displace- ment whenever, as non-residents, they could not have been appointed in the first instance.^ As in making appointments, the court is allowed a lilieral discretion over removals, and its decision will not be reversed on appeal unless palpable injustice has been done.^ But the guardian is entitled to notice before removal, that he may appear in defence ; and, if removed without such notice, unless he has waived it by his voluntary appearance in court, he has good ground for appeal ; and it is doubtful whether a new appointment under such circumstances has any val- idity whatever.^ The authorities are clear in requiring 1 Perkins v. Finnegan, lOo Mass. 501. 2 Nicholson's Appeal, 20 Penn. St. 50 ; supra, p. 417. 3 Nettleton v. State, 13 Ind. 159 ; Cockrell v. Cockrell, 30 Ala. 673. * See Speight v. Knight, 11 Ala. 4G1 ; also supra, p. 419 ; Succession of Bookter, 18 La. Ann. 157. 5 Nicholson's Appeal, 20 Penn. St. 50 ; Isaacs v. Taylor, 3 Dana, 600 ; Young V. Young, 5 Ind. 513. 8 Hart V. Gray, 3 Sumn. 339; Gwin v. Vanzant, 7 Yerg. 143 ; Myers v. Pear- soil, 17 Ind. 405 ; Croft v. Terrell, 15 Ala. 652. [ 461 ] * 431 GUARDIAN AND TYARD. * 432 notice * wherever proceedings for removal involve the guardian's personal character ; but where the dis- charge is sought on other grounds, and the ward's rights are deemed of paramount importance, as when one under guar- dianship for insanity is restored to reason, or a ward arrived at fourteen wishes to exercise the privilege of nominating a successor, removals without notice are sometimes sustained ; ^ still the better opinion is in favor of notice in all cases .^ It is held in Vermont that when a guardian who has been removed from office appeals, and in the mean time another has been appointed in his place and given bonds, the powers of the old guardian cease, and the new one takes control, until he is restored.^ We have seen that chancery courts in this country claim the right of removing testamentary guardians. In England, the rule is not laid down so strongly. Testamentary guar- dians are not removed but superseded in their functions : a refinement adopted, it is said, out of deference to the act of parliament.^ In this sense are to be understood certain ex- pressions of Lord Hardwicke and Lord Redesdale, which would seem to extend the authority of the court to actual removal from office.^ Lord Nottingham, in Foster v. Denny ^ said that he could not remove a guardian constituted by act of parliament.'^ This is still the doctrine of the English chancery ; but it exercises full jurisdiction in ordering in- fants to be made wards of court, with suitable directions for their maintenance and education ; and it will restrain the testamentary guardian from interference with the person and estate of wards thus taken under its protection." * 433 * By the common law, certain persons, as idiots, lunatics, deaf and dumb persons, persons under out- 1 Hovey v. Harmon, 49 Me. 269 ; supra, ch. 2. 2 Montgomery v. Smith, 3 Dana. 599 ; Copp v. Copp, 20 N. H. 284 ; Lee v. Ice, 22 Ind. 384. But see Cooke v. Beale, 11 Ired. 36. 3 State V. McKown, 21 Vt. 503. * Macpliers. Inf. 128. 5 Lord Hardwicke, in Roach r. Garvan, 1 Ves. 160 ; Lord Redesdale, in O'Keefe v. Casey, 1 Sch. & Lef. 106. 6 2 Ch. Cas. 237. 7 Smith V. Bate, 2 Dick. 631 ; Ingham v. Bickerdike, 6 Madd. 275. See also M'Cullochs, In re, 1 Dru. 276 ; 12 Jur. 100. [ 462 ] TERMINATION OF GUARDIAN'S AUTHORITY. * 433 lawry or attainder, and le^^ers removed by writ of leprosy, were passed over in the guardianship. And where a guar- dian became incapable of acting, the office devolved upon the « next person to whom the inheritance could not descend. ^ Such guardians do not ajopear to have been removed from office. But there can be little doubt that the insanity of a pro- bate or chancery guardian would be good cause for his removal or supersedure ; and a final settlement of his guardianship ac- counts would properly be required from his own guardian.^ The marriage of a female guardian may terminate her authority ; though that of a male guardian never does. The old rule of the common law appears to have been, that when a female guardian in socage married, her husband became guardian in right of his wife ; but that on her death guar- dianship ceased on his part, and went to the infant's next relation.3 Testamentary guardianship in England seems to be left to the operation of the will in such cases : chancery refusing to interfere with the testator's own directions.^ But it is customary for the father to designate successors in the event of marriage. What has already been said on the sub- ject of appointing married women guardians applies, likewise, in this connection.5 Certainly, if marriage does not absolutely put an end to the guardian's authority, it has the common- law effect of joining her husband in the trust ; and yet accord- ing to some American statutes the fact of marriage would only render her liable to removal. In Louisiana, the mother, by the advice of a family meeting, may be retained in the tutor- ship of her minor children, notwithstanding her remarriage.^ There are some other cases in which it is said that a new guardian may be appointed, as though guardianship had 1 Co. Litt. 88, 89 ; Macphers. Inf. 24, 25. '^ ^Modawell v. Holmes, 40 Ala. 391. 3 Co. Litt. 89 a ; Bac. Abr. Guardian and Ward (E). See 7 Vt. 872. * Macpliers. Inf. 129 ; Morgan v. Dillon, 9 Mod. 135 ; Dillon v. Lady Mount Casliell, 4 Bro. P. C. 306. See Corbet v. Tottenham, 1 Ball & B. 59. 5 See suprn, p. 418 ; Martin v. Foster, 38 Ala. 688 ; Elgin's Case, 1 Tuck. (N. Y. Surr.) 97 ; Leavel v. Bettis, 3 Bush, 74. ' Gaudet v. Gaudet, 14 La. Ann. 112. [463] *433 GUARDIAN AND WARD. already determined. Thus, where a testamentary guardian has not acted, and declines to act, chancery may appoint a , successor.^ So in other cases where the guardian renounces his appointment.^ Filing a bond, with proper security, * 434 is * sometimes regarded as the condition precedent to a probate appointment, and it is thought that letters need not be revoked in such a case. But this is by no means a settled rule.^ Outlawry and attainder of treason — or what is known as civil death — did not put an end to guardianship in socage ; because, it was said the guardian had nothing to his own use, but to the use of the heir.^ The same principle doubtless applies to other guardians. But a guardian might be properly removed on such grounds. 1 Ex parte Champney, 1 Dick. 350; O'Keefe v. Casey, 1 Sch. & Lef. 106. 2 McAlister v. Olmstead, 1 Humph. 210 ; Lefever v. Lefever, 6 Md. 472. 3 Russell V. Coffin, 8 Pick. 143 ; Fay v. Hurd, ib. 528 ; Barns v. Branch, 3 McCord, 19 ; Clarke v. Darnell, 8 Gill & Jolms. 111. See West v. Forsythe, 34 Ind. 418. i Co. Litt. 88 b ; Macphers. Inf. 25. [4G4] NATURE OF GUARDIAN'S OFFICE. ' * 435 * CHAPTER IV. *435 NATURE OF THE GUARDIAN'S OFFICE. The powers and duties of a guardian relate either to the person of the ward, or to the ward's estate, or to both person and estate. As guardian of the person, he is entitled to the custody of the ward ; he is bound to maintain him in a style suitable to the latter's means and condition in life ; if the ward be a minor, he superintends his education and directs him in the choice of a pursuit ; and in general, he supplies the place of a judicious parent. As guardian of the estate, he manages the ward's property, both real and personal, with faithfulness and care, changes investments whenever neces- sary, with permission of the court, pays the just debts of the ward, collects his dues, puts out his money on interest, man- ages his investments, keeps regular accounts, and is, in effect, the ward's trustee.^ Whether the guardianship be in socage, testamentary, or by chancery or probate appointment, these powers and duties are essentially the same ; although, as we have seen, socage guardianship was created with special ref- erence to the ward's real estate.^ Moreover, as will fully appear in the succeeding chapters, chancery and probate guar- dians are brought more closely under judicial control and supervision than either guardians in socage or testamentary guardians. But while guardianship of the person resembles the relation of parent and child, it is not altogether like it. The parent must support his child from his own means ; and in return the child's labor and services belono- to him. But the ffuar- dian is not bound to supply the wants of his ward, ex- cept from * the ward's own estate in his hands and the * 436 liberality of others, though it were to keep the child 1 2 Kent Com. 230-233. 2 Supra, cli. 1. 30 [ 465 ] * -iSe GUARDIAN AND WARD. from starving. On the other hand, the guardian has no more right to the labor and services of his ward than any stranger. Nor are guardians of the estate vested with an interest pre- cisely like that of trustees ; for while the latter may sue and be sued in their official capacity, suits by and against infants are brought in the name of the ward and not the guardian. ^ Guardians in socage acquired authority as guardians of the ward's estate ; and guardianship of the estate drew after it, in such case, guardianship of the person ; so that they were guardians of both person and estate .^ Testamentary guar- dians under the statute of Charles II. acquire authority through the father's devise to them, of the " custody and tu- ition" of his children; and this devise of the person carries with it as incident a devise of the estate ; so that they too (subject to statute modifications) are guardians of both per- son and estate.^ But chancery guardians are not always in- vested with such powers; for the court will make such orders as are needful in all cases. Chancery sometimes appoints a guardian of the person only, for a special and temporary pur- i^ose.* Where a suit is pending, and it becomes necessary to appoint a guardian, chancery appoints a guardian of the per- son only, the estate being under the direction of the court. But where no suit is pending, and proceedings are commenced by petition, the guardian is appointed for both person and es- tate.° Probate guardianship is subject, in great part, to local legislation ; but it may be safely asserted, as a general prin- ciple, that all probate guardians are guardians of both person and estate, and that the court cannot commit guardianship of the person to one and guardianship of the property to another.^ * 437 * The guardian is not always entitled to the custody of the infant's person ; but chancery will exercise its discretion for the benefit of the latter, as to delivering him up to the guardian or permitting him to remain elsewhere, 1 See infra, pp. 592-598. - But see Bedell v. Constable, Vaugh. 185, cited supra. 3 Stat. 12 Car. 2, e. 24, §§ 8, 9; Vaugh. 178. 4 Macpliers. Inf. 114; Ex parte Becher, 1 Bro. C. C. 556; Ex parte Wcols- combe, 1 Madd. 213. 5 Macphers. Inf. 105; 2 Kent Com. 229. 6 See Tenbrook v. M'Colm, 7 Halst. 97. [466 ] NATURE OF GUARDIAN'S OFFICE. *437 and as to the persons who are to have access to him, and the circumstances attending such access, and generally as to his education.^ And it is the policy of our legislation to leave the child's person in his parents' keeping so far as possible. But the guardian may be a "guardian of the person and estate " notwithstanding. In discussing the rights and duties of a guardian, this ques- tion next meets us at the outset : Is or is not the guardian's office substantially that of a trustee in interest ? This will be Ijest seen by examining the different kinds of guardians, as they respectively arose. Guardianship in socage arose very early at common law, and is the first in order. These guardians were considered as trustees. According to the old authorities, the guardian in socage had not a bare authorit}^, but an actual estate and interest in the land, though not to his own use.^ Hence he might elect whether to let the estate or occupy it for the ward's benefit. He was considered as entitled to the posses- sion of the ward's property, and incapable of being removed from it by any person. In other words, this guardian had the legal, but not the beneficial, interest. Not long after the statute of Charles II. chancery was called upon to determine the nature of testamentary guar- dianship. Lord Macclesfield, in the case of I)uke of Beaufort V. Berty^ stated that testamentary guardians were but trus- tees ; that the statute merely empowered the father to appoint a different person as guardian and to continue the relation beyond the age of fourteen and until the ward became twenty-one ; and that both socage and testamentary guar- dians were equally trustees. And in the important case of Eyre v. Countess of Shaftesbury,^ * this principle, * 438 though with another admitted difference as to succes- sion, was again affirmed. This general rule has received judi- cial sanction in England quite recently .° 1 Macphers. Inf. 119 ; Anon., 2 Ves. Sen. 374. 2 Co. Litt. 00 a ; Plowd. ch. 23. See next chapter. 3 1 P. Wms. 703. * 2 P. Wnis. 102. 5 Gilbert v. Schwenck, 14 M. & W. 488 ; s. c. 9 Jur. 693. [467] * 438 GUARDIAN AND WARD. Chancery guardianship, of still later origin, resembles in its nature testamentary guardianship. The same principles are constantly asserted in regard to both. In either case, the guardian has a vested interest in his ward's estate, may bring actions relative thereto, and make leases during the minority of the infant. He has in all respects the dominion pro tem- pore of the infant's estate and possesses more than a naked authority. ^ The same may be said of probate guardianship in this country, which, under statute modification, has become, if any thing, more like trusteeship than the other kinds.^ And in Thompson v. Boardman ^ the analogies of the old law have been extended to the case of a spendthrift's guardian. It is often difficult to say what in strictness is a trustee, since every trust is limited by the instrument which creates it. The powers of a guardian differ greatly from those of an executor or administrator. But so far as guardianship of the estate is concerned a guardian is in fact a trustee ; for he holds the legal estate to the benefit of another. To apply the term agent to the guardian's office seems therefore harsh and unnatural, whatever may be the ward's position.'^ Where there are two or more testamentary guardians, and one of them dies or is removed, the survivor or survivors shall continue. The very nature of the trust demands it.^ In England, it is otherwise with joint guardians by chancery appointment ; for if one dies the office determines.^ * 439 But the survivors * will be appointed without a refer- ence,''' so that after all the rule is only formal. In this country, the more reasonable doctrine prevails, as to both chancery and probate guardianship, that the survivors shall continue the trust, like co-executors, and on the same princi- ple. This was declared to be the rule as to joint chancery 1 People V. Byron, 3 Johns. Cas. 53. 2 See Truss v. Old, 6 Rand. 556 ; Isaacs v. Taylor, 3 Dana, 600 ; Alexander V. Alexander, 8 Ala. 796 ; Pepper v. Stone, 10 Vt. 427. i 1 Vt. 370. * But see dictum of Shaw, C. J., in Manson v. Felton, 13 Pick. 206. ^ See Bac Abr. Guardian (A). "^ Bradshaw v. Bradsliaw, 1 Russ. 528. •J Hall V. Jones, 2 Sim. 41. [468] I NATURE OF GUAEDIAN'S OFFICE. * 439 guardians in a leading New York ease.^ And a Vermont court applies it likewise to probate guardians.^ The statutes enacted in many of the States remove all further doubt on the subject. Of two or more persons appointed joint guardians under a will, one may qualify without the other.^ But while a joint guardian who had once declined the trust has no further right to be appointed, he may yet be selected in preference to others to fill a vacancy. Thus it has been held that where three testamentary guardians, one of whom was the mother, were named by the father in his will, and the mother became sole guardian, by the refusal of the others to act with her, they were properly selected by the court, after the mother's death, on their own application, in preference to the person nominated in her will.^ On the principle that guardians are trustees, it is held that joint guardians may sue together on account of any joint transaction founded on their relation to the ward, even after the relation ceases.^ Also that the receipt of one is the re- ceipt of all.^ Also that one can maintain trespass against the other for forcibly removing the child against his wishes ; as one of two joint trustees cannot act in defiance of the other." And where one guardian consents to his co-guardian's misap- plication of funds, he is liable.^ The fact that one joint guardian is dead will not prevent the co-guardian's prior accounts from being opened on a final settlement in court.^ Guardians, like other trustees, — * executors * 440 and administrators excepted, — may portion out the management of the property to suit their respective tastes and qualifications, while neither parts irrevocably with the 1 People V. Byron, 3 .Johns. Cas. 53. ■-' Pepper v. Stone, 10 Vt. 427. See also remarks of Chancellor Sanford, in Kirby v. Turner, Hopk. 309, as to the nature of joint guardianship. 3 Kevan v. Waller, 11 Leigli, 414. * Johnston's Case, 2 Jones & Lat. 222. * Shearman v. Akins, 4 Pick. 283. 6 Alston V. Munford, 1 Brock. 266. T Gilbert i;. Schwenck, 14 M. & W. 488. 8 Pim V. Downing, 11 S. & R. 66. See Clark's Appeal, 18 Penn. St. 175. 9 Blake v. Pegrara, 101 Mass. 592. [ 469 ] * 44:0 GUAEDIAN AND WAKD. control of the whole ; and in such case each is chargeable with no more than what he received, unless unwarrantable negligence in superintending the other's acts can be shown.^ And the discharge of one who has received no part of the estate relieves him from liability .^ On the other hand, it is presumed that the survivor of joint guardians received the whole estate in absence of proof to the contrary.^ In English practice, the Court of Chancery holds the ward's property within its grasp with a tightness unknown to Amer- ican tribunals. The regular course is to get in all the money due the infant, and to invest it in the public funds. A re- ceiver is, if necessary, appointed to facilitate collections, and generally the same person is made a permanent receiver of the ward's real estate, to collect all rents. Where there is an executor he will not be interfered with, except under strong circumstances of suspicion, but an administrator is treated with less consideration .4 Even executors who are also testa- mentary guardians, must bring their funds into court after settling up the estate of their testator.^ Chancery, thus man- aging actively the ward's property, makes its own scheme for maintenance, and allows the guardian a certain fixed income accordingly.^ Probate guardianship in this country is quite different. Schemes of maintenance are seldom heard of. Nor are re- ceivers appointed. The guardian usually collects his ward's dues, whether from the executor of the parent or others, and manages the property on liis own responsibility, with little judicial interference. He regulates at discretion the * 441 sum * proper for annual expenditure, and changes the rate when expedient. Of course, he is held account- able, on legal principles, much the same as those of the English chancery; but he seldom applies to the court for direc- tions, unless some perplexity arises, or it becomes expedient 1 Jones's Appeal, 8 Watts & S. 143. a Hocker v. Woods, 33 Penn. St. 466. 3 Graham v. Davidson, 2 Dev. & Bat. Eq. 155. * Macpliers. Inf. 268, and cases cited. 5 lb. 118 ; Blake v. Blake, 2 Sch. & Lef. 26. ^ Macphers. Inf. 213 et seq. [470] NATURE OF GUARDIAN'S OFFICE. * 4J:1 to sell real estate, or when the ward cannot be supported without breaking in upon the principal fund. The same person is frequently executor under the parent's will, and also guardian of the minor children. Hence the question will sometimes arise whether he holds the fund in the one or the other capacity. It is clear that where one is both guardian and executor, he cannot be sued in both capac- ities, nor are both sets of sureties liable.^ He is in the first instance liable as executor ; and in general, to render him Hable as guardian, there should be some distinct act of trans- fer. His plain duty is to keep the trusts distinct and not blend them. In the former case, his accounts rendered will show the transfer of the legacy or distributive share from his account as executor to his account as guardian ; and thereby his liability as guardian will become fixed.^ But in the latter case, or if no clear evidence appears elsewhere of an actual transfer, can it be presumed? The better opinion is that, after the time limited by law for the settlement of the estate has elapsed, and there is no evidence of intent to hold longer as executor, he shall be presumed a guardian ; on the princi- ple that what the law enjoins upon him to do shall be con- sidered as done.^ And certainly very slight evidence would confirm any possible doubt ; such as the division of the parent's estate among other heirs, the payment of legacies, or where he has placed some of the chattels on the ward's farm.^ But the rule may be otherwise * with joint * 442 executors ; ^ and we need hardiy add, that this doctrine applies in strictness only to personal assets which pass through administration ; since real estate, ordinarih% goes at once to the heir. Acts, too, inconsistent with the purpose of holding • Wren v. Gaydcn, 1 How. (Miss.) 3G5. 2 Alston V. Munford, 1 Brock. 266 ; Burton v. Tunnell, 4 ?Iarring. (Del.) 424 ; contra, Conkey v. Dickinson, 13 Met. 51 ; Stillman v. Young, 16 111. 318; Fo- teaux V. Lepage, 6 Clarke (Iowa), 123 ; Scott's Case, 36 Vt. 297. 3 Watkins v. State, 4 Gill & Johns. 220 ; Karr v. Karr, 6 Dana, 3 ; Crosby v. Crosby, 1 S. C. n. s. 337 ; Wilson v. Wilson, 17 Ohio St. 150 ; Townsend v. Tal- lant, 33 Cal. 45. ■» Johnson v. Johnson, 2 Hill Ch. 277; Drane v. Bayliss, 1 Humph. 174. 5 Watkins v. State, 4 Gill & Johns. 220. [471 * 442 GUARDIAN AND WARD. as guardian, and consistent with that of continuing adminis- trator or executor, should not readily be construed to a ward's prejudice ; but rather, if need be, serve to repel the presump- tion of guardianship. If a legacy is given under a will to an infant, which he is not to- receive unless he attain full age, it would appear that the simpler course is for the executor to retain the fund dur- ing the infant's minority ; yet it is held that a probate guar- dian may, at the court's discretion, be appmnted to receive the fund and hold it subject to the restriction contained in the will.i A guardian cannot blend distinct trusts of guardianship by appointment. Thus where a person was appointed guardian of an infant who became insane shortly before reaching his majority, and the same guardian continued to act, styling himself guardian of " A. B., an idiot," it was held that his trust properly expired with the infancy of the minor.^ Nor does it matter that the probate court recognizes a continua- tion of the trust by passing his accounts ; for an actual ap- pointment, after the regular form, is always essential to a guardian's authority. "Where the person designated as executor of a will is under age it becomes necessary to appoint an administrator during minority, which appointment was at common law denominated durante minore cetate.^ So when the next of kin is under age, the English practice in such cases is to appoint the infant's guardian, unless there be some other next of kin competent to act ; though the rule is not invariable.* And in the English case of John v. Bradhury^ decided as late as 1866, it is affirmed that the guardian of an infant sole next of kin shall not only administer in preference to creditors, but shall be exempted from security, except in very strong cases, notwithstanding the creditors request it.^ So he is preferred to the husband of a married woman who died after a judicial separation.^ 1 Gunther v. State, 31 Md. 21. 2 Coon v. Cook, 6 Ind. 268. 3 1 Wms. Ex'rs, 419, 420 ; 2 Redf. "Wills, 92, 93. * lb. 5 John V. Bradbury, L. R. 1 P. & D. 245. « Goods of Stephenson, L. R. 1 P. & D. 287. But the husband usually ad- mmisters. See supra, p. 158. [472] NATURE OF GUARDIAN'S OFFICE. * 442 But in this country, while there are statutes in some States favoring similar doctrines, in others the court has full discre- tion in selecting a sulistitute for the child. ^ vSuch ad- ministrator has for the time * being all the powers of * 443 a general administrator, but his term of office is re- stricted to the infant's minority.^ A quasi guardianship often arises at law where there has been no regular appointment. The general principle thus recognized is that any person who takes possession of an in- fant's property takes it in trust for the infant. Hence courts of equity will always protect the helpless in such cases by holding the person who acts as guardian strictly accountable. The ^father may thus be a quasi guardian. ^ So may a step- father.^ Or one whose appointment as guardian was irregu- lar or nuU.^ But not an executor or administrator in rightful possession of the infant's property ; for he holds in a different capacity.'' Chancery has full jurisdiction over the transactions of all persons standing m loco jjarentisJ On the same principle, one regularly appointed guardian of an infant is held responsible for acts committed before quali- fying as such b}^ giving bonds.^ And although his authority ceases when the ward attains majority, he continues person- ally responsible so long as his possession and control of the property continues.^ The guardian's authority is limited to the jurisdiction which appoints him, and does not extent to foreign countries, unless permitted by foreign laAvs. Every nation is sovereign within its own borders, but powerless beyond them. The rights of • foreign guardians have been to some extent admitted, however, 1 1 Wms. Ex'rs, 419 ; 2 Redf. Wills, 94, and cases cited ; Mass. Gen. Stats. c. 94. 2 I "Wms. Ex'rs, 428, and notes ; 2 Redf. Wills, 94, 95. 3 Pennington v. Fowler, 3 Halst. Ch. 343 ; Alston v. Alston, 34 Ala. 15. * Espay V. Luke, 15 E. L. & Eq. 579. 5 Crooks I). Turpin, 1 B. Monr. 185 ; Earle v. Crum, 42 Miss. 165. 6 Bibb V. McKinley, 9 Port. 636; Minfee v. Ball, 2 Eng. 520. 7 Espay V. Luke, 15 E. L. & Eq. 579. 8 Magruder v. Darnall, 6 Gill, 269. 9 Mellish V. Mellish, 1 Sim. & Stu. 138 ; Armstrong v. Walkup, 12 Gratt. 608. [478 J * 443 GUARDIAN AND WARD. on the principle of comity.^ These rights may be considered, firsts as to the person of the ward ; second, as to his estate. First, as to the ward's person. Many writers on * 444 public law * claim that the guardian's authority ex- tends everywhere. Others again deny that it extends beyond the jurisdiction which appoints.^ In England, the paternal authority is recognized, even in aliens ; but if an infant has a guardian appointed by any other authority out of the jurisdiction, the appointment fails as soon as the infant comes to England, and the Court of Chancery will thereupon appoint a guardian on petition.^ But in a very recent case liberal favor was shown toward the foreign guardian of wards domiciled abroad. He had sent them to England to be educated, and wished to remove them to their own country in order to complete their education. The court refused to interfere with their removal, and allowed the exclusive custody to the foreign guardian ; at the same time, however, refusing to discharge an order appointing English guardians."^ In this country, the rights and powers of guardians over the ward's person are considered strictly local, even as between different States,^ though the paternal riglit would probably be recognized as in England.^ But in Massachusetts, a few years ago, the custody of a child was awarded to a foreign guardian, in preference to one appointed within the jurisdiction, the court observmg that while the former had no absolute right to the child, his office would be deemed an important element in determining to whom custody should be given.''' Second, as to the ward's property. A distinction has been made between movables and immovables. As to immovable * property, such as real estate, it is almost universally admitted that the law rei sitce shall govern.^ But writers do not agree 1 See story Confl. Laws, §§ 492-529. 2 See Story Confl. Laws, §§ 495-497, and authorities cited. 3 Macphers. Inf. 577 ; Ex parte Watkins, 2 Ves. 470. 4 Nugent V. Vetzera, L. R. 2 Eq. 704. See 27 E. L. & Eq. 451. 5 Story Confl Laws, § 499; Morrell v. Dickey, 1 Johns. Ch. 153; Kraft v. Wickey, 4 Gill & Johns. 332; Burnet v. Burnet, 12 B. Monr. 328; Boyd v. Glass, 34 Geo. 253 ; Whart. Confl. Laws, §§ 2(31-264. ^ See Townsend v. Kendall, 4 Min. 412. 7 Woodworth v. Spring, 4 Allen, 321. 8 Story Confl. Laws, §§ 500-502. [474] NATURE OF GUARDIAN'S OFFICE. * 444 as to movable property, such as goods and personal chattels, whether the laAV of the domicile shall prevail over that of the * situation. Judge Story considered the weight * 445 of foreign authority in this respect, in favor of admit- ting the guardian's rights to prevail everywhere to the same extent as they are acknowledged by the law of the domicile.^ And this seems to be the Scotch doctrine. ^ But according to the doctrine of the common law, now fully established both in England and America, the rights of a guardian over all property whatsoever are strictly territorial, and are recognized as having no influence upon such property in other countries where different systems of jurisprudence are established. No foreign guardian can, by virtue of his office, exercise his func- tions in another country or State, without taking out other letters of guardianship or otherwise conforming to the local law. Such is the rule in both countries.^ But the rigor of this rule is sometimes abated. In England, personal property will, under certain circumstances, be j^aid to an owner who, if domiciled and resident in that country, would not be allowed to receive it.* So administration durante minore estate has been granted to a foreign guardian.^ In this country, there are local statutes which permit non-resident guardians to sue on compliance with certain formalities, or even without them.'' But otherwise they cannot bring actions of any sort." And this seems to be the English rule likewise.^ Nor will the courts of one State enforce the obligation of a probate guardian's official bond with sureties given in another State.^ But a court having general chancery jurisdiction over 1 Story Confl. Laws, § 500 ; Schouler Pers Prop. 347-385 ; Wharton Confl. Laws, §§ 2G5, 2G6. 2 Story, ib. § 503 ; Fra.ser Parent & Cliild, 604. 3 Story Confl. Laws, § 504. i Macphers. Inf. 577 ; Goods of Countess Da Cunlia, 1 Hag. 237. 5 Goods of Sartoris, 1 Curteis, 910. e Exjmrtp. Heard, 2 Hill Ch. 54; Hines v. State, 10 S. & M. 529; Sims v. Renwick, 25 Geo. 58 ; Grist v. Forehand, 30 Miss. 69 ; Martin v. McDonald, 14 B. Monr. 544 ; Carlisle v. Tuttle, 30 Ala. 613 ; AVarren v. Hofer, 13 Ind. 167. "i Morrell v. Dickey, 1 Johns. Ch. 153 ; Kraft v. Wickey, 4 Gill & Johns. 322 ; Rogers v. McLean, 31 Barb. 304. This is the rule too in Louisiana. Succession of Shaw, 18 La. Ann. 265 ; Succession of Stephens, 19 La. Ann. 499. 8 Story considers it doubtful. Beattie v. Johnston, 1 Phillips Ch. 17 ; 10 CI. & Fin. 42 ; contra, Morrison's Case, cited in 4 T. R. 140, and 1 H. Bl. 677, 682. » Probate Court v. Hibbard, 44 Vt. 697. [ 475 j * 445 GUARDIAN AND WARD. matters of guardianship, may, it appears, in the exercise of sound discretion, and upon principles of comity, equity, and justice, order assets of the ward in the possession of a guardian resident within its jurisdiction to be delivered to the guardian abroad.^ While courts of equity will permit property to pass to the foreign guardian, in pursuance of law, it seems * 446 that they will generally exercise * discretion, and in some cases require good security ,2 in others, direct the payment of a regular allowance,'^ and in others, refuse pay- ment altogether ;^ the welfare of the infant being always con- sidered in such cases. The principles applicable to non-resident guardians in this country appear in many respects similar to those in case of foreign executors and administrators, and the rules we have stated might be subjected to modification by the mutual treaty stipulations of two independent governments.^ As each legislature in this country derives its authorit}- from a written constitution, questions sometimes arise in our courts as to the validity of certain statutes, which in Great Britain are of no importance, since there an act of Parliament is the supreme law. Thus it is not uncommon for our legislatures to authorize or confirm the sale of lands held by guardians and other trustees, by special statutes ; and such statutes have been attacked either as an interference with the property rights of infants and their heirs, or as an usurpation of judicial func- tions.^ Such acts are, however, constitutional, according to the best authorities.'' But in a New Jersey case, it was inti- mated by the Chancellor that, if fraud or sinister motives on 1 Earl V. Dresser, 30 Ind. 11. 2 Case of Andrews' Heirs, 3 Humph. 592 ; Martin v. McDonald, 14 B. Monr. 544. •* McNeely v. Jamison, 2 Jones Eq. 186. And see Ex parte Dawson, 3 Bradf. 130 ; M'Liskey v. Reid, 4 Bradf. 334. 4 See 2 Story Eq. Juris. § 1354 b ; Stephens v. James, 1 M. & K. 627. 5 Commonwealth v. Rhoads, 37 Penn. St. 60. And see Pratt v. Wright, 13 Gratt. 175. ^ See Davison v. Johonnot, 7 Met. 388, for a full discussion of the question. 7 Clarke v. Van Surlay, 15 Wend. 436; Cochran v. Van Surlay, 20 Wend. 365; Davison v. Johonnot, 7 Met. 388; Snowhill v. Snowhill, 2 Green Ch. 20; contra, Opinion of Justices, cited in 4 N. H. 572; Jones v. Perry, 10 Yerg. 59. [ ^ ' (^^ ] NATURE OF GUARDIAN'S OFFICE. * 446 the guardian's part were shown, the special act might be judi- cially avoided.^ It is held that the legislature may enable a foreign guardian to sell lands within the State.^ So a general law may be enacted for enabling guardians and other trustees to enter into agreements as to the disposition of property held by them, consistently with constitutional provisions which protect * the rights of individuals ; notwith- * 447 standing the rights of persons remotely interested in the estate, who are either not in existence or only contin- gently concerned, may be thereby compromised without their assent.-^ 1 Snowhill V. Snowhill, 2 Green Ch. 20. 2 Boon V. Bovvers, 30 Miss. 246 ; Nelson v. Lee, 10 B. Monr. 495. 3 Clarke v. Cordis, 4 Allen, 466. See further. Ex parte Atkinson, 40 Miss, 17, to the effect that untler the former constitution of that State no probate guardian could be appointed over a child whose father was living. [477] * 448 GUARDIAN AND WARD. *448 * CHAPTER V. RIGHTS AND DUTIES OF GUARDIANS CONCERNING THE WARD's PERSON. As tlie guardian of a minor stands in the place of a parent, his rights and duties, so far as concerns the person of his ward, are in general those of a parent. His rights relate chiefly to the ward's personal custody. His duties are those of protection, education, and maintenance. These rights and duties will be considered at length in the present chapter. Guardianship, generally, carries with it the custody of the ward's person. This is especially true where the ward's par- ents are both dead or incompetent to act. Some one must then exercise the right of custody ; and who is more suitable than the officer invested by law with the responsibility of paying for the child's education and maintenance ? Hence the guardian's title is, in this respect, higher than that of relatives and friends ; and he may insist upon taking the child from the control of a step-mother or grandmother, or from any person to whom the father has informally committed the care.^ For such considerations, however material in determining the selection of a guardian, become superseded by the actual appointment. And it has been said that the decision of the court as to the guardian's appointment is a final decision as to the care and custody of the ward.^ But the custody of infants, as we have seen, is a subject within the free discretion of courts of equity ; and where the interests of the ward require it, the care of his * 449 person will be * committed to others.^ Chancery 1 Coltman v. Hall, 31 Me. 19G ; Bounell v. Berryliill, 2 Cart. 613. 2 Senseman's Appeal, 21 Penn. St. 331. 3 Roach V. Garvan, 1 Ves. 160; Macpliers. Inf. 119 ; Story Eq. Juris. § 1341 ; Ward V. Roper, 7 Humph. 111. [ 478 ] EIGHTS AND DUTIES OF GUARDIANS. * 449 jurisdiction applies in this respect to testamentary and chan- cery guardianship. The good of the chikl is superior to all other considerations. Of this the court will judge in each case by the circumstances, and make orders accordingly, both as to actual custody and as to the persons who may have ac- cess to the child. In determining where the infant shall re- side, the infant's inclination will have considerable weight, if he be of sufficient age ; but not, it would appear, during the period of nurture.^ The right of chancery courts to regulate the personal cus- tody of infants subject to probate guardianship has also been asserted in this country. This principle determined the de- cision of the court in the New York case of People v. Wilcox? Here it appeared that the parents had separated, the father being a man of intemperate habits. The child, by the father's permission, was subsequently brought up at the house of his paternal grandparents. Upon the father's death, the grand- parents secured letters of guardianship, without notice to the mother, who was resident elsewhere. She afterwards came forward and claimed control of her child, then only nine years old. It appeared that the child was happy and well provided for at the home of his grand^Darents. But it also appeared that the mother was a person of good character, and that no sufficient reason existed for depriving her of her natural offspring. The child was therefore taken from the legal guardian and his custody awarded to the mother. But whatever might have been the language of the court in this case, it is apparent that the circumstances Avere of a pecidiar character. This decision turned not merely upon chancery powers. It recognized the deeper principle of natural law, that * the relation of parent and child * 450 shall not be roughly severed. And thus we find pro- bate guardianship in this country freciuently limited by posi- tive enactment, so as to reserve to the parents the natural 1 Anon., 2 Ves. Sen. 374; Ilegina v. Clark, 40 E. L. & Eq. 109; People v. Wilcox, 21' Barb. 178; Bounell v. BerryhiU, 2 Cart. 613; Kex v. Greenliill, 4 Ad. & El. C42. See su])ra. pp. 333-344, as to custody. 2 22 Barb. 178. [479] * 450 GUARDIAN and" WARD. control of their own children and the right to educate, when alive and competent to transact business.^ As to probate guardians, it is to be added that the more natural course, so far at least as strangers and distant rela- tives are concerned, is, in controversies like the foregoing, to apply for the removal of the guardian already appointed, and for the appointment of another competent to take actual con- trol of the ward's person. The English cases are numerous where the mother's claim has been postponed to that of the testamentary or chancery guardian.2 And where the mother clandestinely removes her child, the court has ordered him to be delivered up to the guardian.^ So where she procures his marriage in violation of the statute."^ And in a conflict between the mother and the infant's paternal relatives, pending the appointment of a chancery guardian, the court has given the interim custody to strangers.^ But the court interferes with reluctance as against the mother, where no misconduct on her part appears, especially if the infant is of tender years or delicate consti- tution, and requires maternal care and nourishment. And Lord Eldon observed, in a case where the mother's rights came in conflict with those of the testamentary guardian, that though the effect of the appointment of a guardian is to commit the custody of the guardianship, the court looks with great anxiety to the execution of the duty belonging to the guardian, and the attention expected to be paid to the reasonable wishes of the natural parent.^ As our former discussion of the subject of parental custody may have led the reader to infer, the American rule is not uniform in this respect ; and as to testamentary and probate guardians, the widowed mother is in some States preferred to the guardian, while in others the guardian is preferred "to the mother ; the 1 See Smith's Prob. Pract. 82, 87 ; Ramsay v. Ramsay, 20 Wis. 507. 't See Macphers. Inf. 119-121. 3 Wright V. Naylor, 5 Madd. 77. * Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 ; Gilb. Eq. 172. 6 In re North, 11 Jur. 7. See Anderton v. Yates, 15 E. L. & Eq. 151. 6 Earl of Ilchester's Case, 7 Ves. 380. [480] RIGHTS AND DUTIES OF GUARDIANS. * 450 legislature frequently supplying the definite rule of guid- ance Testamentary guardians cannot be controlled in their rights by expressions in other parts of the will appointing them which * amount to a mere recommendation. A * 451 case of this sort came before Lord Chancellor Cotten- ham in 1847. The testator had appointed testamentary guardians over his children in due form, but had further expressed the wish that in case of his wife's death during their minority they should be placed under the care of certain female relatives. The wife having died, the female relatives desired to assume full control. The Lord Chancellor refused to accede to this extent ; but, upon his suggestion, an ar- rangement was effected, satisfactory to all parties, so as to give the immediate custody to the relatives, while preserving to the testamentary guardian that general control and super- intendence which it was his duty to exercise under the will.^ Chancery will grant access in certain cases while awarding the custody of the infant to other persons. Not only have orders of access been made in the mother's favor, but, after her death, access has been allowed to her representatives.^ And where Lord Hardwicke appointed a grandmother guar- dian in preference to the father's executor, he ordered that the latter should have free access to the infants.'^ So in a Georgia case the court, while confirming the guardian's right of custody, allowed access to a near relative on lier request. ° Proceedings on a writ of habeas corpus may determine the question of legal custody. But a child in the personal keep- ing of his guardian is in legal custody ; nor can unlawful imprisonment or restraint be imputed from the guardian's refusal to surrender such child to the parent.^ On the other hand, the court cannot entertain habeas corpus to restore to 1 Lord V. Hough, 37 Cal. 657 ; Ramsay v. Ramsay, supra ; contra, Macready V. Wilcox, 33 Conn. 321. '^ Knott V. Cotter, 2 Ph. 192. 3 Ord V. Blaukett, 9 Mod. 116; Macpliers. Inf. 120. * Hunter v. Macrae, 17 Oct. 1738, cited in Macphers. Inf. 121. 5 Ex parte Kalstoii, 1 U. M. Cliarlt. 119. *> People f. Wilcox, 22 Barb. 178; Townsend t'. Kendall, 4 Min. 412; In re Andrews, L. R. 8 Q. B. 153. 31 [ 481 ] * 45 1 GUARDIAN AND WARD. the guardian a child forcibly removed by the parent, unless the child is actually restrained of liberty.^ Besides the * 452 writ of habeas * corpus, there is a remedy by petition to the Court of Chancery .^ The question whether the guardian may change the ward's domicile from one country or State to another, has given rise to much discussion. In England, it was decided in the early part of this century that the surviving parent, being also the guardian, was competent to do so.'^ The case came before Sir William Grant, and was argued by counsel with great learning and ability. It was here shown that the best conti- nental jurists supported these views ; among them, Voet, Rodenburgh, Bynkershoek, and Pothier. This is the leading case on the subject, and its authority has been fully recog- nized in the United States.^ The great objection to a change of the infant's domicile is that the right of succession to per- sonal property may be thereby affected ; and it seems prob- able that, if the change is made with fraudulent intent, to the ward's injury or the custodian's private advantage, it will not be sustained. Moreover, as the case above referred to was that of a parent, it has been doubted whether a guardian, as such, not being a parent, has the right to change his ward's domicile. In Pennsylvania, the guardian's authority has been denied, and the power confined to the parents.^ But Chancellor Kent expresses dissatisfaction with such a doc- trine, and considers the objection against the guardian's power too refined and speculative.^ The other American authorities sustain this view, though in general assuming the principle, rather than asserting it. The question does not seem to have been raised in England. With the facilities of modern travel and the liberal intercourse of nations the ten- 1 Foster v. Alston, 6 How. (Miss.) 406. 2 Story Eq. Juris. § 1340, and cases cited ; and as to custody in general, supra, pp. 333-344. 2 Fotinger v. Wightman, 3 Mer. 67. And see preceding chapter. * Holyoke v. Haskins, 5 Pick. 20 ; 2 Kent Com. 227, n. s School Directors v. James, 2 Watts & Serg. 568 ; and see Story Confl. Laws, §§ 494, 504. •> 2 Kent Com. 227, n. (c), where this subject is fully discussed. [482] RIGHTS AND DUTIES OF GUARDIANS. * 452 dency increases in favor of the guardian's power to change in good faith his ward's domicile, even though not en- dowed * with parental authority. This principle is * 453 readily admitted, so far as different counties in the same State are concerned.^ And it would be unwise for American courts to apply, as between States united under one general government, the same rigidly exclusive doctrines which foreign countries differing in religion, customs, and civil institutions, may see fit to adopt in their intercourse with one another. The English Chancery Court reluctantly permits its wards to be carried out of the jurisdiction. The Chancellor in De Manneville v. De Manneville restrained a father, himself an alien, from removing his child to a foreign country .^ In other cases, permission has been granted under stij)ulations for the benefit of the child ; the guardian being required to transmit regular returns to the court with vouchers, and to bring back the ward within a specified time.^ Similar orders in chancery have been made in this country, though rarely.* Lord Chancellor Cottenham has observed, on this subject, that while circumstances may occur, such as the ill-health of the ward, so as to render his removal necessary, the general rule ought to be against permitting an infant ward to be taken out of the jurisdiction. He further declared his regret that this rule had not been more strictly adhered to, and his conviction that a permanent residence abroad was injurious to the future prospects of English children, inasmuch as they were thus dej)rived of their religious opportunities, separated from their natural connections, estranged from the members of their own families, withdrawn from those courses of educa- tion which their contemporaries were pursuing, and accus- tomed to habits and manners which were not those of their own country, and were consequently becoming from day 1 Ex parte Bartlett, 4 Bradf. 221. '•i 10 Ves. 62. See Dawson v. Jay, 27 E. L. & Eq. 451. ' Jeffreys v. Vanteswartsworth, Barn. 141 ; Jackson v. Hankey, Jac. 265, n. ; Stephens v. James, 1 M. & K. 627 ; Lethem v. Hall, 7 Sim. 141 ; Talbot v. p:arl of Shrewsbury. 18 L. J. 125. See Macphers. Inf. 129-132. 4 Ex parte Martin, 2 Hill Eq. 71. [483] * 453 GUARDIAN AND WARD. * 454 to day less and less adapted to the position * which they should afterwards occupy in their native land.^ Insane persons and spendthrifts cannot manifestly be sub- jected to the same personal restraint and custody as infants. But the fact that such Avard occupies his own house affords him no special immunity against his guardian. Accordingly, it has been held that the guardian of a spendthrift may enter the dwelling-house of the latter, in the performance of official duties, without his permission and against his will.^ The guardian has not the same right as a father to the personal services of the infant. For as his duty to educate and maintain is limited by law to the ward's resources, and is not like the responsibility of a parent, absolute, so his rights are those of a representative, who should seek to add to the trust fund in his hands and not to his own private emolu- ment.^ By the common law, the guardian could maintain an action of trespass and recover damages for his ward ; and the stat- ute of Westminster II., c. 32, gave a writ of ravishment by means of which he could recover the body of the heir as well as damages.^ The equity of this statute may jDcrhaps extend to testamentary, chancery, and probate guardians, as well as to guardians in socage ; on which principle, it has been held that the guardian may sue and recover damages for the seduction of his female ward.^ The guardian, acting in loco parentis^ may bind out his ward as an apprentice whenever the father could doso.% This, however, is a matter almost exclusive^ of statute regulation. And, while the father is usually held liable in damages * 455 for his * son's breach of contract, it would seem that the guardian is not personally responsible for his ward unless the statute makes him so.^ 1 Campbell v. Mackay, 2 M. & C. 31. 2 gtate v. Hyde, 29 Conn. 564. '' See Bass v. Cook, 4 Port. 390 ; Bouv. Diet. " Guardian ; " Bannister v. Bannister, 44 Vt. 624. * Bac. Abr. Guardian (F). 5 Fernslee v. Moyer, 3 Watts & Serg. 416. ^ Velde V. Levering, 2 Rawle, 269. [484] RIGHTS AND DUTIES OF GUARDIANS. ♦455 As the guardian is bound to promote the moral welfare of the person intrusted to his care, he may warn off from the ward's premises any persons improper for him to associate with, and if necessary, expel them forcibl3\ This right is to be reasonably construed ; and in the use of means and the amount of force necessary to effect his ol)ject, he is allowed a liberal discretion, such as a parent might exercise under like circumstances.^ And in many other respects the rights of a guardian resemble closely those of a parent. The guardian's duties as to the ward's person are those of protection, education, and maintenance. In exercising them, he is bound to regard the ward's best interests. Guardians, as we have seen, are seldom appointed where there is not some property. But even though the ward is penniless, we are not to suppose that one vested with the full right of custody can neglect with impunity those offices of tenderness which common charity as well as parental affection suggest. For to the orphan he stands in the place of a parent, and supplies that watchfulness, care, and discipline which are essential to the young in the formation of their habits, and of which being deprived altogether, they would better die than live. It is, however, to be always borne in mind that while the father is bound to educate and maintain his children abso- lutely and from his own means, no such pecuniary responsi- bility is imposed upon the guardian. The latter need only use for that purpose the ward's fortunes. Hence, in supply- ing the wants of his ward, he is to consider, not the style of life to which they have been accustomed, so much as the income of their estate at his disposal. Whatever their social rank may have been, he may, provided they are left destitute, place them to work, or if they are too young or feeble, surrender them to some charitable * institution. He * 456 should, however, act with delicacy and prudence ; he may properly consider in this connection the habits and tastes of the children and the wishes of their relatives ; and he can relieve himself of responsibility by asking judicial guidance. 1 Wood '.-. Gale, 10 N. H. 247. [485] * 456 GUARDIAN AND WARD. The courts show a Uberal disposition to protect the guardian from personal liability on account of his ward. And if a guardian has permitted the ward, at his own cost, to remain in the care and custody of another, without express contract as to the period of time, he may, whenever he pleases, termi- nate his personal liabilit}^ by giving notice. Nor does it affect the case that his ward is then too sick to be removed.^ But if the income of the ward's estate is ample for payment of the necessaries supplied him, the creditors may, by a proper course of procedure, have it subjected to the satisfac- tion of their just claims. And this too, it would appear, notwithstanding an}' personal undertaking on the guardian's part.2 Not even funds derived from a minor's pension, granted under the United States laws, are exempt from liability for the ward's support.^ On the other hand, the guardian may make himself liable for his. ward whenever he chooses to do so. And if a guar- dian contracts with another to support his ward, he may become personally bound by his failure to limit the right for indemnity to the estate in his hands. On this principle, a case in Vermont was decided a few years ago.^ The guar- dian had contracted for the board of his ward, at a dollar and a half a week, fixing no limitation as to time. The person furnishing the board afterwards notified him that he should raise the price to two dollars a week, and that if this was not satisfactory the ward must be taken away. The guardian did not take the ward away, nor on the other hand did he ex- pressly accede to the new contract. But the court inferred from the circumstances that he had made himself personally liable for the increased rate. It was observed in this case that the guardian has the possession and control of the ward's 1 Spring V. Woodwortli, 4 Allen, 326 ; Overton v. Beavers, 19 Ark. 623 ; Bre- din V. Dwen, 2 Watts, 95 ; Hussey v. Roundtree, Busb. 110 ; Gwaltney v. Can- non, 31 Ind. 227 ; McDaniel v. Mann, 25 Tex. 101 ; Ford v. Miller, 18 La. Ann. 571. 2 Barnum v. Frost, 17 Gratt. 398 ; Walker v. Browne, 3 Bush, 686. Suit on the probate bond by permission of court is the common remedy in many States. Cole V. Eaton, 8 Cush. 587. i Welch V. Burris, 29 Iowa, 186. ^ Hutchinson v. Hutchinson, 19 Vt. 437. [ 486 ] RIGHTS AND DUTIES OF GUARDIANS. * 456 estate, for his support and maintenance, and has the power of indemnifying himself for any contracts he may make ; that it is his business to know the amount and situation of the estate, and that he is not obliged to incur any liability beyond it. If he do so it is his own fault, for which others, who cannot be so well possessed of this knowledge, ought not to suffer. But the court also held that * under the above contract * 457 the guardian was not personally liable for extra charges against the ward, such as repairs on clothing, washing, care and medical attendance while sick, and burial expenses. For necessaries of his ward, supplied by the guardian's order and on his credit, the guardian then is liable ; and this on the principle to be noticed hereafter, that the guardian has made a contract. He is of course entitled to reimbursement for the necessaries thus supplied by himself from the ward's estate. So, where he advances money for the ward's main- tenance and education.^ On the ward's own contract for necessaries, the guardian is not personally liable. And it would appear from some cases that his knowledge of the ward's contract and failure to dissent will not suffice ; in other words, that an express contract should be shown to charge the guardian personally. Yet such a contract of the ward may be ratified by the words or acts of a guardian ; and we presume that he may generally be held bound on a con- tract shown by strong implication to have existed between him and the party furnishing education or support.^ As a rule the guardian has the same right to judge as to what are necessaries, according to the estate and social position of his ward that a parent would have for his own child.^ It is held that the guardian appointed in one State may sue a foreign guardian for the support and education of wards left with the former by consent of the latter guardian.* So wherever a town is liable for the support of a ward as a pauper, his guar- dian may claim reimbursement for necessary expenses incurred 1 Smith's Appeal, 30 Tenn. St. 397 ; infra, p. 465. 2 Tucker r. McKee, 1 Bailey, 344; Hargrove v. Webb, 27 Geo. 172; Oliver V. Houdlet, 13 Mass. 237. * Nicholson v. Spencer, 11 Geo. 607 ; Kraker v. Byruni, 13 Rich. 163. * Spring V. Wood worth, 2 Allen, 206. [ 487 ] *457 GUARDIAN AND WARD. after the ward's property has been exhausted.^ A guardian is presumed to furnish all necessaries for his infant ward, and a stranger who furnishes them must in general contract with the guardian himself.^ But where the guardian makes pur- chases, the party furnishing the goods is not bound to see that payment is made from the ward's income. This risk must be run by the guardian himself, for the facts are within his own peculiar knowledge.^ The doctrine has been repeatedly declared that no guardian can expend more than the income of his ward's estate without proper judicial sanction. This is the settled rule in chancery, and it is universally applicable in the United States.* And a similar principle prevails under the civil law.^ But to what extent the guardian renders himself personally liable, by ex- ceeding the income without previous sanction of the court, is not quite clear. The English rule is undoubtedly strict. But as to probate guardians, and in modern practice, legal formal- ities have been considerably relaxed. In most of the United States the guardian is, doubtless, justified in breaking the principal fund, under strong circumstances of necessity, for the benefit of his ward, and he may leave his conduct to the subsequent approval of the court when he presents his ac- counts. In cases of risk and uncertainty, however, the projjer course is to obtain a previous order.^ The order in which the ward's property should be expended for his support and education is as follows : first, the * 458 income of the property ; * next, if that proves insuffi- cient, the principal of personal property ; lastly, if both are inadequate, the ward's real estate, or so much of it as may be necessary. The ward's real estate can never be 1 Fisk V. Lincoln, 19 Pick. 473. See Preble v. Longfellow, 48 Me. 279. 2 State V. Cook, 12 Ired. 67 ; Royston v. Royston, 29 Geo. 82. 8 Broadus v. Rosson, 3 Leigh, 12 ; Hutchinson v. Hutchinson, 19 Vt. 437. * In re Bostwick, 4 Johns. Ch. 100 ; Myers i-. Wade, 6 Rand. 444 ; 2 J. J. Marsh. 403; Villard v. Cliovin, 2 Strobh. Eq. 40;. State v. Clark, 16 Ind. 97; Beeler v. Dunn, 3 Head, 87. 5 Payne v. Scott, 14 La. Ann. 760. 6 Story Eq. Juris. § 1355 ; Chapline v. Moore, 7 Monr. 150 ; Davis v. Hark- ness, 1 Gilm. 173 ; Davis v. Roberts, 1 Sm. & M. Ch. 543 ; Royston v. Royston, 29 Geo. 82; Foteaux v. Lepage, 6 Clarke (Iowa), 123 ; Gilbert v. McEaclien, 38 Miss. 469 ; Phillips v. Davis, 2 Sneed, 520 ; Cummins v. Cummins, 29 111. 452. [ 488 ] RIGHTS AND DUTIES OF GUARDIANS. * 458 sold, except under a previous order of court. Nor can a guar- dian use in maintaining bis ward the proceeds of real estate, sold for the purpose of reinvestment only, any more than he could have used the real estate itself. He should ask to sell for the purpose of maintenance.^ In some cases, it becomes both reasonable and necessary to exceed the ward's income. Thus courts of chancery authorize the capital to be broken upon, where the property is small and the income inadequate for support.^ As where the ward's education is nearly completed, especially if he will thereby be jRtted for a profession. Or where the ward is mentally or physically unfit to be bound out as an apprentice.^ So, too, in case of extreme sickness, or other emergency, where an unusual outlay becomes necessary.^ And the guardian can anticipate the income of one year in supplying the casual de- ficiency of another.^ And he may treat an increase of value in his ward's property as income.^ And he may use the ac- cumulated profits of previous years where necessary. In short, the guardian is allowed a liberal discretion in expenditures for maintenance and education so long as he refrains from encroaching upon the ward's capital.' And it is held that he is limited in his disbursements, not to the income of the ward's estate actually in his hands, but to the income of the ward's estate wherever situated.^ As the father is bound to support his own children, he cannot, * when guardian, claim the right to use the * 459 income of their property for that purpose ; much less to disturb the principal. But, as we have seen, a father is allowed, when his means are small, to claim assistance from their for- tunes, to bring them up in becoming style. And where the father, when acting as guardian for his own children, might I Strong V. Moe, 8 Allen, 125. •^ McDowell V. Caldwell, 2 McC. Ch. 43 ; Farrance v. Viley, 9 E. L. & Eq. 219. ' Johnston v. Coleman, 3 Jones Eq. 290. * Long V. Norcom, 2 Ired. Eq. 354; Clarke, In re, 17 E. L. & Eq. 599. * Cannichael v. Wilson, 3 Moll. 87; Bybee v. Tharp, 4 B. Monr. 313. 6 Long V. Norcom, 2 Ired. Eq. 3-54 ; Macphers. Inf. 337, 338. "> Brown v. Mullins, 24 Miss. 204. 8 Foreman v. Murray, 7 Leigh, 412 ; Maclin v. Smith, 2 Ired. Eq. 371. And see Coe's Trust, In re, 4 K. & J. 199. [489] ♦ 459 GUARDIAN AND WARD. have reimbursed himself, any other person, as guardian, may help him ; rather, however, for the future than for the past.^ The allowance of money for the maintenance and education of infants constitutes an important branch of the English as contrasted with our American chancery jurisprudence. Gen- erally speaking, whenever application is made for the appoint- ment of a chancery guardian, maintenance is also applied for ; and the guardian receives no more than the annual sum fixed by the court. The ward's whole fortune is held at the dis- posal of the court, whether the infant was made a ward by suit or otherwise. If a suit be pending, the guardian receives his allowance through the receiver or some other officer of the court. If there be no suit pending, the executor or trustee pays the annual sum fixed by the court ; and, if the whole proceeds of real estate be ordered for maintenance, the ten- ants are safe in attorning to the guardian. But parties mak- ing payment are discharged only to the extent of the allowance decreed.^ Testamentary guardians are, however, frequently author- ized by the testator to apply at discretion from the in- * 460 come of the * infant's fund, or from the capital, for his support ; and such discretion Avill not be controlled so long as the guardian acts in good faith. But trustees and guardians frequently procure an order of maintenance, not- withstanding, in order to relieve themselves of all responsi- bility.^ Doubts were formerly entertained of the power of chancery to interfere in these and other cases where the infant had not been made a ward of chancery by suit. No such doubts now exist, however ; and the court will, on pe- tition, and without formal proceedings by bill, settle a due maintenance.^ 1 Macphers. Inf. 219; Clark v. Montgomery, 23 Barb. 464; Beasley r. Wat- son, 41 Ala. 234 ; Welch v. Burris, 29 Iowa, 186 ; Myers v. Wade, 6 Rand. 444 ; Walker v. Crowder, 2 Ired. Eq. 478. See supra, pp. 322, 326. •'! Macphers. Inf. 106 ; Ex parte Starkie, 3 Sim. 839. 3 Macphers. Inf 213; Livesey v. Harding, Taml. 460 ; French v. Davidson, 3 Madd. 396 ; Collins v. Vining, 1 C. P. Cooper, 472. * Story Eq. Juris. § 1354, and cases cited. And see Kettletas v. Gardner, 1 Paige, 488. [490] RIGHTS AND DUTIES OF GUARDIANS. * 460 Courts of chancery treat the guardian as the proper judge of the place where his ward shall be educated, and Avill, if necessary, issue orders to compel obedience. But if guardians disagree as to the mode of their ward's education, the court will exercise its own discretion and will not consider itself bound by the wishes of the majorit}^^ Parol evidence of the deceased father's wishes is admissible, and the court will pay attention to such wishes, although informally expressed, in judging of the mode of education of children as well as in the appointing of a guardian.^ The subject of a child's religious education received much consideration in a late English case, where, notwithstanding the father's directions in his will appointing a testamentary guardian who was, like himself, a Roman Catholic, a daugh- ter nine years old was allowed to remain with her mother, a Protestant, and to be brought up in the same religious faith ; and this against the guardian's wishes, tardily expressed. An antenuptial agreement made between the husband and wife stipulating that boys of the marriage should be educated in the religion of the father and girls in that of the mother, was, indeed, declared of no binding force as a contract ; and yet it was added that this agreement would have weight with the court in considering, after the father's death, whether he had abandoned his right to educate this daughter in his own religion. The welfare of the child was, under the circum- stances, deemed a very important consideration.^ ' Story Eq. Juris. § 1340; Macphers. Inf. 121; Tremain's Case, Stra. 168 ; Hall v. Hall, 3 Atk. 721. 2 Anon., 2 Ves. Sen. 56 ; Campbell v. Mackay, 2 M. & C. 34 ; contra, Storke V. Storke, 3 P. Wms. 51. 3 Andrews v. Salt, L. R. 8 Ch. 622. See In re Newbery, L. R. 1 Ch. 263. where the deceased father's wishes prevailed, as against the mother and the children, so tliat the minor children might not be taken to worship at a chapel of the " Plymouth Brethren." [491] *461 GUARDIAN AND WARD. *461 * CHAPTER VI. RIGHTS AND DUTIES OP THE GUARDIAN AS TO THE WARD'S ESTATE. We have seen that chancery guardians have only a limited authority over the estates of their v^^ards, inasmuch as the court makes a fixed allowance, to be consumed in mainten- ance and education, leaving the bulk of the infant's estate in the hands of executors, trustees, or its own officers. In this country, guardians almost invariably assume the full management of their ward's fortunes, unless restrained by the will of the testator ; and, whenever they do so, they are bound by the principles which regulate the general conduct of all trustees. The leading principle recognized by chancery in supervising the guardian's conduct is, that the ward's interests are of paramount consideration. Hence, two observations are to be made at the outset of this chapter. The first is, that un- authorized acts of the guardian may be sanctioned if they redound to the ward's benefit; while, on the other hand, for unauthorized acts b}^ which the ward's estate suffers, the guardian must pay the penalty of his imprudence.^ The second is, that the guardian's trust is one of obligation and duty, and not of speculation and profit.^ We shall have occasion to apply these observations as we proceed. Among the most obvious powers and duties of the guar- dian -in the management of his ward's property are * 462 these : To collect * all dues and give receipts for the same. To procure such legacies and distributive shares from testators or others as may have accrued. To 1 Milner v. Lord Harewood, 18 Ves. Jr. 259 ; Capehart v. Huey, 1 Hill Ch. 405. - 2 Kent Com. 229. [492] RIGHTS AND DUTIES OF GUARDIAN. * 462 take and hold all property settled upon the ward by way of gift or purchase, unless some trustee is interposed. To col- lect dividends and interest, and the income of personal prop- erty in general. To receive and receipt for the rents and profits of real estate. To receive moneys due the Avard on bond and mortgage. To pay the necessary expenses of the ward's personal protection, education, and support. To invest and reinvest all balances in his hands. To sell the capital of the ward's property, change the character of investments when needful, convert real into personal and personal into real estate, in a suitable exigency; but not without judicial direction. To account to the ward or his legal rejjresenta- tives at the expiration of his trust. And, in general, to exercise the same prudence and foresight which a good busi- ness man would use in the management of his own fortunes, though under more guarded restraints.^ The right to collect a debt implies the right to sue. Hence, the guardian may, in the exercise of good discretion, and act- ing, if need be, under competent legal advice, institute suits to recover the ward's property.^ And this right extends to property fraudulently obtained from the ward before the guardian's appointment.^ But he must sue in general in the name of his ward (except under qualifications to be noticed), and not in his own name.^ And if he institutes groundless and speculative suits, and is unsuccessful, he must bear the loss.^ So, too, whenever his conduct shows fraud or heedless imprudence. Otherwise, he is entitled to his costs and legal expenses out of the ward's estate. The rule in many States now is that the guardian sues and is to be sued upon his own express contract touching the ward's estate. And in various instances he may appear and make defence for the ward. But in other States the older rule of the English chancery is fol- 1 Genet v. Tallmadge, 1 Jolins. Ch. 3 ; Jackson v. Sears, 10 Johns. 4o5 ; Eicli- elberger's Appeal, 4 Watts, 84; Swan v. Dent, 2 Md. Ch. Ill; Crenshaw v. Crenshaw, 4 Rich. Eq. 14; Chapman v. Tibbits, 33 N. Y. 289. '^ Smith V. Bean, 8 N. 11. 15; Sheplierd v. Evans, 9 Ind. 2G0. ' Somes I'. Skinner, 16 Mass. 348. •* Longstreet v. Tilton, Coxe, 38 ; Siilings v. Bumgardner, 9 Gratt. 273. 5 Brown v. Brown, 6 E. L. & Eq. 567 ; Savage v. Diekson, 16 Ala. 257. [493] * 462 GUARDIAN AND WARD. lowed, which required a guardian ad litem to make defence, the infant being the party sued.^ 1 Taylor v. Kilgore, 33 Ala. 214 ; 1 Foster (N. H.), 204. Among the cases in which the guardian has been allowed to sue in his own name are the following : For non-payment of rent. Pond v. Curtiss, 7 Wend. 45. For trespass on his ward's lands. Truss v. Old, 6 Rand. 556 ; Bacon v. Taylor, Kirby, 368. For intermeddling with the issues and profits thereof. Beecher v. Grouse, 19 Wend. 306. For an injury to any property of the ward in his actual possession. Fuqua V. Hunt, 1 Ala. 197. Or where he has the right of possession. Sutherland v. GoflF, 5 Porter, 608; Field v. Lucas, 21 Geo. 447. Or on a note payable to him- self, as guardian, though given for a debt due to the ward. JoUifFe v. Higgins, 6 Munf. 3 ; Baker v. Ormsby, 4 Scam. 325 ; Thacher v. Dinsmore, 5 Mass. 299. Or, as it would appear, on his express contract toucliing the ward's estate. Thomas v. Bennett, 56 Barb. 197. But debts and demands of the ward should in general be prosecuted in the ward's name. And the guardian cannot sue in his own name, after his female ward's marriage, for a debt due her before such marriage. Barnet v. Common- wealth, 4 J. J. Marsh. 389. Nor on a promise to the guardians of the minor children of A. B., for this is a promise to the wards. Carskadden v. McGliee, 7 Watts & Serg. 140. Nor on an award, although he had submitted to arbitration. Hutchins v. Johnson, 12 Conn. 376. Nor where a statute authorizes guardians to " demand, sue for, and receive all debts due " their wards. Hutchins v. Dresser, 26 Me. 76. And see Hoare v. Harris, 11 111. 24; Fox v. Minor, 32 Cal. 111. He cannot act on a petition for partition. Stratton's Case, 1 Johns. 509 ; Totten's Appeal, 46 Penn. St. 301. Nor subscribe a libel for divorce. Winslow V. Winslow, 7 Mass. 96. He is sometimes authorized by statute, however, to sue in his own name for the use of the ward. Fuqua v. Hunt, 1 Ala. 197 ; Long- uiire V. Pilkington, 37 Ala. 296 ; Mebane v. Mebane, 66 N. C. 334. And see Anderson v. Watson, 3 Met. (Ky.) 509 ; Hines v. MuUins, 25 Geo. 696. A guardian is to be sued in person upon notes executed by him in his official capacity. See 1 Pars. Bills & Notes, 89, 90 ; Thacher v. Dinsmore, supra. A guardian is not liable in assumpsit for necessaries. Cole v. Eaton, 8 Cush. 587. But he may be sued upon his own contract touching his ward's estate. Stevenson v. Bruce, 10 Ind. 397. And judgment sliould then be against him personally, and not against the ward. Clark v. Casler, 1 Cart'.' (Ind.) 243. Wliere the judgment is to bind the ward's property, suit should be against the ward. Otherwise, the property of the guardian must be levied upon, who will look to the infant's estate for his own reimbursement. Tobin v. Addison, 2 Strobh. 3 ; Clark V. Casler, 1 Smith (Ind.), 150. And see Raymond v. Sawyer, 37 Me. 406. As to conclusiveness of judgments, see Morris v. Garrison, 27 Penn. St. 226. Judgment against a person " as guardian," is a judgment against him personally, the additional words being descriptive merely. No action lies against a guar- dian upon the ward's contracts or debts ; but suit should be against the ward, who may defend by guardian. Brown v. Chase, 4 Mass. 439 ; Willard v. Fair- banks, 8 II. 1. 1. In dower and partition proceedings, a guardian may appear for the ward, like any guardian ad liU/m, in some States. Rankin v. Kemp, 21 Ohio St. 651 ; Cowan v. Anderson, 7 Cold. 284. In Massachusetts, a ward's money may be readied by trustee process against him or taken on execution. Simmons V. Almy, 100 Mass. 239. [494j RIGHTS AND DUTIES OF GUARDIAN. * 463 * A guardian is now generally permitted to siihmit * 463 to arbitration questions and controversies respecting the property and interests of his ward, and the award made in pursuance thereof is binding on all parties. ^ So he may compromise when acting in good faith and sound dis- cretion for the benefit of his ward. * But the guar- * 464 dian's compromise of a baseless and unjust claim would not be upheld in equity as against the ward, nor, as it would seem, against the guardian himself, no blame attaching to the latter.2 An infant cannot, in any event, be bound by the fraudulent compromise of his guardian.^ On the same general princii^les, and with like limitations, the guardian may release a debt due his ward. The same rule as to com- pounding and releasing debts appears to prevail in England as in this country ; and it applies to all trustees alike."^ The original doctrine seems to be this : that he cannot bind his ward by arbitration unless the court shall previously author- ize him to do so, or subsequently approve, on the ground that it was for the ward's benefit. A guardian, it is said, cannot by his general contracts bind the person or estate of his ward.^ Nor can he avoid a bene- ficial contract made by his infant ward.° Nor waive a benefit to which the ward is entitled by decree.^ For any thing which he does injurious to the infant is a violation of duty. And the insertion in a contract of words importing the title "guardian" will not shield the guardian from personal lia- bility. In the language of Chief Justice Parsons : " As an administrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the person or estate of his ward." ^ But the rule is, after all, a 1 Weed V. Ellis, 3 Gaines, 253; Weston v. Stewart, 11 Me. 326; Hutchins V. Johnson, 12 Conn. 376; Goleman v. Turner, 1-1 S. & M. 118; Strong v. Beroujon, 18 Ala. 168. '^ Underwood v. Brockman, 4 Dana, 309. '' Lunday v. Thomas, 26 Geo. 637. * Blue V. Marshall, 3 P. Wms. 381. * Jones V. Brewer, 1 Pick. 317 ; Tenney v. Evans, 14 N. II. 343. 6 Oliver v. Houdlet, 13 Mass. 237. And see Bac. Abr. Guardian (G). t Hite V. llite, 2 Hand. 409. 8 Forster v. Fuller. 6 Mass. 68. [495] * 464 GUARDIAN AND WARD. technical one ; for the insertion of words showing represent- ative capacity imports that the contract was made as a trus- tee. And on all such contracts, fairly made, the guardian is entitled to reimbursement from his ward's estate. It is sim- ply meant that the person with whom the guardian contracts on behalf of his ward may presume a sufficiency of * 465 assets. If one acting in a trust capacity * could claim exemption from all personal liability, on the ground that there was none of the ward's property left in his hands for payment, he might abuse his privileges. His knowledge of the exact state of the trust fund and his power of manage- ment would give him an immense advantage over the other contracting party. Hence the propriety of the rule that guardians are jjersonally bound on their contracts, in dealing with others on the ward's behalf while in turn they bind the estate by charging their expenses to the ward's account, to be passed upon by the court. The insertion of words imply- ing a trust becomes therefore essential in determining whether a contract was intentionally made by the guardian on his own or his ward's account. If the guardian contracts a debt for his ward's benefit, he becomes, in this sense, personally lia- ble ; and this even though the debt be for necessaries.^ The title to promissory notes made payable to the guardian is prima facie in him. And this is true, though his author- ity has ceased. Hence he may maintain suit, unless * 466 the defendant * can show that it has been transferred to the successor, or otherwise disprove title.^ The guardian may, however, indorse over such note on the cessa- tion of his authority ; in which case the person in lawful possession should sue. So too the guardian may, after his ward's death, transfer a note for the ward's money, payable to the ward or bearer, to a third person for collection.^ The promise of a guardian to pay his ward's debts is not collateral, within the statute of frauds ; and therefore it 1 Simms v. Norris, 5 Alt'r se. The gen- eral rule of election recognizes, then, two principles : first, the 1 Beazley v. Harris, 1 Bush, 533. See McFarland v. Conlee, 44 111. 455. 2 State I'. xMurray, 24 Md. 310. See infra, p. 610. 3 Wynne v. Benbiiry, 4 Jones Eq. 395 ; and see, as to fraud generally, Story Eq. Juris. §§ 317-320 ; Harrison v. Bradley, 5 Ired. Eq. 186 ; Dawson v. Massey, 1 Ball & B. 329 ; Henry v. Pennington, 11 B. Monr. 55. 35 [ 545 ] *509 GUARDIAN AND WARD. privilege of the infant ward, on attaining full age to avoid his guardian's transaction ; second, the right of courts of equity to control this privilege by interposing to pronounce the trans- action good. The whole doctrine, therefore, seems in strict accordance with that more general rule, that the accounts of the guardian are open to the inspection of the ward at majority, and ma}^ be disputed down to the smallest item. And where, as in the case of probate guardians, settlements out of court do not dispense with final returns for preservation and public record, the tendency of the decisions must be in favor of bring- ing the question of affirmance or disaffirmance of the * 510 guardian's * transaction before the court, instead of leaving it to acts of the late ward en pais. These principles suffice for general application to compromises, sub- missions to arbitration, investments and reinvestments of personal property, and similar transactions, undertaken by the guardian on the strength of a j)revious order of court, or at the risk of its subsequent approval.^ Yet, statutes some- times interpose to render such transactions absolutely perfect on permission of the court. But as to transactions which involve the purchase or sale of real estate, on the infant ward's behalf, the rule is very strict. A defective sale of real estate under the statute may be set aside on a bill in equity filed by the infant against the guar- dian and the purchasers.^ And where the guardian contracts to buy real estate for the ward's benefit, the ward, on reach- ing majority, may either complete the contract or reject it, and look to the guardian for payment.^ But he cannot, in absence of fraud, compel the vendor to refund the money paid down as a bonus.'^ Nor can he, having once renounced, seek to be relieved against such renunciation.^ The right of elec- tion goes to the ward's personal representatives if he dies under age.^ And it would appear to be a general principle 1 Barnaby v. Barnaby, 1 Pick. 221. See supra, chs. 6, 8. 2 2 Kent Com. 230 ; Eckford v. De Kay, 8 Paige, 89 ; Westbrook v. Com- stock. Walker Ch. 314. See supra, p. 485. As to adjustment of rents and improvements in such cases, see Anderson v. Layton, 3 Bush, 87 ; Holbrook v. Brooks, 33 Conn. 347. 3 Loyd V. Malone, 23 111. 43; Hopk. 337. * Yerger v. Jones, 16 How. 30. * Floyd V. Johnson, 2 Litt. 109. <> Singleton v. Love, 1 Head, 357. [546] RIGHTS AND LIABILITIES OF THE WARD. * 510 that where the ward, after arriving of age, with full knowledge of all the facts and in the absence of fraud, receives and retains the purchase-money arising from the guardian's sale of his land, he cannot question the validity of the sale after- wards.^ All advantageous bargains which a guardian makes with the ward's funds are also considered subject to the ward's election, either to repudiate or to uphold the contract and take the profits. This applies, in general, to improper acts ; as where the guardian speculates with the trust funds, or in- vests them in his own business, or, in a word, converts them to his own use. The ward may either take the investment as he finds it, with all the profits, or demand the original fund, with interest ; though he cannot avoid a transaction in * part and ratify in part.^ For it is right that the * 511 ward should enjoy all the advantages which have ac- crued from the use of his own money ; and it is also right that the guardian should not derive gain from the ward's loss. The old rule of chancery in this respect has been gradually relaxed ; so that many acts of a trustee, which might once have been considered fraudulent and void, are now deemed voidable only.-^ Thus it is that the rule may now be considered well settled, that the guardian who buys at the sale of his ward's lands or other property is secure in his purchase, and retains all the benefits arising therefrom, unless the ward chooses to set it aside and claims to be reinstated in his own possession. This rule is laid down, however, with great caution in the courts ; and it is frequently said that the transaction is treated all the same, whether the guardian bought the property outright or there was a colorable purchase by means of third parties ; moreover, that such sales, in order to stand at all, must have been conducted fairly and in good faith.* Where the circuni- 1 Defonl V. Mercer, 24 Iowa, 118. 2 2 Kent Com. 230 ; Docker v. Somes, 2 M. & K. 664 ; Kyle v. Barnett, 17 Ala. 306 ; Singleton v. Love, 1 Head, 357 ; White v. Parker, 8 Barb. 48 ; Jones V. Beverly, 45 Ala. 161. 3 See Hill on Trustees, 159, 586. * 2 Kent Com. 230 ; Scott v. Freeland, 7 S. & M. 409 ; Elrod v. Lancaster, 2 [ '347 ] *511 GUARDIAN AND WARD. . stances show fraud and collusion, courts of equity hesitate little in setting the transaction aside. ^ And a material ques- tion for consideration in such sales is whether a fair price was paid for the property. Parties affected with notice of the circumstances cannot complain if their title to real estate be- comes thereby impaired ; but it is hard that purchasers with- out notice should suffer. On this latter principle, and for the security of title, rests a recent decision in Massachusetts, to the effect that the guardian's purchase of his ward's real estate is voidable by the ward only as against the guar- dian, or a purchaser claiming under him with knowledge of the circumstances ; and not as against a subsequent * 512 * grantee or mortgagee without notice.'^ Here that constructive notice which the public records furnish is probably to be deemed unavailing on the ward's behalf.^ This brings us to the general subject of transactions between the guardian and ward, from which the former derives a bene- fit. Here, as in the guardian's purchases, equity is not dis- posed to favor him. " In this class of cases," says Judge Story, " there is often to be found some intermixture of de- ceit, imposition, overreaching, unconscionable advantage, or other mark of direct and positive fraud." * Equity will relieve against such transactions, on the general principle of utility, although there may not have been actual imposition ; but if an improper advantage has been taken, the ground for relief is still stronger. And it is noticeable that a more strin- gent rule has been laid down as to guardians than applies to transactions between parent and child ; for a guardian is not supposed to be influenced by that affection for his ward which parents entertain towards their own offspring, and therefore has no such powerful check upon his selfish feelings.^ Head, 571 ; Patton v. Thompson, 2 Jones Eq. 285 ; Chorpenning's Appeal, 32 Penn. St 315. And see supra, chs. 6, 7. 1 Hayward v. Ellis, 13 Pick. 272. - "Wyman v. Hooper, 2 Gray, 141. 3 As to the English doctrine, see Morse v. Royal, 12 Ves. 372; Gary v. Gary, 2 Sch. & Lef. 173; Naylor v. Winch, 1 Sim. & Stu. 567. * Story Eq. Juris. § 307. 5 Pierce v. Waring, cited 1 Ves. 380 ; Hylton v. Hylton, 2 Ves. 547 ; Hatch V. Hatch, 9 Ves. 296. See Hill on Trustees, 157-160. [548] RIGHTS AND LIABILITIES OF THE WARD. * 5 1 2 Such questions generally arise at and about the time the ward attains majority, and pending the final settlement of the guardian's accounts. The English rule is very strict, and courts are extremely watchful to prevent all undue advantage at this critical period. Therefore, gifts and conveyances of the ward's property, in consideration of the guardian's ser- vices, on a final adjustment may be set aside afterward in equity, even after the ward's death. "Where the connection is not dissolved, the accounts not settled, every thing remain- ing pressing upon the mind of the party under the care of the guardian," observes Lord Eldon, "itis almost impos- sible that the transaction * should stand." ^ Nor are * 513 the circumstances under which the gift was made con- sidered of much account; for the guardian's superior age and knowledge of the world, and the fact that he holds the prop- erty in his hands, place him at a decided advantage, whether he chooses to adopt a threatening tone or to impose upon the ward's mind by excessive kindness. These general principles apply, though not always in the same degree, to all others sustaining fiduciary relations ; including receivers and agents who manage the property of a cestui que trust. And unfair advantages of every sort, which the guardian aims to secure on a final adjustment of his accounts, — whether it be in the shape of compensation or the waiver of indebtedness incurred by his misconduct, — follow one invariable rule : that equity will relieve the ward against the consequences of his one- sided bargain.2 In this country the rule is somewhat different ; for certain circumstances, such as the recognition that compensation of some sort is justly due a trustee for his services, may fairly contribute to relax the rule in the guardian's favor. Settle- ments and bargains between the guardian and M'ard out of court are, however, frequently set aside for corrupt influence. 1 Hatch V. Hatch, 9 Ves. 296. 2 Hylton V. Hylton, 2 Ves. 547; Wood v. Downes, 18 Ves. 120; Mulliallenv. Marum, 3 Dr. & W. 317 ; Aylward i-. Kearney, 2 Ball & B. 4G3 ; Hunter v. At- kins, 3 M. & K. 135; Macphers. Inf. 260-264; Revett i;. Harvey, 1 Sim. & Stu. 502 ; Duke of Hamilton v. Lord Moliun, 1 P. Wms. 118. But see Cray v. .Mans, field, 1 Ves. Sen. 379, where gift to an agent was supported. [ 549 ] * 513 GUARDIAN AND WARD. So are gifts and conveyances in consideration of the guar- dian's services ; more especially when undue influence is shown from special circumstances.^ A guardian cannot recall his own gift to his ward ; though such a gift might lead the court to regard the guardian's account for expenditure with favor towards him.^ In Pennsylvania, it is said that settle- ments will not stand unless full deliberation and good faith are manifest ; but that a settlement made in good faith, especially if wise and prudent, cannot be impeached, * 514 after the ward's death, by his representatives.^ *This is doubtless the rule elsewhere. And the mere fact that a settlement has been made between guardian and ward, with allowances in the guardian's favor, is not conclusive of fraud, though every intendment is still to be construed on the ward's behalf.^ Circumstances, such as great inadequacy of price in a guardian's purchase of his ward's property shortly after the latter reaches majority, would doubtless suffice, if not rebutted by ample proof of fairness, for setting aside the transaction as fraudulent.^ The fact that settlements out of court are not generally re- garded in this country as conclusive, inasmuch as the probate guardian must still file his accounts and submit his transac- tions to the court, is a great safeguard against fraud. A fixed rule is established for the final adjustment of all matters in controversy between guardian and ward. The chancery practice is to allow the Avard a reasonable time, after attain- ing majority, usually one year, to reopen all accounts between himself and his guardian.^ Hence a receipt in full, or a for- mal release, has been set aside as inconclusive. And where the ward has made a partial inspection only, without exam- 1 Hall V. Cone, 5 Day, 543; Waller v. Armistead, 2 Leigh, 11 ; Siillivan v. Blackwell, 28 Miss. 737 ; Clowes v. Van Antwerp, 4 Barb. 416 ; Briers v. Hack- ney, 6 Geo. 419 ; Fridge v. State, 3 Gill & Johns. 103 ; Richardson i'. Linney, 7 B. Monr. 571. -' Bond V. Lockwood, 33 111. 212 ; Pratt v. McJunkin, 4 Rich. 5. 3 Hawkins' Appeal, 32 Penn. St. 263. 4 Kirby v. Taylor, 6 Johns. Ch. 242 ; McClellan v. Kennedy, 8 Md. 230 ; Spalding v. Brent, 3 Md. Ch. 411 ; Meek v. Perry, 36 Miss. 190 ; Myer i-. Rives, 11 Ala. 760. 5 Eberts V. Eberts, 55 Penn. St. 110; Snell v. Elam, 2 Heisk. 82. <> Matter of Van Home, 7 Paige, 46. [ 550 ] RIGHTS AND LIABILITIES OF THE WARD. * 514 ining the vouchers, or acted without advice, or upon imperfect knowledge of the facts, so much the greater is his equity to relief.^ But in probate guardianship, settlements out of court usually give way to settlements in court. And if the ward makes no objection to the guardian's final account as pre- sented, and it is thereupon approved and recorded, and appeal is not taken, no necessity for application of the chancery rule, of reopening the account, seems to exist, except upon very strong proof of fraud or error.^ * Transactions after the period of guardianship, be- * 515 tween parties lately holding the relation of guardian 1 Revett V. Harvey, 1 Sim. & Stu. 502 ; Wych v. Packington, 3 Bro. P. C. 46 ; Rapalje v. Norsworthy, 1 Sandf. Ch. 399; Johnson v. Johnson, 2 Hill Ch. 277; Womack v. Austin, 1 S. C. n. s. 421. 2 Kittredge v. Betton, 14 N. H. 401 ; Musser v. Oliver, 21 Penn. St. 362 ; Pierce v. Irish, 31 Me. 254 ; Boynton v. Dyer, 18 Pick. 1 ; Hickman's Appeal, 7 Barr, 464 ; Southall p. Clark, 3 Stew. & Port. 338 ; McDow v. Brown, 2 S. C. N. s. 95 ; Bybee v. Tharp, 4 B. Monr. 313. Among decisions which apply to transactions between guardian and ward the following may be noticed. Where a guardian advances money on his ward's account, he may have an assignment of the security. Kelchner v. Forney, 29 Penn. St. 47. He is not necessarily bound to pay over cash on settlement ; but securities taken in the performance of his official duty are transferable at a just valuation, tiie same as any specific chattels, and the ward must take them in this form. Goodson v. Goodson, 6 Ired. Eq. 238. In extending time for payment of a security the guardian may sometimes arrange fairly with his ward for special compensation. Burnham v. DaUing, 3 C. E. Green, 132. The guardian who does not insist on surrendering good securities, properly taken, as the estate of his ward, but pays out of his own funds instead, in part, may become to a corresponding extent joint owner of the securities. Higgins v. McClure, 7 Bush, 379. But the guardian's own note or bond for the balance of money adjudged due on a final settlement is no payment to the ward, nor does it discharge the guardian's sureties. It is a mere postponement of final payment, and affords evidence of an admitted liability on his part. Wardlaw v. Gray, 2 Hill Ch. 644; Hamlin v. Atkinson, 6 Rand. 574. The guardian cannot buy up an equitable encumbrance, and enforce it against the ward who is ready to refund. Taylor v. Taylor, G B. Monr. 559. The ward may release to one of joint guardians and not to the others, and thus hold the sureties. Kirby v. Taylor, 6 Johns. Ch. 242 ; though this principle may be affected by general rules as to probate bonds. A receipt in full discharges only for the amount actually received by the wards, and binds only such wards as were authorized to give it; and its validitj- and effect, though under seal, may be considered in court. Witman's Appeal, 28 Penn. St. 376 ; Barnes i: Comp. ton, 8 Gill, 391 ; Felton r. Long, 8 Ired. Eq. 224 ; Magruder i'. Goodwyn, 2 P. & H. 561 ; Stark v. Gamble, 45 N. H. 465 ; Wade v. Lol)dell, 4 Cush. 510. The settlement of an insolvent guardian with his ward is sometimes protected by a court of equity as against the guardian's assignee in insolvency. Moore v. Hazelton, 9 Allen, 102. [551] *515 GUARDIAN AND WARD. and ward, especially if the ward still remains under the in- fluence of a former guardian, maybe set aside upon the same principle of constructive fraud. It is true that bargains between them are good whenever the influence is fully re- moved ; even to gifts and conveyances in consideration of past services, the accounts having been finally closed, the property duly transferred, and the late parties to the fiduciary relation standiuR' toward one another as man and man. Under these circumstances, the late guardian may purchase property of his late ward.^ But such transactions are always to be regarded with suspicion. And where the influence still con- tinues, as if the ward be a female, or a person of weak understanding, and the guardian continues to control the property or to furnish a home, the court is strongly disposed to set aside the bargain altogether.^ Thus where a guardian procures the late ward's indorsement of his own notes with- out consideration, the parties who take such notes with knowledge of the fiduciary relationship, have been * 516 enjoined * from enforcing them against the indorser.^ And if the guardian purchase rights of the late ward in his father's property for a grossly inadequate consideration, it will be set aside.* The circumstance that the guardian had better opportunities of acquaintance with the actual condition and value of the property than the ward himself is properly to be considered on the latter's behalf. Purchases of the guardian's property by the late ward are to be closely scru- tinized in like manner.^ This principle applies to quasi guardians, even to parents. Not many years since, a young lady, who had been living for thirteen years with her mother and step-father, joined the latter within twelve months after she became of age, at his request and under his influence, in a promissory note for which she received no consideration. The payee some years 1 Oldin V. Samborn, 2 Atk. 15. 2 See Macphers. Inf. 2G0; Huguenin v. Baseley, 14 Ves. 273; Dent v. Bennett, 4 M. & C. 269 ; Mellish v. Mellish, 1 Sim. & Stu. 138; Dawson v. Mas- sey, 1 Ball & B. 219 ; Garvin v. Williams, 50 Mis. 206. 3 Gale V. Wells, 12 Barb. 84. * Wright V. Arnold, 14 B. Monr. 638 ; Williams v. Powell, 1 Ired. Eq. 460. 5 Sherry v. Sansberry, 3 Ind. 320. [552] RIGHTS AND LIABILITIES OF THE WARD. * 5 1 6 later obtained judgment at common law, and was about to take out execution, when the Court of Chancery interfered on motion, restrained the payee from enforcing his execution, and ordered the money paid into court.^ But the ward may be barred by the lapse of time or by his own acts from disaffirming his own transactions or his guardian's unauthorized acts. Such lapse of time is to be computed from the time he becomes competent to act. And, to be barred by his own acts, it should appear that he acted after termination of his disability, with deliberation and on full knowledge of the essential facts.^ Thus, where a guar- dian has exceeded his ward's income in purchasing for him a horse and buggy, there will be a ratification presumed from circumstances showing that the ward used them after majority and received the proceeds of their sale.^ And the composi- tion of a debt on fair terms made between an insolvent guar- dian and his ward about eight years after the latter became of age, will not readily be set aside for the purpose of ena- bling the ward at so late a day to reach the sureties on the guardian's bond.* It is a rule of tlie English courts of chancery that no one can marry a ward of the court without its express sanction. And * wherever a guardian is appointed he * 517 must give a recognizance that the infant shall not marry without its leave. ^ If a man marry a female ward without the approbation of the court, he, and all others con- cerned, will be treated as guilty of a contempt of court, and punished accordingly. So where there is reason to suspect an improper marriage of its wards, the court will interfere, 1 Espey V. Luke, 15 E. L. & Eq. 579. And see Maitland v. Backhouse, 16 Sim. 58. 2 Fish V. Miller, 1 Hoff. Ch. 2G7 ; Binion v. Miller, 27 Geo. 78 ; Scott v. Free- land, 7 S. & M. 409; Hume v. Hume, 3 Barr, 144; Worrell's Appeal, 23 Benn. St. 44 ; Sherry v. Sansberry, 3 Ind. 320; Penn i'. Heisey, 19 111. 295; Singleton V. Love, 1 Head, 357 ; Maephers. Inf. 538-543 ; Lee v. Brown, 4 Ves. 361 ; Cory V. Gertcken, 2 Madd. 40 ; AUfrey v. Allfrey, 11 Jur. 981. 3 Caffey v. McMichael, 64 N. C. 507. * Motley v. Motley, 45 Ala. 555. 5 Story Eq. Juris. §§ 1358-1361 ; Maephers. Inf. 191-209; Eyre v. Countess of Shaftesbury, 2 P. Wms. Ill ; Smith v. Smith, 3 Atk. 305; Stackpole v. Beau- mont, 8 Ves 98 ; Stevens v. Savage, 1 Ves. Jr. 154. [ 553] *517 GUARDIAN AND WARD. by injunction, to prevent the marriage, to forbid all inter- course between the lovers, and even to take the ward from the custody of the guardian or any other person who is supposed guilty of connivance with the match. When an offer of marriage is made, the court refers it to a master to ascertain and report whether the match is suitable, and also what settlement should be made upon the ward. Where a marriage has been celebrated without leave, the court will interfere to protect the female ward against the consequences of her indiscretion, and will compel the husband to make a suitable settlement upon her.^ This whole subject is peculiar to the laws of England, and has no application whatever to courts of chancery in this country ; unless it be that orders might issue in some cases of improvident marriage to compel the settlement of a suitable portion upon the female ward. Yet authority is wanting for the exercise of chancery juris- diction even to this extent : so repugnant does it appear to the whole tenor of our legislation. But where property of a female ward is under the control of a court of equity, and the husband needs its assistance, a suitable provision might be compelled on her behalf ; for this would be in accordance with the general law of husband and wife.^ 1 Kenny v. Udall, 5 Johns. Ch. 464, 473 ; s. c. 3 Cow. 591 ; Van Epps v. Van Deusen, 4 Paige, 64 ; Van Duzer v. Van Duzer, 6 Paige, 366. See also Red- field's n. to Story Eq. Juris. § 1361 ; Chambers v. Perry, 17 Ala. 726. [554] THE GENERAL DISABILITIES OF INFANTS. *518 *PAET V. *518 INFANCY. CHAPTER I. THE GENERAL DISABILITIES OF INFANTS. All persons are infants, in legal contemplation, until they have arrived at majority. The period of majority differs in different States and countries ; but this general principle remains the same. By the civil law, full majority was not attained until the person had completed his twenty-fourth year ; he was then said to be loerfectce cetatis — cetatis legitimce} This period was likewise adopted in France (though it was afterwards changed), and it prevails still in Spain, Holland, and some parts of Germany.2 By the French civil code, the age of full capacity is twenty-one years, except that twenty-five years is the majority for contracting marriage without paternal con- sent, by the male, and twenty-one by the female.^ The law of Scotland adopts the age of twenty-one.* Among the Greeks and earl}- Romans, women were never of age, but subject to perpetual guardianship, except as wives; this gradually changed, and the civil law, as it stood in the time of Justinian, permitted females as well as males to attain their majority at twenty-five.^ * The common law of England, from the remotest * 519 times, has fixed twenty-one as the period of absolute • 1 Burge Col. & For. Laws, 113. 2 lb. 114. 3 Code Civil, §§ 145, 488; 2 Kent Com. 233. * Ersk. Inst. b. 1, tit. vii. ; 1 Bl. Com. 464. 5 Inst. 1, 23, 1 ; 1 Bl Com. 464. [555 ] * 5 1 9 INFANCY. majority for both sexes ; or, to be more exact, an infant at- tains full age on the beginning of the day next preceding the twenty-first anniversary of his birth. ^ The same rule is ap- plied in most parts of the United States, though, in some of the States, females have an enlarged capacity to act at eigh- teen.2 Under the statutes of Vermont, Ohio, and Illinois, and some other Western States, females are deemed of age at eighteen.^ The code of Louisiana follows common-law, not civil-law, principles, and adopts twenty-one as the limitation for both sexes.* Thus arbitrary is the law Avhich fixes the period of majority ; nature assigning no precise and uniform period at which the disability of infancy shall cease, yet clearly indicating that there must be some such period. A man born the first day of February, 1600, after eleven o'clock at night, was adjudged in England to be of full age after one o'clock on the morning of the last day of January, 1621.^ This is because the common law makes no allowance for fractions of a day. But the civil law, in order to secure to the person the full protection afforded on account of his minority, did not hold the commencement of the day to be its completion, if injurious to his interests.^ In some instances,. the civil law permitted the State or sovereign to grant veriia cetatis to full-grown persons who stood in need of it, and thus to place them constructively on the footing of infants ; but nothing' of the sort is recognized at common law.' * 520 * The principle of an enlarging capacity in infants has been incidentally noticed. It is reasonable to suppose that they who are constantly growing, become natu- rally competent for certain purposes long before they attain complete majority, and young men and women may well be 1 2 Kent Com. 233; 1 Bl. Com. 463; 1 Salk. 44; Ld. Rayra. 480, 1096; 3 Wils. 274 ; Hamlin v. Stevenson, 4 Dana, 597 ; State v. Clarke, 3 Harrlng. 557 ; Wells V. Wells, 6 Ind. 447. ^ 2 Kent Com. 283. See Crapster v. Griffith, 2 Bland Cli. 5. 3 Sparhawk 1-. Buel, 9 Vt. 41 ; Stephenson v. Westfall, 18 111. 209. 4 Louisiana Code, arts. 41, 93. This was the long-settled rule likewise in Texas. Means v. Robinson, 7 Tex. 502. 5 Fitzhue v. Bennington, 6 Mod. 259 ; 1 Salk. 44, and citations in last section. And see 1 Jarm. Wills, Eng. ed. 18G1, 39 ; Met. Contr. 38. Judge Redfield dis- sents from this rule. See 1 Redf. Wills, 18-20. 6 J. Voet, lib. 4, tit. 4, n. 1. '' See 1 Burge Col. & For. Laws, 116, 117. [556] THE GENERAL DISABILITIES OF INFANTS. * 5'20 allowed the exercise of more discretion than babes. Hence, we find that infants of suitable age are allowed to contract a valid marriage ; that males of the age of fourteen and up- wards, and females at the age of twelve, could once dispose of personal estate by will, and at fourteen may still choose or nominate their own guardians ; that children of discretion have a voice in determining the right of custody and control. But not until attaining majority could a person at the com- mon law convey, lease, or make contracts in general which would bind him ; and the foregoing must then be considered as among the exceptions to the rule that persons are legally incapable so long as they are minors.^ Legislative emancipation has existed in Louisiana. In the case of an emancipated minor under such statutes, by which he is relieved from the time prescribed by law for attaining the age of majority, he is invested with all the capacities in relation to his property and obligations, which he would have, had he actually arrived at the age of twenty-one years. And he may be appointed administrator of an estate.^ But the right of legislative emancipation seems never to have been distinctly admitted at the common law in any such sense. Supposing a conflict of laws should arise over the contract of an infant by reason of the period of majority being differ- ently assigned by the law of the domicile of his origin and that of his actual domicile, or of the situation of real property, or of the place where he has entered into a contract. The rules for such cases are these : First, that the actual domicile will be preferred to the domicile of birth. Secondly^ that the law of situation of real * property must pre- * 521 vail over that of domicile. Tliirdly, that the law of the place where a contract is made must prevail over that of domicile.^ The right of action for the recovery of real estate belonging 1 Co. Litt. 78 6, 89 h, and Harg. note. As to the privilege of wills, see stat. 1 Vict. c. 26, § 7 ; infra, p. 524. 2 Succession of Lyne, 12 La. Ann. 155. As to emancipation of a minor in our usual sense, see su/ira, p. 367. 3 Male V. Roberts, 3 Esp. 163 ; 1 Burge Col. & For. Laws, 118 et seq. ; Story Confl. Laws, §§ 75, 82, 332; Thompson v. Ketcham, 8 Johns. 189; Hierstand v. [557 ] * 521 INFANCY. to an infant will be governed, not by the law in force when the right of action accrued, but by the law in force when the infant became of age.^ Next, as to the infant's right of holding office. There are numerous old cases to be found in tlie books where an infant has been adjudged capable of holding offices that involve no pecuniary or public trust, and require only moderate skill and diligence ; such as the office of jDark-keeper, forester, sheriff, and jailer ; though on the ground apparently that such offices formerly were capable of grant, and the grantees had the power to act by deputy. ^ But the modern doctrine seems to be clear that no office of pecmiiary and public responsibility can be conferred upon an infant ; not so much because of mental incapacity on his part, as for the very good reason that a person who is not legally responsible for the duties of his office cannot be, in point of law, a proper person to exe- cute them. A public office which requires the personal re- ceipt and disbursement of money is not then to be filled Ijy an infant.^ Nor can an infant act as administrator, executor, or trustee ; nor by his concurrence (in the absence of fraud on his part) sanction a breach of trust.'* He cannot be a guar- dian, an attorney under a power (except to receive seisin), a bailiff, a factor, or a receiver.^ The service of a notice of replevy by an infant is, in Eng- land, illegal and void ; and it would appear that he cannot be sheriff's officer.^ But in New Hampshire, it is held that an infant may be deputed to serve and return a particular * 522 writ ; on the ground * that while offices where judg- Kuns, 8 Blackf. 345 ; Saul v. ffis Creditors, 17 Martin, 597 ; 2 Kent Com. 233, n. ; Huey's Appeal, 1 Grant (Penn.), 51; Wharton Confl. § 112. 1 Gilker v. Brown, 47 Mis. 105. ■- Bac. Abr. Infancy and Age (E) ; 3 Mod. 222; Young v. Fowler, Cro. Car. 555 ; Macphers. Inf. 448. * Claridge v. Evelyn, 5 B. & Aid. 81. See Crosbie v. Hurley, 1 Alcock & Napier, 431. * Macphers. Inf. 449 ; Wilkinson v. Parry, 4 Russ. 272. But though wrongly appointed, he will be liable to account for money received by him after reacliing majority. Carow v. Mowatt, 2 Edw. Ch. 57. 5 Macphers. Inf. 448, 449 ; Co. Litt. 3 b, 172. •5 Cuckson V. Winter, 2 M. & Ry. 306. [ 558] THE GENERAL DISABILITIES OF INFANTS. * 522 ment, discretion, and experience are essentially necessary to the ]i roper discharge of the duties the}- impose, are not to be intrusted to infants, offices may be held which are merely ministerial, and require nothing more than skill and diligence.^ But a distinction is properly taken between the case of officers of justice ordinarily liable for false return, misfeasance, and the like, and those who have no such lia- bilit}' ; and for this reason, while in Vermont, an infant may serve a particular writ, he cannot be specially authorized to serve mesne process by the magistrate.^ In ancient times minors appear to have frequently sat in the British parliament. Thus it is related that a son of the Duke of Albemarle took part in debate when only of the age of fourteen ; and history states that about the 10th James I. there were fort}* members not above twenty 3-ears of age, and some not above sixteen.^ But by statute it is now provided that an infant cannot sit in the House of Lords, or vote at an election for a member of the lower house, or be elected.* There are provisions in the Constitution of the United States and of the different States, adopted undoubtedly be- cause it was considered contrary to sound public policy to commit any offices requiring considerable skill and prudence, not to say pecuniary and public responsibility, to the young and immature. By the Constitution of the United States, no person can be President who has not attained the age of thirty-five years ; nor a senator, who is under the age of thirty years ; nor a representative in congress who is not twenty-five years of age. Corresponding laws abound in the different States as to the eligibility of local officers. So is the disqualification to vote universally applied by our laws to minors, and restrictions upon the right of suffrage may extend even further.^ * The true principle to be extracted from the au- * 523 thorities seems therefore to be that the court will 1 Moore v. Graves, 3 N. H. 408. But see Tyler v. Tyler, 2 Root, 519. 2 Barrett v. Seward, 22 Vt. 176 ; Harvey v. Hall, ib. 211. 3 See Macphers. Inf. 449, n. ; 1 Pari. Deb. 420, notes. M & 8 Will. 3, c. 25. 8 The officer wiio usually administers the oath of office cannot refuse to do so on such grounds. People v. Dean, 3 Wend. 438. [559] * 523 INFANCY. inquire whether an infant, as such, is by law capable of dis- charging suitably, faithfully, and efficiently the duties of a particular office, and so as to leave open all the usual reme- dies to others ; and this is a proper rule of guidance, the statutes being silent, rather than ancient precedents laid down as to particular offices in times when they were trans- missible in families and mere sinecures.^ There are, undoubtedly, certain offices which an infant may properly hold. And the legislature is competent to establish an earlier or later j)eriod at which persons shall be deemed of full age for certain purposes. Hence in Massachusetts, under a law fixing eighteen years as the age for military duty, and empowering an infant at that age to enlist of his own accord, and without the parent's assent, in the militia, it is held that he may be elected company clerk, or even, as it would appear, a commissioned officer of the company .^ Infants who have arrived at sufficient maturity in years and understanding are capable of committing crimes ; and it is said that they cannot plead in justification the restraint of a parent, as married women can that of the husband; although, as we presume, duress or compulsion might properly be set up in defence, wherever a j^oung child is indicted and tried for a crime. The period of life at which a capacity of crime exists is determined by law to a certain extent ; for a child under seven is conclusively incapable of crime, one between seven and fourteen only prima facie so, and one over fourteen prima facie capable like any other.^ An exception to this rule is usually stated in certain cases' of physical impotence ; for it is argued that a boy under fourteen years of age * 524 is physically undeveloped, and therefore * cannot be 1 For some of the old decisions as to wliat offices an infant might or might not hold, see Bac. Abr. Infancy and Age (E) ; also Moore v. Graves, 3 N. H. 408, passim. ^ Dewey, Petitioner, 11 Pick. 265. See Hands v. Slaney, 8 T. R. 578. 3 1 Bish. Crim. Law, § 460 ; 1 Russ. Crimes, Grea. ed. 2 ; Marsh v. Loader, 14 C. B. N. s. 585. The text-writers have said that an infant can never plead constraint of the parent, but this may be doubted. See Humphrey v. Douglass, 10 Vt. 71 ; Commonwealth v. Mead, 10 Allen, 398; State v. Learnard, 41 Vt. 585. [560] THE GENERAL DISABILITIES OF INFANTS. * 524 legally guilty of rape or similar crimes.^ Incapacity for committing a crime might properly be considered in con- nection with incapacity of criminal intent ; and yet the later rule of Ohio and some other States seems the more correct one, which is to reject in such case any doctrine of conclusive j)resumption of incapacity, and allow evidence of criminal intent to be furnished.^ But investigations on this point might be held contra bonos mores. The general rule is that capacity for crimes in persons above the age of seven years is a question of fact ; the law assuming prima facie incapacity under fourteen, and capacity over fourteen ; but subjecting that assumption to the effect of proof as to the real fact.^ Where a statute creates an offence, infants under the age of legal capacity are not presumed to have been included ; yet where an act is denounced as a crime, even felony or treason, it extends as well to infants if above fourteen years, as to others.* An infant may be indicted for obtaining goods by false pretences.^ He is liable to bastardy process.^ And, follow- ing the general principle already announced, children less than -fourteen have been convicted for arson and murder, the prw? a /aci'g presumption of incapacity being overcome.^ But a child less than seven cannot be indicted for nuisance, though owner of the land.^ And it is reasonable to add that the evi- dence of malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction.^ An infant, it is held in Tennessee, may make a criminal complaint, and be what is known as the prosecutor.^*^ 1 1 Bish. Crim. Law, §§ 466, 672, and cases cited ; State v. Handy, 4 Harring. 566 ; Eeg. v. Phillips, 8 Car. & P. 736. ' 2 Williams v. State, 14 Ohio, 222 ; People v. Randolph, 2 Parker, 174 ; Com- monwealth V. Green, 2 Pick. 380. =* State V. Learnard, 41 Vt. 585. * 1 Hawk. 1 ; 4 Bl. Com. 23 ; 1 Bish. Crim. Law, § 462. * People V. Kendall, 25 Wend. 399. 6 Chandler v. Commonwealth, 4 Met. (Ky.) 66. ■J See 4 Bl. Com. 23, 24; 1 Bish. Crim. Law, § 464, and cases cited. 8 People V. Townsend, 3 Hill, 479. 9 See 4 Bl. Com. 24 ; Commonwealth v. Mead, 10 Allen, 398 ; Stephenson v. State, 28 Ind. 272. i" State V. Dillon, 1 Head, 389. 36 [ 561 ] * 524 INPANCY. The age at which persons may dispose of their property, real or personal, by last will and testament, is now deter- mined by statute in England, and in most parts of the United States. In England, the modern statute 1 Vict. c. 26, * 525 § 7, provides that * no will made by any person under the age of twent3^-one years shall be valid. This went into effect in 1838.^ And the provisions of this statute have been substantially enacted either before or since in most of the American States ; so that the policy of the present day may be said to exclude ^he testamentary capacity of all in- fants.^ Nor is this unjust ; for the law itself draws up as good a will for children as they are likely to make for them- selves. But the ancient rule was otherwise : namely, to the effect that males at fourteen and females at twelve might make wills of their personal property ; thus conforming to the older rule of the civil and canon law.^ And such, as we have seen, was the age when a testamentary gu^'dian could be appointed. But though no objection was admissible to the probate of wills in the ecclesiastical courts, merely for want of age, yet if it could be shown that the testator was not of sufficient discretion, whether of the age of fourteen, or four and twenty, that would overthrow the testament.* This always operated to discourage such wills from being made. And yet the objection was not insuperable; for there is a clear instance on record where an infant sixteen years of age made a testa- ment in favor of his guardian and schoolmaster, which was established by evidence of the child's capacity and free will.^ The English text-writers, with reference to the old law, have laid it down that express approval of a former Avill after the infant had accomplished the years of fourteen or twelve, would make it strong and effectual.'' But as concerns the 1 See also 20 & 21 Vict. c. 77. 2 1 Redf. Wills, 15-18; 4 Kent Com. 506, 507. 3 1 Wms. Ex'rs, 15 ; 1 Redf. Wills, 15-17. But there are some irreconcilable opinions on the subject to be found in the old books. See Co. Litt. 89 b, Mar- grave's note. * 2 Bl. Com. 497 ; 1 Wms. Ex'rs, 15. 5 Arnold v. Earle, 2 Cas. temp. Lee, 529. « 1 Wms. Ex'rs, 16; Swinb. pt. 2, § 2, pi. 7 ; Bac. Abr. Wills, B. [562] THE GENERAL DISABILITIES OF INFANTS. * 525 later statutes, if not as a general principle for modern times, it appears * pretty clear that where a will is * 526 required to be in writing, and executed before wit- nesses, in order to be valid, and is thus executed before the testator arrives at the required age, it cannot be rendered valid after the testator arrives at such age, except by republication with all the usual formalities.^ And even the old books admit that the mere circumstance of an infant having lived some time after the age when he became capable of making a will cannot alone give validity to one made during his inca- pacity.2 The maxims of the older law on this subject adhere some- what to American jurisprudence ; for we find that in many States a distinction is still made between personal and real estate as to the right of an infant to dispose of the property by will.2 Infants may be admitted to testify in the courts, if of suffi- cient understanding. There is no precise age at which the law excludes them on the conclusion that the}^ are mentally and morally incompetent. By the common-law rule, every person over the age of fourteen is presumed to have common discretion and understanding until the contrary appears ; but under that age it is not so presumed ; and the court will, therefore, make inquiry as to the degree of understanding 1 1 Redf. Wills, 19. 2 Herbert v. Torball, 1 Sid. 162 ; Swinb. pt. 2, § 2, pi. 5 ; 1 Wnis. Ex'rs, 16. •* Thus in Rhode Island, Virginia, Arkansas, and Missouri, the age for mak- ing wills of real estate is fixed at twenty-one, and for disposing of personalty in the same manner at eighteen ; and in Connecticut at twenty-one for real estate, and seventeen for personalty. Among the States where the right to dispose of estate, both real and personal, is now limited to persons of full age, are Massa- chusetts, Vermont, New Hampshire, Maine, Ohio, Indiana, New Jersey, Ken- tucky, Virginia, Pennsylvania, Delaware, and Michigan. In some States, a distinction is made between males and females as to testamentary capacity, and tlie latter may make wills, as in Vermont and Maryland, at eigliteen. In New York and Illinois, the principle is to discriminate between real and personal estate, and between males and females ; and while as young as sixteen a female in the former State may make a valid will of personalty. See 1 Redf. Wills, 18, n. ; 4 Kent Com. 506^ 507 ; Williams v. Heirs, Busbee, 271 ; Davis v. Baugh, 1 Sneed, 477 ; Moore v. Moore, 23 Tex. 637 ; Posey v. Posey, 3 Strobh. 1G7 ; Corrie's Case, 2 Bland Ch. 488. [ 563 ] * 526 INFANCY. which the child offered as a Avitness may possess. But this preliminary examination, which is made by the * 527 judge at discretion, is to be * directed to the point whether the witness comprehends the solemn obliga- tion of an oath ; and if the child appears to have sufficient natural intelligence to distinguish between good and evil, and to comprehend the nature and effect of an oath, he is an admissible witness.^ In Indiana, a statute provides that all children over the age of ten shall be presumed to be competent. And a child under ten years of age was deemed competent to testify, whose answers when she was examined by the court disclosed that, though she was ignorant of the nature of the punishment for false swearing, yet, she com- prehended the obligations of an oath, and believed that any deviation from the truth, while under oath, would be followed by apj)ropriate punishment.^ Of the capacity of such wit- nesses for comprehending the matter as to which they 1 3stify, of the strength of the memory, and in general as*to the weight which may be attached to their testimony in any particular state of facts, a jury should make their estimate carefully. Children have been admitted to testify at the early age of seven, and even of five ; but the dying declarations of a child only four years old were once ruled out,^ for the reason that, however precocious the child's mind, she could not have had that idea of a future state which is necessary to make such declarations admissible.^ Different systems of religious edu- cation render the judicial test in this respect far from precise ; for while there are cases where the court has put off a trial, in order to specially instruct an infant witness as to the nature and solemnity of an oath, this practice is not of late years strongly countenanced ; the opinion gaining ground that the effect of the oath upon the conscience should arise * 528 from religious * feelings of a permanent nature and 1 1 Greenl. Evid. §367; 2 Russ. Crimes, 590; Rex v. Brazier, 1 East P. C. 443; State v. Whittier, 21 Me. 341. 2 Blackwell v. State, 11 Ind. 196. a Rex V. Pike, 3 Car. & P. 598 ; Rex v. Brazier, 1 East P. C. 443. * Rex V. Pike, 8 Car. & P. 598. And see Rex v. Brazier, 1 East P. C. 443, 1 Greenl. Evid. § 367; Comnionwealtii v. Hutchinson, 10 Mass. 225. [564] THE GENERAL DISABILITIES OF INFANTS. * 528 gradual growth.' But in cases where the intellect is suf- ficiently matured, but the education only has been neg- lected, it appears that a postponement of the trial might properly be asked.^ On the principle that chancery is bound to see that an in- fant litigant's rights and interests are protected, not only is an unwilling infant not compellable to testify in his suit, but his deposition, though given freely on his part, may be suppressed, at the discretion of the court, as containing admissions un- favorable to his cause.^ With respect to the marriage settlements of infants, there was formerly considerable controversy. For, on the one hand, it was urged that infants were in general incapable of entering into valid contracts with respect to their property ; on the other, that since infants might make a valid contract of marriage, they ought to be able to arrange the prelimi- naries. At an early period the opinion prevailed in England, that the marriage * consideration communi- * 529 cated to the contracts of infants, respecting their 1 Rex V. White, 2 Leach C. C. 48, n. ; 1 Greenl. Evid. § 367 ; Rex v. Wil- liams, 7 Car. & P. 320 ; Regina v. Nicholas, 2 Car. & K. 246. 2 Per Pollock, C. B., Regina v. Nicholas, ib. With regard to the weight and effect of the testimony of children, Blackstone observes, that when the evidence of children is admitted, " it is much to be wished, in order to render the evi- dence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact ; and that a conviction should not be grounded on the unsupported accusation of an infant under j-ears of discretion." 4 Bl. Com. 214. To this Mr. Phillips replies that in many cases, undoubtedly, the statements of children are to be received with great caution ; yet that a prisoner may be convicted upon such testimony alone and unsup- ported ; and that the extent of corroboration necessary is a question exclusively for a jury. It may be observed that the preliminary inquiry as to the com- petency is not alwaj's of the most satisfactory description, and is such that a child might upon slight practising of the memory appear well qualified. Tlie severest test appears in the examination wliich follows ; and as Mr. Phillips well concludes, " Independently of the sanction of an oath, the testimony of children, after they have been subjected to cross-examination, is often entitled to as much credit as that of grown persons ; what is wanted in the perfection of tlie intel- lectual faculties is sometimes more than compensated by the absence of motives to deceive." 1 Phil. Evid. 9th ed. 6, 7. 3 Serle v. St. Eloy, 2 P. Wms. 386 ; Napier v. Effingham, 2 P. Wms. 403 ; Moore v. Moore, 4 Sandf Ch. 37. But see Walker v. Thomas, 2 Dick. 781 ; Bennett v. Welder, 15 Ind. 332. [ 565 ] * 529 INFANCY. estate, an efficacy similar to that which the law stamps upon marriage itself; and Lords Hardwicke and Macclesfield con- tributed to strengthen it, by maintaining that the real estate of an infant would be bound by a marriage settlement.^ Lord Northington later held to a different opinion ; and Lord Thur- low overturned the doctrine altogether, boldly declaring that the contracts of male and female infants do not bind their estates, and that consequently a female infant cannot be bound by any articles entered into during minority, as to her real estate ; but may refuse to be bound, and abide by the interest the law casts upon her, which nothing but her own act after the period of majority can fetter or affect.^ Other distinguished equity jurists, including Lord Eldon, subsequently expressed their approval of Lord Thurlow's decision.^ And the rule became settled within the last forty years, that the real estate of a female infant was not bound by the settlement on her marriage, because her real estate does not become by the marriage the absolute property of the husband, although by the marriage he takes a limited interest in it.^ So was it decided that neither the approbation of the parents or guardians, nor even of the Court of Chancery, independently of positive statute, would make the infant's settlements binding.^ The inconvenience of such a state of things called for statute remedy ; and in 1855 an act was jjassed which * 530 enabled male * infants not under twenty, and female infants not under seventeen, with the approbation of the Court of Chancery, to make valid settlements of all their property, real or personal, and whether in possession, rever- 1 Harvey v. Ashley, 3 Atk 607 ; Cannel v. Buckle, 2 P. Wms. 243 ; Peachey Mar. Settl. 25 et seq. - Drury v. Drury, 2 Eden, 58 ; Durnford v. Lane, 1 Bro. C. C. 115; Clough V. Clough, 5 Ves. 716. 3 See Peachey Mar. Settl. 28 ; Milner v. Lord Harewood, 18 Ves. 275; Caru- thers V. Caruthers, 4 Bro. C. C. 509. 4 Simson v. Jones, 2 Russ. & M. 376; Campbell v. Ingilby, 21 Beav. 567 ; 25 L. J. Eq. 760. For summary of the English chancery doctrine, see Peachey Mar. Settl. 37. •^ Peachey Mar. Settl. 53, 54 ; ita. 29-43, and cases cited passim ; In re Waring, 21 L. J. Eq. 784 ; Simson v. Jones, 2 Russ. & M. 365 ; Borton v. Borton, 16 Sim. 552 ; Field v. Moore, 25 L. J. Eq. 69 ; 25 E. L. & Eq. 498. [566] THE GENERAL DISABILITIES OF INFANTS. * 530 sion, remainder, or expectancy.^ The statute has already received some interpretation in the courts ; and so much in favor was it, that almost immediately upon its passage it was acted upon in chancery. This subject has received little attention in the United States ; notwithstanding the plenary jurisdiction over the estates and persons of infants which a court of equity is admitted to exercise in many of our States. But in New York some decisions have been made, of a like tenor with those in the English chancery. Thus, in 1831, that a legal jointure settled upon an infant would bar her dower ; and, by analogy to the statute, a competent and certain provision settled upon the infant in bar of dower, to which there is no objection but its mere equitable quality .^ And in 1843, that a female infant was not bound by agreement to settle her real estate upon marriage.^ So, in Maryland, a female infant can- not bind her real estate by her marriage settlement.^ An objection to the validity of a marriage settlement, on the ground that the parties to it were infants, can only be made by the parties themselves. A trustee acting under it has no such power. ^ But since privies in blood can avoid an infant's voidable conveyance, it is held that if the infant dies after making a settlement of real estate and without having attained majority, her privies in blood may avoid the settle- ment.^ There are circumstances under which the infant's confirmation in part of a settlement will be taken as proof of an intention to confirm the whole of it.'' Marriage articles are not of themselves binding upon the infant or her privies ; but they are binding upon the 1 18 & 19 Vict. c. 43. See Peachey Mar. Settl. 45. For construction of this statute, see In re Dalton, 39 E. L. & Eq. 145; s. c. 6 De G., M. & G. 201. But see Re Catherine Strong, 2 Jur. n. s. 1241 ; 5 W. R. 107. 2 M'Cartee v. Teller, 2 Paige, 511. 3 Temple v. Hawley, 2 Sandf. Ch. 153. 4 Levering v. Levering, 3 Md. Ch. 365. See Burr v. Wilson, 18 Tex. 367. 6 Jones V. Butler, 30 Barb. 641. <> Levering v. Levering, 3 Md. Ch. 365. See Whitingham's Case, 8 Rep. 42 ; Macphers. Inf. 465 ; Brown v. Brown, L. R. 2 Eq. 481. 1 Davies v. Davies, L. R. 9 Eq. 468. As to settling a small fund to the sep- arate use of a chancery ward who marries the day after she comes of age, see White V. Herrick, L. R. 4 Ch. 345. [567] ♦ 530 INFANCY. * 531 adult Imsband.i * Yet if the infant dies under age, her privies cannot take the benefits of the proposed settlement and of the inheritance likewise ; they may have the more beneficial, and that is all.^ 1 Brown v. Brown, L. R. 2 Eq. 481 ; Whichcote v. Lyle's Ex'rs, 28 Penn. St. 73. 2 Brown v. Brown, ib. [568] ACTS VOID AND VOIDABLE. * 5S2 * CHAPTER II. 532 ACTS VOID AND VOIDABLE. One leading principle runs through all cases which relate to infants. It is that such persons are favorites of the law, which extends its protection over them so as to preserve their true interests against their own improvidence, if need be, or the sinister designs of others. This principle is found con- stantly in chancery practice. We have traced it already in eases of custody, control, and guardianship, — particularly in such as come before the American courts. It appears again in matters of legal emancipation and the minor's right to his own wages. It generally determines the result of transactions between an infant and his parent or guardian, where fraud and undue influence are suspected. It is applied when a guardian presents his accounts for allowance. We are now to see this same principle at work in the general contracts of infants, controlling and regulating them in great measure, and serving better than any other to explain the shifting and con- tradictory decisions of the English and American courts on this vexed subject. Infancy is a personal privilege, allowed for protection against imposition. The general rule of the present day is that an infant shall be bound by no act which is not benefi- cial to him.i And most contracts of infants are divided into the two classes of void and voidable ; a third class — namely, of binding contracts — still remaining for separate consider- ation in our next chap ' er. There is much confusion in the older books on the sub- ject of void and voidable contracts.^ The keenness with 1 Smith Contr. 225 ; Met. Contr. 38, 39 ; 2 Kent Com. 234. 2 See Sliep. Touch. 232; Bac. Abr. Infancy and Age (I), and cases cited in Zouch V. Parsons, 3 Burr. 1794. [ 569 ] * 532 INFANCY. * 533 which such * a distinction must always cut is an objec- tion to its practical use at the present clay; yet writers have sought to adapt the weapon to the infant's wants. They have searched for some infallible test between void and void- able. Thus Mr. Bingham, after a review of the English cases, years ago, concluded that the only safe criterion was, that " acts which are capable of being legally ratified are voidable only ; and acts which are incapable of being legally ratified are absolutely void." ^ But this was only to shift the uncertainty, and replace one difficulty by another. "What acts can be legally ratified and what cannot ? As Kent properly observes, such a criterion does not appear to free the question from its em- barrassment or afford a clear and definite test.^ Again, a Massachusetts judge of repute declared, many years ago, that the books agree in one result : that whenever the act done may he for the infant's benefit it shall not be considered void, but he shall have his election, when he comes of age, to affirm or avoid it ; and this, he adds, is the only clear and definite proposition which can be extracted from the authorities.^ Even this rule, though much better, is found difficult of application, and has been pronounced unsatisfactory in some of the later cases.* Besides, it is lacking in comprehensive- ness and scope. A more precise and intelligible test than either was that applied in one of the earlier English cases by Ch. J. Eyre, and cited since with approval by Judge Story and Chancellor Kent : ^ namely, that where the court can pronounce that the contract is for the benefit of the infant, as for instance for necessaries, then it shall bind him ; where it can' pronounce it to be to his prejudice, it is void ; and that where it is of an uncertain nature, as to benefit or prej- * 534 udice, it is void ble only, and it is * in the election of the infant to affirm it or not.^ The doctrine seems hardly capable of a closer analysis ; yet even this statement of the legal tes is by no means cle ir and conclusive. 1 Bing. Inf. 234. 2 2 Kent Com. 234. 3 Per Parker, C. J., Whitney v. Dutch, 14 Mass. 457. See 2 Kent Com. 234 ; Met. Contr. 39. 4 Met. Contr. 40; 1 Am. Lead. Cas. 4th ed. 242. 5 See United States v. Bainbridge, 1 Mason, 82; 2 Kent Com. 236; McGan V. Marshall, 7 Humph. 121. 6 Keane v. Boycott, 2 H. Bl. 511. [570] ACTS VOID AND VOIDABLE. * 53 J: The equitable doctrine differs not from the legal as to the contracts of infants. In general, when a contract may he for the benefit or to the prejudice of an infant, he may avoid it, as well in equity as at law. Where it can never be for his bene- fit, it is utterly void. Infants are favored in all things which are for their benefit, and are saved from being prejudiced by any thing to their disadvantage. For infants are by law generally treated as having no capacity to bind themselves from the want of sufficient reason and discernment of under- standing. In regard to their acts, some are voidable and some are void ; so in regard to their contracts, some are void- able and some are void.^ The liberality and freedom exer- cised in common-law courts at the present day, in shaping general doctrines with reference to infants and their con- tracts, must be ascribed in a large degree to the influence of the equity tribunals and their decisions. " In short," as Judge Story observes, " the disabilities of an infant are intended by law for his own protection, and not for the protection of the rights of third persons ; and his acts may, therefore, in many cases, be binding upon him, although the persons, under whose guardian- hip, natural or positive, he then is, do not assent to them."^ Where t'.e contract is voidable, not void, the infant has his election to avoid it either during his minority or wit'dn a reasonable time after he attains majority ; otherwise it is taken to have been con- firmed, and so binds him forever. The privilege of avoiding his acts or contracts, where these are voidable, is a privilege personal to the infant, which no one can exercise for him, except his heirs and legal represent- atives.^ Hence, the other contracting party remains bound though the infant be not ; for being an indulgence which the law allows infants, to secure them from the f aud and impo- sition of others, it can only be intended for their bene- fit, and * is not to be extended to persons of the years * 535 1 1 Story Eq. Juris. §§ 240, 241 ; 1 Fonbl. Eq. b. 1, ch. 2, § 4. And see Tur- pin V. Turpin, 16 Oliio St. 270. - United States v. Bainbridge, 1 Mason, 83. » lb. ; Keane v. Boycott, 2 H. Bl. 511 ; Met. Contr. 38 ; Smith Contr. 231. [571] * 535 INFANCY. of discretion, who are presumed to act with sufficient cau- tion and security.^ And were it otherwise, this privilege, instead of being an advantage to the infant, would in many- cases turn out greatly to his detriment. Thus, where a person of full age promises to marry a minor and afterwards breaks off the match, he may be sued by the minor upon this contract; though he would have had no cor- responding remedy against the minor for breach of promise.'-' So a third person, not a party to the contract, cannot take advantage of the infancy of the parties. Thus, in an action for seducing a servant from his master's service, the defend- ant cannot justify on the ground that the servant was an infant, and therefore not by law bound to perform his con- tract for service made with the master.^ On the same prin- ciple (connected with others), the acceptor of a bill of exchange, or the maker of a promissory note, cannot resist payment in a suit by an indorsee, though tJie indorser be an infant.^ Nor can the purchaser at a sale under an execution set up infancy to defeat prior transactions of the judgment debtor.^ Nor can the vendor avoid the infant's purchase on such a ground.^ Nor is a stranger permitted to impeach the conveyance of an infant.'^ So, too, it seems to be the settled doctrine that infancy does not protect the indorsers or sure- ties of an infant ; or those who have jointly entered * 536 into his voidable undertakings. They, * if of full age, may be made liable though the infant himself escapes responsibility.^ But third persons should be allowed to protect themselves against undue liabilities on an infant's behalf. Thus, an 1 Bac. Abr. Inf. I. 4 ; 1 Pars. Contr. 275 ; Johnson v. Rockwell, 12 Ind. 76 ; Hartness v. Thompson, 5 Johns. 160 ; Brown v. Caldwell, 10 S. & R. 114. 2 Holt V. Ward, 2 Stra. 937 ; Harvey v. Ashley, 3 Atk. 610 ; Hunt v. Peake, 5 Cow. 475; Willard t'. Stone, 7 ib. 22; Warwick v. Cooper, 5 Sneed, 659; Can- non V. Alsbury, 1 Marsh. 78. 3 Keane v. Boycott, 2 H. Bl. 511. 4 Met. Contr. 39 ; Taylor v. Croker, 4 Esp. 187 ; Nightingale v. Withington, 15 Mass. 273 ; Hardy v. Waters, 38 Me. 450 ; Frazier v. Massey, 14 Ind. 382. 5 Alsworth V. Cordtz, 31 Miss. 32. 6 Oliver v. Houdlet, 13 Mass. 237. "• Dominick v. Michael, 4 Sandf. 374. 8 Motteux V. St. Aubin, 2 Black, 1133; Jaffray v. Fretain, 5 Esp. 47 ; Hart- ness V. Thompson, 5 Johns. 160 ; Parker v. Baker, 1 Clarke Ch. (N. Y.) 136. [ 572 ] ACTS VOID AND VOIDABLE. * 536 officer selling- property at public auction is not bound to ac- cept the bid of ^an infant.^ And although infancy is a per- sonal privilege, yet the administrator of the estate of an infant may avail himself of the infancy of his intestate, to avoid or uphold a transaction to which the latter Avas a party during his life, and which remained voidable at his death. ^ And as a rule the right of avoidance passes to privies in blood or estate.^ The strong tendency of the modern cases is to regard all contracts of infants as voidable only ; and thus almost to obliterate the ancient distinction of void and voidable con- tracts altogether.* And the dicta are of frequent occurrence at the present da}^ that deeds and contracts of an infant are not absolutely void, but voidable only, unless manifestly to the infant's prejudice-; and that beneficial contracts are void- able only at most.^ Yet there are cases where a contract may still be pro- nounced absolutely void. In Regina v. iorc?, an English case, the question arose on the conviction of a servant for unlawfully absenting himself from his master's employment. Denman, C. J., in delivering the judgment of the court, ob- served : " Among many objections, one appears to us clearly fatal. He * was an infant at the time of enter- * 537 ing into the agreement which authorizes the master to stop his wages when the steam-engine is stopped working for any cause. An agreement to serve for wages may be for the infant's benefit; but an agreement which compels him to serve at all times during the term, but leaves the master free to stop his work and his Avages whenever he chooses to do so, • Kinney v. Sliowdy, 1 Hill, 544. - Counts V. Bates, Harp. 4G4 ; Parsons v. Hill, 8 Mis. 135 ; Turpin v. Turpin, 16 Ohio St. 270. 3 Dominick v. Michael, 4 Sandf. 374 ; Beeler v. Bullett, 3 A. K. Marsh. 281 ; Nelson v. Eaton, 1 Kedf. (N. Y. Sur.) 498 ; Jefford v. Ringgold, 6 Ala 544. And see supra, p. 530 ; Nolte v. Libbert, 34 Ind. 163. * See Met. Contr. 40 ; Shaw, C. J., in Beed v. Batchelder, 1 Met. 559. 5 See Bidgely v. Crandall, 4 Md. 435; N. H. M. Fire Ins. Co. v. Noyes, 32 N. H. 345; Jenkins v. Jenkins, 12 Iowa, 195; Scott v. Buchanan, 11 Humph. 468; Babcock v. Doe, 8 Ind. 110; Irvine v. Irvine, 9 Wall. 617 ; Robinson v. Weeks, 56 Me. 102. [573] * 537 INFANCY. cannot be considered as beneficial to the servant. It is in- equitable, and wholly void." ^ So an infant's bond with penalty and for the payment of in- terest is held to be void on the ground that it cannot possibly be for his benefit.^ And a bond executed by a minor as surety is void.3 So ig a mortgage of a minor's property to secure her husband's debt.'* The infant's promissory note as surety is void.-^ And so is said to be a release by a minor to his guar- dian, which affords the latter more protection than a receipt.*^ But, in Vermont, it was decided that there is no general rule exempting an infant from paying interest as necessarily injuri- ous to him." An infant's release of his legacy or distributive share is held to be void in Tennessee.^ In such cases, an in- fant is called upon to become the j)arty to some undertaking substantially for the benefit of another, and not for his own profit. The construction of a local statute will in some cases determine that an instrument is void, not voidable.^ And an assignment by the infant in trust for the benefit of creditors is held in New York void and not voidable.^'' Now it is admitted that the decisions are frequently con- tradictory and uncertain ; yet these cases of void contracts almost invariably proceed upon the doctrine that the infant's act was prejudicial to his interest ; and certainly if any con- tract can be so pronounced on mere inspection, it is a contract whereby an infant becomes bound upon another's debt. The technical form of the transaction is of less importance. * 538 There * are many cases where an infant's bonds, mort- gages, and promissory notes have been held not void, but under the circumstances of the case voidable only, as where given in ordinary transactions which may possibly 1 Regina v. Lord, 12 Q. B. 757. 2 Baylis v. Dineley, 3 M. & S. 477 ; Fisher v. Mowbray, 8 East, 330. 3 Allen V. Minor, 2 Call, 70 ; Met. Contr. 40 ; Carnahan v. Allderdice, 4 Har- ring. 99. 4 Chandler v. McKinney, 6 Mich. 217 ; Cronlse v. Clark, 4 Md. Ch. 403. See Colcock V. Ferguson, 3 Desaus. 482. ^ Maples V. Wightman, 4 Conn. 376; Curtin v. Patton, 11 S. & R. 305; Nightingale v. Withington, 15 Mass. 272. 6 Fridge v. State, 3 Gill & Johns. 115. 7 Bradley v. Pratt, 23 Vt. 378. 8 Langford v. Frey, 8 Humph. 443. 9 Hoyt V. Swar, 53 111. 134. '» Yates v. Lyon, 01 Barb. 205. [574] ACTS VOID AND VOIDABLE. * 538 prove beneficial with relation to the minor's property .^ And reference to the later cases will show that the modern rule is broadly announced in many States, that an infant's prom- issory note, his statutory recognizance and his mortgage, whether of real estate or chattels, are all voidable and not void in general.^ This we conceive to be the reasonable view of the subject ; the rule of voidable rather than void, apply- ing wherever the transaction was not from its very nature such as could be pronounced prejudicial to the infant's in- terest. It is true, however, that the decisions are not invariably placed by the court upon this ground. The rule of Perkins, which was adopted by the Court of King's Bench in the cele- brated case of Zoueh v. Parsons, is that all deeds of an infant which do not take effect by delivery of his hand are merely void, and all such as do take effect by delivery of his hand are voidable. In the one case an interest is conveyed, in another a mere power.^ This case has come down as authority for all future times ; and the rule has frequently been cited with approval, in support of mortgages, bonds, and deeds; but we question the propriety of its modern application as a principle, however useful in describing an incident. So manual delivery, it was said, must accompany the sale of an infant's personal property to render it valid."^ The real reason of such a rule might have been that solemn in- struments and transactions of grave importance ought not to be lightly entered upon ; but it is clear that * ere * 539 1 State V. Plaisted, 43 N. H. 413; Roberts v. Wiggin, 1 N. H. 73; Richard- son V. Boriglit, 9 Vt. 368 ; Palmer v. Miller, 25 Barb. 399 ; Reed v. Batchelder, 1 Met. 559 ; Patclikin v. Cromack, 13 Vt. 330 ; Coiiroe v. Birdsall, 1 Johns. Cas. 127 ; Everson v. Carpenter, 17 Wend. 419 ; Monumental, &c., Association i'. Her- man, 33 Md. 128; Dubose v. Wheddon, 4 M'Cord, 221; Little v. Duncan, 9 Rich. 55. See Adams v. Ross, 1 Vroom (N. J.), 505; Garin v. Burton, 8 Ind. G9. But see M'Minn v. Richmond, 6 Yerg. 9 ; Beeler v. Young, 1 Bibb, 619. '^ See e. g. Goodsell v. Myers, 3 Wend. 479 ; Reed v. Batchelder, 1 Met. 559 ; Patchkin v. Cromack, 13 Vt. 3-30; State v. Plaisted, 43 N. H. 413, and cases cited ; Palmer v. Miller, 25 Barb. 399; Mustard v. Wohlford. 15 Gratt. 329. 3 Perkins, § 12 ; Zouch v. Parsons, 3 Burr. 1804 ; Boot v. Mix, 17 Wend. 131 ; 2 Kent Com. 236, 237, n. ; State v. Plaisted, 43 N. H. 413 ; Conroe v. Birdsall, 1 Johns. Cas. 127. * Ponda V. Van Home, 15 Wend. 631. [575] * 539 INFANCY. the present day much of the ancient veneration for parch- ment deeds under seal had disappeared ; while the ten- dency is to place real and personal estate transactions on much the same footing, distinguishing rather by the value than the nature of the property. It is held that an infant may make a voidable purchase of land ; for, says Lord Coke, striking the legal principle with wonderful clearness for that day, " it is intended for his benefit, and at his full age he may either agree thereunto and perfect it, or, without any cause to be alleged, waive or disagree to the purchase." ^ For this reason, rather than the technical one just referred to, it may be said in general that the convey- ance of land by a minor is also voidable and not void ; though here again the courts have been prone to cite the rule of Perkins.^ But the decided cases usually presume that a valuable consideration has passed to the infant, of at least that there is nothing prima facie prejudicial to him. Lord Chancellor Sugden, in 1842, in Allen v. Allen, took occasion to review Lord Mansfield's decision in Zouch v. Parsons, and commended it as sound law in respect that a deed which takes effect b}^ deliver}^, and is executed by an infant, is voidable only ; though he intimated that his own decision might equally well be referred to the benefit arising to the hifant from the deed ; which, indeed, was one of the grounds on which Lord Mansfield had decided that celebrated case.^ So leases to infants are not absolutely void ; but voidable only.* And an exchange of property made by an infant * 540 is * voidable.^ And it is held that the infant's bond for title to real estate is voidable and not void.^ So a power of attorney to authorize another to receive seisin of 1 Co. Litt. 2 h ; Met. Contr. 40 ; Bac. Abr. Inf. 6 ; Ferguson v. Bell, 17 Mis. 347. And see Spencer v. Carr, 45 N. Y. 406. 2 Kendall v. Lawrence, 22 Pick. 540 ; Gillet v. Stanley, 1 Hill, 121 ; Bool v. Mix, 17 Wend. 119 ; Wheaton v. East, 5 Yerg. 41 ; Phillips v. Green, 5 Monr. 344 ; Eagle Fire Ins. Co. v. Lent, 6 Paige, 635 ; Pitcher v. Laycock, 7 Ind. 398. See Welborn v. Rogers, 24 Geo. 558. » Allen V. Allen, 3 Dm. & War. 340. See Co. Litt. 51 6, n. by Hargrave. * Zouch V. Parsons, 3 Burr. 1806 ; Hudson v. Jones, 3 Mod. 310 ; Taylor Landlord & Tenant, and cases cited; Griffith v. Schwendernian, 27 Mis. 412. 5 Co. Litt. 51 l> ; Williams v. Brown, 34 Me. 594. •i Weaver v. Jones, 24 Ala. 420. [576] ACTS VOID AND VOIDABLE. * 540 land for an infant, in order to complete his title to an estate conveyed to him by feoffment is voidable only ; it being an authority to do an act for his probable benefit. ^ Where a minor agrees, as the consideration of the convey- ance of land, to pay certain debts of the grantor, and after- wards does in fact pay them, it is held that the agreement constitutes a valuable consideration for such conveyance, and will support it against the grantor's creditors.^ But letters of attorney from an infant conveying no present interest are held to be absolutely null. This point was dis- cussed in Zouch v. Parsons^ and on the distinction of Perkins's rule, it was maintained that writings " which take effect " can- not include letters of attorney or deeds, which delegate a mere power and convey no interest. Whatever might be thought of this explanation the conclusion follows : " that powers of attorney are an exception to the general rule, that the deeds of infants are only voidable ; and a power to receive seisin is an exception to that. The end of the privilege is to protect infants ; and to that object all the rules and their exceptions must be directed." ^ And the English courts have uniformly held the infant's warrant of attorney void, even though exe- cuted jointly with others.'* In this country, there are deci- sions in some States to the same effect ; ^ in others, again, the rule is deemed somewhat doubtful.*^ * A power of attorney from an infant to sell a note * 541 is lately held voidable, not void, in California." In Massachusetts, an instrument of assignment, not under seal, which appoints the assignee attorney to receive the fund to 1 Met. Contr. 41 ; 1 Roll. Abr. 730 ; Zouch v. Parsons, sitpra. 2 Washband v. Wasliband, 27 Conn. 424. 3 Per Lord Mansfield, in Zouch v. Parsons, 3 Burr. 1804. And see Cum- mings I'. Powell, 8 Tex. 88. * Saunderson v. Marr, 1 H. Bl. 75 ; Ashlin v. Langton, 4 Moore & S. 719, and cases cited. 5 Lawrence v. M'Arter, 10 Ohio, 37; Waples v. Hastings, 3 Harring. 403; Bennett v. Davis, 6 Cow. 393 ; Semple v. Morrison, 7 Monr. 298 ; Pyle v. Cra- vens, 4 Litt. 17 ; Kno.x v. Flack, 22 Penn. St. 337. <^ Pickler v. State, 18 Ind. 266. But see Trueblood v. Trueblood, 8 Ind. 195. See Whitney v. Dutch, 14 Mass. 457 ; Met. Contr. 41 ; Cummings v. Powell, 8 Tex. 88 ; 1 Am. Lead. Cas. 4th ed, 242 et seq. 7 Hastings v. Dollarhide, 24 Cal. 195. 37 [ 677 ] * 541 INFANCY. his own use is not void.^ And in Maine the act of an infant in transferring a negotiable note, though his name be written by another under parol authority, is voidable only.^ The good sens,e of the rule seems to be, as a recent writer observes, that an authority delegated by an infant for a purpose which may be beneficial to him, or which the court cannot pro- nounce to be to his prejudice, should be considered as render- ino' the contract made, or act done by virtue of it, as voidable only, in the same manner as his personal acts and contracts are considered.^ And, we may add, the English and most of the American decisions do not seem to carry the rule beyond cases of the technical " warrant of attorney " to appear in court and bind the infant, as in confessing judgment. What we call " powers of. attorney " are less likely to be to the infant's prejudice. So an infant cannot bind himself by cognovit. " We come to this conclusion," said Lord Abinger, " on three grounds, each of which is fatal to the validity of the cognovit. First, it is bad because it falls within the principle which prevents an infant from appointing and appearing in court by attorney ; he can appear by guardian only. Secondly, by this means the minor is made to state an account, which the law will not allow him to do, so as to bind himself ; if an action be brought against him, the jury are to determine the reasonableness of the demand made. Thirdly, the * 542 general principle of law is, * that a minor is not to be allowed to do any thing to prejudice himself or liis rights." * A sale to an infant is a valid transfer of the property out of the vendor ; even though the infant be not bound afterwards to pay the stipulated price.^ But the courts are very reluc- tant to allow the infant to use his privilege as a means of defrauding others. And where an infant purchased and took 1 McCarty v. Murray, 3 Gray, 578. And see Kingman v. Perkins, 105 Mass. 111. 2 Hardy v. Walters, 38 Me. 450. 8 Met. Contr. 42. And see Powell i-. Gott, 13 Mis. 458. * Oliver i;. Woodroffe, 4 M. & W. 653 (1839). But the second of these grounds is not now tenable. See Williams i;. Moor, 11 M. & W. 256. 5 Crymes v. Day, 1 Bail. 320. [578] ACTS VOID AND VOIDABLE. * 542 possession of property and afterwards delivered, under his agreement with the vendor, certain other property in satisfac- tion of the purchase, it was held that he could not recover what he had delivered in an action of trover.^ So if one receives rents while an infant, he cannot demand them over again upon reaching majority .^ But it is held that receiving an order in payment does not prevent an infant from afterwards avoiding his own sale/^ An infant may in some States avoid his usurious contracts, and recover the money so lent under the count for money had and received.'* But the policy of usury is becoming aban- doned in many parts of the country. An infant may avoid his release of damages for an injur}- or an award upon a submission entered into by him. But if, upon trial, the jury shall find such damages to have been satisiied by an adequate compensation, the infant shall recover nominal damages onl}-.^ The rule is general that an infant is not bound by his agreement to refer a dispute to arbitra- tion ; nor by an award, even in his own favor ; though this is usuall}^ voidable only.*^ Amons the acts of the infants which are in the later cases regarded as voidable and not void are the following. His deed * of gift to a trustee.'^ His appeal from a * 543 justice's decision.^ Judgments against him.^ His covenant to carry and deliver money. ^"^ His indorsement of a note.^^ His agreement to convey. ^^ And, in short, deeds and instruments under seal, with perhaps the exception of powers of attorney; though it is otherwise, perhaps, if the instrument should manifestly ajipear on the face of it to be fraudulent or otherwise to the prejudice of the infant ; " and this," says 1 Farr v. Sumner, 12 Vt. 28. 2 Parker v. Elder, 11 Humph. 546. ■^ Abcll V. Warren, 4 Vt. 149. And see fiirtlier, cli. 5, post. * Millard v. Hewlett, 19 Wend. 301. » Baker v. Lovett, Mass. 78. 6 Watson on Awards, cli. 3, § 1 ; Smith Contr. 280 ; Britton v. Williams, 6 Munf. 453; Barnaby v. Barnaby, 1 Pick. 221. See Guardian and Ward, SM/)r«. ■^ Slaughter v. Cunningham, 24 Ala. 2G0. 8 Robbins v. Cutler, G Post. 173. 9 Trapnail v. State Bank, 18 Ark. 53 ; Kemp v. Cook, 18 Md. 130. 10 West V. Penny, IG Ala. 18G. n Hardy v. Waters, 38 Me. 450. 12 Carrell v. Potter, 23 Mich. 377. [579] * 54:3 INFANCY. Judge Story, " upon the nature and solemnity, as well as the operation of the instrument." ^ In Massachusetts, a contract of charter to an infant, though by parol, is voidable and not void.2 So, too, an infant's promise to pay money borrowed on joint account with another.^ And, in (3hio, a certain family arrangement between the administrator of an estate and the creditors, for payment of debts of the estate, which was clearly beneficial to the infant heir.^ It has been repeatedly decided in England, that where an infant becomes the holder of shares by his own contract and subscription he is prima facie liable to pay calls or assess- ments ; but he may repudiate that contract and subscription ; and if he does so while an infant, although he may on arriv- ing at full age affirm his repudiation, or receive the profits, it is for those who insist on this liability to make out the facts.^ An absolute gift of articles of personal property made by an infant can be revoked or avoided by him.^ And the exe- cuted contract of an infant follows the same rule as an execu- tory one ; he may rescind the one as well as the other ; the more so, where the other party can be put substantially in statu quo? But if before rescission the adult make a bona fide sale of property purchased of the minor, trover will not lie against him.^ And it is held, on the ground of an exe- cuted agency, that money belonging to an infant soldier and received from him by his brother with authority to use it for the support of their needy parents, and so used by the brother, cannot be recovered by the infant upon reaching majority.^ But, in general, an infant soldier's gift of his bounty and 1 Per Story, J., Tucker i'. Moreland, 10 Pet. 71 ; 2 Kent Com. 236, 11th ed., n., and cases cited. And see Regina v. Lord, 12 Q. B. 757. 2 Thoni})son v. Hamilton, 12 Pick. 425. 3 Kennedy v. Doyle, 10 Allen, 161. 4 Turpin v. Turpin, 16 Ohio St. 270. 5 Smith Contr. 285 ; Newry & Enniskillen R. R. Co. v. Coombe, 3 Exch. 665; London & Northwestern R. R. Co. t;. M'Michael, 5 Exch. 114. « Person v. Chase, 37 Vt. 647 ; Oxley v. Tryon, 25 Iowa, 95. ' Hill r Anderson, 5 S. & M. 216 ; Robinson v. Weeks, 66 Me. 102. 8 Carr v. Clough, 6 Post. 280 ; Riley v. Mallory, 33 Conn. 201. 9 Welch V. Welch, 103 Mass. 562. [580] ACTS VOID AND VOIDABLE. * 543 pay, even to his own father, is treated as voidable and revocable.^ * The rule is a general one that an infant cannot * 544 trade, and consequently cannot bind himself by any contract having relation to trade. " We know, by constant experience," says Mr. Smith, " that infants do, in fact, trade, and trade sometimes very extensively. However, there exists a conclusive presumption of law that no infant under the age of twenty-one has discretion enough for that purpose." ^ In Dilk V. Keighley^ the infant was a glazier, and the j)erson who sued him sought to make out that the goods furnished were in the nature of necessaries, to enable the infant to earn a livelihood ; but this plea did not avail.^ And an infant, rescinding a trading contract with anotlier, is allowed to re- cover back in an action for money had and received a sum which he had paid towards the purchase of a share in the de- fendant's trade, if without consideration and he had actually derived no benefit or profit from the business.'^ So, too, as an infant cannot trade, he cannot become a bankrupt, and a fiat against him is void.^ Yet, even in trading contracts it must not be forgotten that the current of modern decisions is to make the transactions of an infant voidable and not void. The English case of Goode V. Harrison is exactly in point ; where a person was held liable for goods supplied him as one of a partnership, on the ground that the contract was voidable, not void, and that when the infant became of age he had substantially ratified his former act. " It is clear," says Justice Bayley, " that an infant may be in partnership. It is true that he is not liable for contracts entered into during his infancy ; but still he 1 Holt V. Holt, 50 Me. 464 ; supra, p. 349. 2 Smith Contr. 278. See Why wall v. Champion, 2 Stra. 1083; Dilk v. Keigh- ley, 2 Esp. 480. 3 Dilk V. Keighley, 2 Esp. 480. « Corpe u. Overton, 10 Bing. 252 ; Holmes v. Blogg, 8 Taunt. 508. See next chapter. k Smith Contr. 282, and cases cited ; Belton v. Hodges, 9 Bing. 365. The fact that the sale of stock was made to an infant may affect the liabilities of a stock-jobber in England. Merry v. Nickalls, L. II. 7 Ch. 733. [581] * 544 INFANCY. may be a partner. If he is, in point of fact, a partner during his infancy, he may, when he comes of age, elect * 545 whether he will continue * that partnership or not. If he continue the partnership he will then be liable as a partner." ^ Nor is another principle to be lost sight of in trad- ing contracts ; namely, that fraudulent representations and acts, though made by an infant, may sometimes make his contract binding upon him, or at least afford a means of holding him answerable for the transaction ; but of this here- after. In this country, it is likewise admitted that, in point of fact, infants do sometimes trade ; ^ but that, nevertheless, their trading contracts do not absolutely bind them, being voidable at their option.^ And it is held in Massachusetts, that an in- fant cannot be compelled to pay for grain furnished for horses owned by a firm of which he was a member, though the horses Avere employed in the usual business of the firm, and though he was emancipated by his father. But we understand the principle of that decision to accord with the English doctrine ; which doctrine does not appear too far extended in South Carolina, where it was once expressly decided that a person's express or implied ratification of the partnership upon reach- ing majority makes him liable for a debt of the firm contracted during his infancy, although he was ignorant of the existence of the debt at the time of such ratification, and had, on being informed of it, refused to pay for it."* For the principle thus indicated is, that to affirm a partnership contract on reaching majority, and continuing to receive its benefits, is to affirm it with its usual inseparable incidents. Certainly, the infant member of a firm should not be permitted to derive undue advantages over his partner.^ 1 5 B. & Aid. 147. See Smith Contr. 283. 2 Whitney v. Dutch, 14 Mass. 457 ; Houston i;. Cooper, Penning. 865 ; Kitchen V. Lee, 11 Paige, 107; Beller v. Marchant, 30 Iowa, 350. 3 Mason v. Wriglit, 13 Met. 306 ; Kinnen v. Maxwell, 66 N. C. 45. 4 Miller v. Sims, 2 Hill (S. C), 479. ^ See Kitchen v. Lee, 11 Paige, 107. But see Mlnock v. Shortridge, 21 Mich. 304, where an infant refused, on majority, after the goods had been disposed of and the partnership closed, to pay the partnership note, though recognizing the partnership in some other respects. [582] ACTS VOID AND VOIDABLE. * 545 What, then, is the difference between the void and the void- able contracts of an infant ? Simply this : that the void con- tract is a mere nullity, of which any one can take advantage, and which is, in legal estimation, incapable of being- ratified ; * while a voidable contract becomes at the * 546 option of the infant, though not otherwise, binding upon himself, and all concerned with him.^ Acts or circum- stances, then, which amount to a legal ratification serve to make the voidable contract of an infant completely binding and perpetually effectual ; and this period of ratification is to be usually referred to the date when the disability of infancy ceases, and he becomes of full age, — though not always. What amounts to a legal ratification, under such circum- stances, we shall show in a subsequent chapter. On the other hand, acts or circumstances which at the proper time amount to disaffirmance will render the infant's voidable con- tract of no effect. An infant's voidable conveyance of land, which is a solemn (^)^j-^, instrument, and perhaps his deeds generally cannot be ^oU^w-il/ avoided or confirmed during his minority .^ But as to many 6"^^'^^"^^ other transactions it is different, particularly where the con- tract relates to personal property. And the American cases seem to establish clearly the doctrine that an infant's sale or exchange of personal property, or contract for such sale or exchange, may be rescinded by him at any time during minor- ity ; and when the transaction is thus avoided, the title to the property revests in the infant.^ 1 See Met. Contr. 41 ; Story Eq. Juris. § 241. 2 Zouch V. Parsons, 3 Burr. 1794 ; McCormie v. Leggett, 8 Jones, 425 ; Bool V. Mix, 17 Wend. 119; Emmons v. Murray, 16 N. H. 385 ; Cummings i". Powell, 8 Tex. 80 ; Phillips v. Green, A. K. Marsh. 87 ; Tillinghast v. Holbrook, 7 R. I. 230. 3 Grace v. Halo, 2 Humph. 27 ; Shipman r. Horton, 17 Conn. 481 ; Kitchen V. Lee, 11 Paige, 107 ; Willis v. Twombly, 13 Mass. 204 ; Carry. Clough, 6 Post. 280; Monumental Building Association v. Herman, 33 Md. 128; Riley v. Mal- lory, 33 Conn. 201 ; Briggs v. McCabe, 27 Ind. 327. [583] 547 INFANCY. *54T * CHAPTER III. ACTS BINDING UPON THE INFANT. We have seen that the general contracts of infants are either void or voidable, and that the tendency at this day is to treat them as voidable only. But keeping in view the principle that an infant's beneficial interests are to be judi- cially protected, we shall find that there are some contracts which he ought to be able for his own good to make ; some contracts of which it may be said, that the privilege of stand- ing upon a clear footing is worth more to him than the privilege of repudiation. Some such contracts there are, recognized as exceptions to the general rule ; these are neither void nor voidable, but are obligatory from the out- set, and thus neither require nor admit of ratification on the infant's part.^ The most important of this class of contracts are those for necessaries ; which in fact are so important, that they are often mentioned as the only exception to the rule of void and void- able contracts. The general signification of the word " neces- saries " has already been discussed with reference to married women ; but it is readily perceived that what are necessariies for a wife may not be equally necessaries for a child, and what are necessaries for young children may not be equally neces- saries for those who have nearly reached majority. The lead- ing principles of the doctrine of necessaries being made clear, and a rule of legal classification judicially announced, any man of ordinary intelligence knows how to apply it ; and yet juries will not and cannot always agree in their conclusions on this point, every one having some preconceived notions * 548 of his own on topics so constantly * occurring in our • See Met. Contr. 64 ; Smith Contr. 268 et seq. [584] ACTS BINDING UPON THE INFANT. * 548 eveiy-day life, and to so great an extent involving individual tastes and preferences. Plainly, it is wrong to prevent an infant from attaining objects not only not detrimental, but of the utmost advan- tage, to him, " since," as it has been observed, " otherwise he might be unable to obtain food, clothes, or education, though certain to possess at no very distant period the means of amply paying for them all." ^ Food, lodging, clothes, medical attendance, and education, to use concise words, constitute the five leading elements in the doctrine of the infant's necessaries. But, to apply a practical legal test, we must construe these five words in a very liberal sense, and somewhat according to the social position, fortune, prospects, age, circumstances, and general situation of the infant himself. " It is well established by the decisions," says one writer, " that under the denomination necessaries fall not only the food, clothes, and lodging neces- sary to the actual support of life, but likewise means of education suitable to the infant's degree ; and all those accom- modations, conveniences, and even matters of taste, which the usages of society for the time being render proper and con- formable to a person in the rank in which the infant moves." ^ Says another : " The word necessaries is a relative term, and not confined to such things as are positively required for mere personal support." ^ The language of an American judge is this : " It would be difficult to lay down any general rule upon this subject, and to say what would or would not be necessaries. It is a flexible, and not an absolute term." * Articles of mere ornament are not necessaries. The true rule is taken to be that all such articles as are purely orna- mental 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 responsible. But * 549 if they were not of this description, then the question arises whether they were bought for the necessar}^ use of the party, in order to support himself properly in the degree, 1 Smith Contr. 269. 2 lb. 269. 3 Met. Contr. 69. And see Peters v. Fleming, 6 M. & ^Y. 42. * Breed v. Judd, 1 Gray, 458, per Thomas, J. [585] * 549 INFANCY. state, and station of life in which he moved ; if they were, for such articles the infant may be made responsible.-* The result of the cases on both sides of the Atlantic seems to be that unless the articles are, both as to quality and quantity, such as must be necessaries to any one, the burden of proof lies on the plaintiff to show such a condition of life of the defendant as might raise to the rank of necessaries things which would otherwise be considered luxuries.^ In England, a pair of solitaires (or shirt fasteners) worth X25, are not, it would appear, necessaries for any infant.^ But it seems that presents to a bride, when she becomes the defendant's wife, may be necessaries.* Betting books are not an infant's necessaries.^ Nor tobacco, though for a minor sol- dier.^ Nor money paid to relieve an infant from draft for military duty.'' Horses, saddles, harness, and carriages may be necessaries under some circumstances ; but not ordi- narily ; and this is the better doctrine, English and American.^ Wedding garments for an infant who marries, are, within reasonable limits, necessaries.^ But not the treats of an undergraduate at college. ^*^ Nor, in Arkansas, as it appears, kid gloves, cologne, silk cravats, and walking-canes.^* The uniform of an officer's servant is adjudged a necessary ; but not cockades for his company.^^ ^^ insurance contract is not a necessary .^-^ But a solicitor's bill for preparing a 1 Per Parke, B., Peters i-. Fleming, 6 M. & W. 42. ^ Smith Contr. 272, 5tli Am. ed., Ravvle's n., and cases cited ; Harrison v. Fane, 1 Man. & Gr. 550 ; Wliarton v. McKenzie, 5 Q. B. 606 ; Rundel v. Keeler, 7 Watts, 239 ; Bent v. Manning, 10 Vt. 225 ; Merriam v. Cunningham, 11 Cush. 40. 3 Ryder v. Wombwell, L. R. 4 Exch. 32. * Genner v. Walker, 19 Law Times n. s. 398 ; 3 Am. Law Rev. 590. 5 lb. « Bryant v. Richardson, L. R. 3 Ex. 93, n. 1 Dorrell v. Hastings, 28 Lid. 478. 8 Harrison v. Fane, 1 Man. & Gr. 550; Grace v. Hale, 2 Humph. 67; Aaron V. Harley, 6 Rich. 26; Merriam v. Cunningham, 11 Cush. 40; Beeler v. Young, 1 Bibb, 519 ; Owens v. Walker, 2 Strobh. Eq. 289. 9 Sams V. Stockton, 14 B. Monr. 232. 10 Wharton v. McKenzie, 5 Q. B. 606 ; Brooker v. Scott, 11 M. & W. 67. u Lefils V. Sugg, 15 Ark. 137. 12 Hands v. Slaney, 8 T. R. 578 ; Coates v. Wilson, 5 Esp. 52. 13 New Hampshire Ins. Co. v. Noyes, 32 N. H. 345. See Harrison v. Fane, 1 [586] ACTS BINDING UPON THE INFANT. * 549 marriage settlement may be.^ Those * who incline to * 550 pursue the subject still further will find some interest- ing decisions as to balls, serenades, suits of satin and velvet, and doublets of fustian, among the ancient cases which have survived the fashions they describe.^ It is usual to leave the question of necessaries in each case to the jury, without very positive directions. But the dividing line between court and jury is not in this respect clearly marked, as the latest cases teach us. Ryder v. Womh- ivell lays it down that the question whether articles are neces- saries is one of fact, but, like other questions of fact, should not be left to the jury unless there is evidence on which they could reasonably find that they were.^ The immediate object of this decision was to set aside a verdict deemed improper ; as to the fitness of such a rule in its broftder appli- cation there is considerable doubt.* But it has frequently been said, that in a very clear case a judge would be war- ranted in directing a jury authoritatively that some articles, like diamonds and race-horses, would not be necessaries for any minor.^ The propriety of classing education as among the neces- saries of an infant rests rather upon respectable dicta than precedents. Lord Coke includes among necessaries for which an infant may bind himself by contract, " good teaching and instruction, whereby he may profit himself afterwards ; " Man. & Gr. 550 ; Davis v. Caldwell, 12 Cush. 512 ; Bent v. Manning, 10 Vt. 225 ; Stanton v. Willson, 3 Day, 37 ; Glover v. Ott, 1 M'Cord, 572 ; Kundel v. Keeler, 7 Watts, 2313. 1 Helps V. Clayton, 17 C. B. n. s. 553. '^ See cases eited Met. Contr. 69, 70 ; Cro. Eliz. 583. 3 Ryder v. Wombwell, L. R. 4 Exch. 32. * Of this rule, says Cockburn, C. J., of tlie Queen's Bench, still later: "I really cannot understand it, unless it means that it is to be a question of law for the judge to determine whether the articles disi)uted are, or are not, necessaries. If that is to be taiten to be law, of course I must act upon it ; but I should cer- tainly have preferred the law as it was previously understood to be, that it was for the jury to say what articles were reasonablj^ necessary with reference to the position of the defendant, the infant." Genner v. Walker, I'J Law Times, n. s. 898. * See Harrison i'. Fane, Davis v. Caldwell, and other cases, supra; Mohney V. Evans, 51 Penn. St. 80. [587] * 550 INFANCY. and the doctrine within strict limits is undoubtedly * 551 correct.^ In Vermont, it is * decided that a collegiate education is not to be ranked among those necessaries for which an infant can render himself absolutelj'' liable.^ But the court seems to make this but a irrima facie rule, and to admit that extraneous circumstances might be shown to make even this a necessary ; while a good common-school education is strongly pronounced to be such. And the judge adds : " I would not be understood as making any allusion to professional studies, or to the education and training which is requisite to the knowledge and practice of mechanic arts. These partake of the nature of apprenticeships, and stand on peculiar grounds of reason and policy. I speak only of the regular and full course of collegiate study." ^ An infaot is not liable, at common law, for the expense of repairing his dwelling-house on a contract made by him for that purpose ; although such repairs were necessary for the I)revention of immediate and serious injur}' to the house.* So timber furnished to an infant for building on his own land is not a necessary.^ The law is extremely reluctant to per- mit an infant's real estate to be encumbered in any possible way. And it is ruled that the services and expenses of coun- sel in a suit brought to protect the infant's title to his real estate cannot for similar reasons be charged against the infant on his own contract.^ But the doctrine that legal expenses cannot be charged as necessaries for an infant appears not to prevail in Con- necticut ; and the more liberal rule is asserted, that in cases where, under peculiar circumstances, a civil suit is the only means by which an infant can procure the absolute neces- saries which he requires, power cannot be denied him to make the necessary contracts for its commencement * 552 and prosecution ; * for it would be a reproach to the 1 Co. Litt. 172; 1 Si See Swift v. Bennett, 10 Ciisli. 436. 'i Ellis v. Ellis, 12 Mod. 197. * Met. Contr. 72. The learned writer quotes a diclum from 10 Mod. 07, to controvert that of 12 Mod. 197, which last held that money might be sometimes properly charged upon the infant. But the context only contemplates tlie "great difference between lending an infant money to buy necessaries, and actuallji seeing the money so laid out." Besides, it is not clear which of the two is the better dirjum. * Marlow v. Pitfeild, 1 P. Wms. 558. 5 Stnith I'. Oliphant, 2 Sandf. 306. And see Randall v. Sweet, 1 Denio, 460, per Bronson, C. J. s Watson V. Cross, 2 Duv. 147. ■J Com. Dig. Infant. But see next page. 8 Ayliff u. Archdale, Cro. Eliz. 920; Corpe v. Overton, 10 Bing. 252; Smith Contr. 281 ; Met. Contr. 75. 38 [ 593 ] * 556 INFANCY. b}'' a note not negotiable given for necessaries, there is an irreconcilable difference of opinion in the authorities ; though Story considers the weight of modern English and American authorities greatl}" in favor of holding promissory notes given or indorsed by an infant voidable only, and therefore capable of being ratified after the part}' comes of age.^ The mis- * 557 chief of holding an infant's promissory note for * nec- essaries to be worthless, is the same as in loans of money for the same purpose ; namely, that an infant is thereby allowed to getJiis supplies without paying for them. Equity influences the later cases ; that somewhat novel and yet manifestly just principle gaining ground that one who receives advantages is liable on an implied contract to furnish a suita- ble recompense. Reeve and others state the law thus: that an infant is not bound by any express contract for necessaries to the extent of such contract, but is bound only on an im- plied contract to pay the amount of their value to him ; that when the instrument given by him as security for payment is such that, by the rules of law, the consideration cannot be inquired into, it is void and not merely voidable ; that when- ever the instrument is such that the consideration may be inquired into, he is liable thereon for the true value of the articles for which it was given.^ This excellent statement could hardly be improved upon ; and, for a topic so entirely unsettled, is as well entitled to be called good law as any thing else. And, what is more, it has justice in it. The doctrine has received substantial encouragement in Massa- chusetts.^ Even a bond for necessaries has been deemed binding in a State where the statute allows its consideration to be impeached and a judgment joro tanto rendered for the amount actually due."^ And the same practical result seems to be reached in New Hampshire, and other States, so as further to give the infant's indorser or surety a remedy against him.^ 1 Story Prom. Notes, 6th ed. § 78, and cases cited. And see 2 Kent Com. 11th ed. 257 ; Bayley Bills, ch. 2, pp. 45, 46, 5th ed. See last chapter. 'i Reeve Dom. Rel. 229, 230 ; 2 Dane Abr. 364, 365 ; Met. Contr. 75. 3 Stone V. Dennis, 13 Pick. 6, 7, per Shaw, C. J. ; Earle v. Reed, 10 Met. 387. 4 Guthrie v. Morris, 22 Ark. 411. 5 M'Crillis v. How, 3 N. H. 348; Conn i-. Coburn, 7 N. H. 868; Dubose v. [594] ACTS BINDING UPON THE INFANT. *557 In a late Vermont case, this later rule received a striking illustration. An infant boarded in a country town for some twenty weeks at a reasonable price. The person to whom he was indebted owed his own adult son money, and for the convenience of the parties drew an order upon the infant, authorizing him to pay the amount of the board to his son ; which order was duly received, and the infant agreed to pay it. Soon after, by consent of the parties, this order was surrendered, and * the infant substituted in its place * 558 his promissory note. This note was negotiable, but never was negotiated ; and the holder, the adult son of the person furnishing board, brought a suit thereon. The e-\d- dence showed that the defendant's board constituted the sole consideration of the note. It was held that the consideration of the note was open to inquiry, and that, upon the facts found, the defendant was liable to the plaintiff for the full amount of the note ; and, as the court also decided, with interest.! We may here add that infancy of the maker of a note does not excuse the want of a demand on him by the holder in order to charge the indorsee. ^ There are other contracts besides necessaries which are excepted from the general rule, and are made obligatory upon the infant ; being neither void nor voidable. Thus contracts of marriage are binding, if executed ; they cannot be avoided on the ground of infancy. These have Wlieddon, 4 M'Cord, 221; Ilaine v. Tarrant, 2 Hill (S. C.),400; McMinn t-. Richinonds, 6 Yerg. 9. See contra, Swasey v. Vaiiderhcyden, 10 Johns. 33. ' Bradley v. Pratt, 23 Vt. 378. Says the learned jud<;e who gave the opinion in this case, after a full examination of the conflicting authorities as to the in- fant's liability on his promissory note for necessaries : " We may then, we think, regard the question as still in dnhio, and justifying the court in treating it as slill an open question. And being so, we should desire to put it upon safe and con- sistent ground. We are led, then, to inquire what is the true principle lying at the foundation of all these inquiries. We tliink it is, that the infant should be enabled to pledge his credit for necessaries to any extent consistent with his perfect safety. All the cases and all the elementary writers expressly hold that it is for the benefit of the infant that he should be able to contract for neces- saries ; and we see no reason why he may not be allowed to contract in the ordinary modes of contracting, so far as his perfect safety is maintained always." See Tiling v. Libbey, 10 Me. 55. - Wyraan v. Adams, 12 Cush. 210. [595] * 00 8 INFANCY. been considered in another connection.^ So, too, the general rights and liabilities of a husband as to custody, maintenance, and the like, which are incidental to the marriage relation, apply to infants as to adults.^ So is a contract for the burial of a spouse held beneficial and binding upon an in- fant.3 * 559 * The acts of an infant that do not touch his interest, but which take effect from an authority which he is by law trusted to exercise, are binding ; as if an infant executor receives and acquits debts to the testator, or an infant officer of a corporation joins in corporate acts, or any other infant does the duties of an oifice which he may legally hold.^ And his conveyance of land which he held in trust for another, in accordance with the trust, is not to be disaffirmed b}' him on the ground of infancy ; a principle which may extend some- times to conveyances from a parent made to defraud creditors.^ This seems to arise from the consideration which the law pays to the rights of others besides the infant ; or, to put it differ- ently, the doctrine may rest upon this fact, that the infant in such cases does not act as an infant. So the acts of the king cannot be avoided on the ground of infancy ; partly for the same reasons, partly as one of the attributes of his sover- eignty.^ This attribute of sovereignty may perhaps enter as an element into the public acts t)f infants in this countr}' who are improperly chosen to civil offices, yet whose official acts should be sustained. It is held that infants and married women, owning proprie- tary rights in townships, are not by reason of legal incapacity prevented from being bound by the acts of proprietors at legal meetings.' And the same is doubtless true of infant share- holders in corporations generally. Their incapacity would, ^ See Husband and Wife, ch. 1 ; Bonney v. Reardin, 6 Bush, 34. 2 Bac. Abr. Infancy and Age (B) ; 3 Burr. 1802; Met. Contr. 66. » Chappie V. Cooper, 13 :\I. & W. 259. « Met. Contr. 66. See Butler v. Break, 7 Met. 16i ; Roach v. Quick, 9 Wend. 238. 5 Prouty V. Edgar, 6 Clarke (Iowa), 353; Starr v. Wright, 20 Ohio St. 97; Elliott V. Horn, 10 Ala. 348. t* Met. Contr. 66. ' Townsend v. Downer, 32 Vt. 183. [596] ACTS BINDING UPON THE INFANT. ♦ 559 otherwise, block the wheels of business altogether in matters where it is really property and not persons that are usually represented. An infant defendant is as much bound by a decree in equity as a person of full age ; therefore, if there be an absolute decree made against a defendant, who is under age, and wdio has regularly appeared by a guardian ad litem, he Avill not be permitted to dispute it unless upon the same grounds as an adult might have disputed it ; such as fraud, collusion, or error. ^ As to the binding force of judgments at law, the rule does not seem to be equally strong.^ But where a defendant in a suit is a minor at the time of service of summons, and tlie record shows that he becomes of full age before the judgment is taken, a court is disposed to uphold the judgment unless it can be impeached for fraud.-^ It is an old and well-settled doctrine that an infant will be * bound by any act which the law would have * 560 compelled him to perform ; as if the infant make equal partition of lands, or assign dower, or release an estate mort- gaged on satisfaction of the debt.* But it is held that this rule does not apply to the case of a voluntary distribution ; for the law, though it would have coerced a distribution, might not have made just such a one as was made by the parties.^ Enlistments are binding contracts under the public stat- utes.*^ Whenever a statute authorizes a contract which from its nature or objects is manifestly intended to be performed by infants, such a contract must, in point of law, be deemed for their benefit and for the public benefit ; so that when bo?m 1 1 Dan. Ch. Practice, 205 ; Rivers v. Durr, 46 Ala. 418 ; Ralston v. Lahee, 8 Clarke (Iowa), 17 ; In re Livingston, 34 N. Y. 555. But see Tibbs v. Allen 27 111. 119 ; Driver v. Driver, 6 Ind. 286 ; Asliton v. Ashton, 35 Md. 496; infra, p. 598. 2 Supra, p. 543. ' Stupp V. Holmes, 48 Mis. 89. And see Blake v. Douglass, 27 Ind. 416. * Co. Litt. 38 o, 172 a ; 3 Burr, 1801 ; Met. Contr. 67; Jones v. Brewer, 1 Pick. 314; Bavington v. Clarke, 2 Penn. 115; Prouty v. Edgar, 6 Clarke (Iowa), 353. 5 Kilcrease v. Shelby, 23 Miss. 161. <> King V. Rotherfield Greys, 1 B. & C. 345 ; Commonwealth v. Gamble, 11 S. & R. 93 ; United States t;. Bainbridge, 1 Mason, 83, before Story, J. [597] * 560 INFANCY. iide made it is neither void nor voidable, but is strictly obli- gator}^ upon them. Yet if there be fraud, circumvention, or undue advantage taken of the infant's age or situation by the public agents, the contract could not, in reason or justice, be enforced.^ And contracts of enlistment are not b}' our statutes usually made binding upon any infants under a pre- scribed age.^ On like principles, a minor may be bound by his indentures of aiDprenticeship, executed in strict conformity to statute ; this being likewise deemed for his benefit. By the custom of London, and under the laws of some States, the covenants of the minor apprentice are obligatory upon him. But it is otherwise by the common law of England, and also under the statutes of Elizabeth, and in New York, Massachusetts, and other States. Still, although the infant is not liable for breach of his covenants, he cannot dissolve the indenture.^ The English doctrine is that indentures are so far binding, that the master may enforce his rights under them ; and * 561 the legal incidents of service * as apprentice attach to this relation ; unless the master by his own misconduct deprives the infant of the benefits of the contract, in which case the law will release the latter from his bargain.^ In this country, the cases are very common where a minor is said to be emancipated and entitled to contract for and receive his own wages. But the significance of the word " emancipation " is not exact ; and, certainly, the legal obliga- tion of the infant's contract for work is by no means com- mensurate with his right to the fruits of his own toil. His legal capacity to do acts necessarily binding does not seem to be enlarged by the circumstance that his father has given him his time ; and the general rule, independently of the appren- 1 United States v. Bainbriclge. And see Franklin v. Mooney, 2 Tex. 452. 2 Matter of Tarble, 25 Wis. 390 ; In re McDonald, 1 Low. 100. 3 Met. Contr. 66. But in some States he can. See Woodruff v. Logan, 1 Eng. 276 ; Stokes v. Hatcher, 1 South. 84 ; M'Dowles' Case, 8 Johns. 331 ; Blunt V. Melcher, 2 Mass. 228 ; Rex v. Inhabitants of Wigston, 3 B. & C. 484 ; Clark V. Goddard, 39 Ala. 164 ; infra, p. 605, and n. 4 5 Dowl. & Ry. 339; 6 T. R. 558; Cro. Jac. 494; Cro. Car. 179; Met. Contr. 66 ; Rex v. Mountsorrel, 3 M. & S. 497. [ 598 ] ACTS BINDING UPON THE INFANT. * 561 tice acts, is that an infant who contracts to perform labor for a fixed time at a definite rate, may put an end to it whenever he chooses, and claim compensation pro rata for his ser- vices.^ Infants, acting upon bad advice, have sometimes the effrontery, after rescinding a contract beneficial to them- selves, to demand wages from their employers, without the allowance of reasonable offsets; but the courts are not so foolish as to indulge them often in this respect; hence, in numerous instances, it is decided that where an infant puts an end to his contract of service, his demand for proportional wages is subject to the reasonable deduction of his employer for part-payments, board, and necessaries furnished him dur- ing the same period, even to the entire extinction of his own claim.2 And the injury sustained by his employer will be not unfrequently * taken into account.^ But the * 562 infant cannot be sued for breach of his agreement of service.* Of course he may set off his own labor against the employer's demand for necessaries.^ And the mutual under- standing of the parties as to whether the infant's services should be paid for or counterbalanced completely by his board and education, should be regarded in every case, upon examination of the circumstances.*^ A case occurred in Massachusetts a few years ago, where an infant, in consideration of an outfit to enable him to go to California, agreed, with his father's assent, to give the party 1 Person v. Chase, 37 Vt. 647 ; Van Pelt v. Corwine, 6 Ind. 363 ; Ray v. Haines, 52 III. 485 ; Davies v. Turton, 13 Wis. 185 ; Moses v. Stevens, 2 Pick. 332 ; Mason v. Wright, 13 Met. 306 ; Lufkin v. Mayall, 5 Fost. 82 ; Francis v. Felmet, 4 Dev. & Bat. 498; Judkins v. Walker, 17 Me. 38; Nashville, &c., K. \\. Co. V. Elliott, 1 Cold. 611. But see Weeks t'. Leighton, 5 N. H. 343 ; Harney v. Owen, 4 Blackf. 336; Wilholm v. Hardman, 13 Md. 140; M'Coy i-. Iluflfman, 8 Cow. 84 ; Medbury v. Watrous, 7 Hill, 110. As to the more general effect of emancipation, see supra, pp. 367-371. 2 Thomas v. Dike, 11 Vt. 273; Ho.xie v. Lincoln, 25 Vt. 206; Lowe v. Sin- klear, 27 Mis. 308 ; Stone v. Dennison, 13 Pick. 1 ; Squier v. Hydliff, 9 Mich. 274; Wilhelm v. Hardman, 13 Md. 140; Roundy v. Thatcher, 49 N. H. 526. 3 Thomas v. Dike, 11 Vt. 273 ; Hoxie v. Lincoln, 25 Vt. 206 ; Lowe v. Sin- klear, 27 Mis. 308 ; Moses v. Stevens, 2 Pick. 336. Contra, Meeker v. Hurd, 31 Vt. 639; Derocher v. Continental Mills, 58 Me. 217. * Frazier v. Rowan, 2 Brev. 47. 5 Francis i;. Felmet, 4 Dev. & Bat. 498. t> Mountain i?. Fisher, 22 Wis. 93 ; Garner v. Board, 27 Ind. 323. [599] * 562 INFANCY. furnishing the outfit one-third of all the avails of his labor during his absence, which he afterwards sent accordingly. The jury having found that the agreement was fairly made, and for a reasonable consideration, and beneficial to the infant, it was held that he could not rescind the agreement and recover the amount sent, deducting the cost of the outfit and any other money expended for him under the agreement.^ This offer, the court observed, would not place the parties in static quo, for the defendants took the risk of the hfe, health, and good fortune of the plaintiff. Under all the circumstances of the case, the sum advanced was held to be a reasonable con- sideration for a third part of the proceeds of the plaintiff's labor. It is a well-known principle that when a contract is dis- solved by mutual consent, pro rata wages may be recovered without express agreement. This applies to infants as well as adults. But a father is so far bound by his son's contract that his own claim for compensation depends upon his son's proper performance.^ The employer, on the other hand, cannot make a new contract with the minor, so as to super- sede the first one, without the assent of the father, or other person with whom the original contract was made.^ But it is held that a contract of hiring between an infant and a third person is not rendered inoperative on the infant's part merely for want of the parent's previous consent; the infant not having avoided the contract, and the parent making no effort to assert his paramount rights.* 1 Breed v. Judd, 1 Gray, 455. 2 Rogers i'. Steele, 24 Vt. 513. See Thomas v. Williams, 1 Ad. & E. 685; Roundy v. Thatcher, 49 N. H. 526. 3 McDonald v. Montague, 30 Vt. 357. And see Gates v. Davenport, 29 Barb. 160. See also Parent and Child, supra. 4 Nashville, &e., R. R. Co. v. Elliott, 1 Cold. 64. [600] THE INJURIES AND FRAUDS OF INFANTS. * 5G3 * CHAPTER IV. *563 THE INJURIES AND FRAUDS OF INFANTS. In this chapter we shall treat, firsts of injuries and frauds committed by an infant ; secondly, of injuries and frauds suffered by an infant. First, as to injuries and frauds committed by an infant. It is a general principle that infancy shall not be jDermitted to protect wrongful acts. To use the forcible expression of Lord Mansfield, the privilege of infancy is given as a shield and not a sword. 1 And minors are liable, not only for their criminal acts, but for their torts ; and must respond in damages in all cases arising ex delicto to the extent of their pecuniary means, irrespective of the form of action which the law prescribes for redress of the wrong.^ An infant is then as fully liable as an adult in an action for damages occasioned by injury to the person or property of another by his wrongful act.^ True, it has been observed, that where infants are the actors, that might probably be con- sidered an unavoidable accident, which would not be so where the actors are adults.* But, says a writer, where the minor com- mits a tort with force, he is liable at any age ; for in case of civil injuries with force, the intention is not regarded.^ * It follows from what we have said, that for an in- * 5G4 jury occasioned by an infant's negligence, he may be held civilly answerable. As where, in sport, he discharges an 1 Zouch V. Parsons, 3 Burr. 1802. 2 Met. Contr. 49 ; 1 Adilis. Torts, 731 ; 8 T. R. 335 ; 2 Kent Com. 240, 211 ; School District v. Bragdon, 3 Fost. 507 ; Bullock v. Babcock, 3 Wend. 391 ; Oliver v. McClellan, 21 Ala. 675. 8 Conklin v. Thompson, 20 Barb. 218. * Bullock V. Babcock, 3 Wend. 391. 5 Reeve Dom. Rel. 258. See Neal i-. Gillett, 23 Conn. 437. [ '>oi ] * 564 INFANCY. arrow in a school-room where there are a number of boys assembled, and thereby disables another.^ And even though under seven years of age, a child has been held liable in trespass for breaking down the shrubbery and flowers of a neighbor's garden.^ But not for turning horses which Avere trespassing on his father's land into the highway, for this does not constitute a tort.^ All the cases agree that trespass lies against an infant. And minors are chargeable in trespass for having procured others to commit assault and battery.'* But, supposing the trespass to have been committed by the express command of the father ; is the infant then liable ? So it was thought in a Vermont case, where the decision never- theless rested on a diiferent ground.^ " An infant, acting under the command of his father,' as a wife in the presence of her husband, might be excused from a prosecution for crime, if it should appear that the intent was wanting, or that he was acting under constraint ; yet he is answerable civlUter for injuries he does to another."^ And more recently this ques- tion is plainly decided in Maine, in the affirmative.''' On the other hand, it would appear that an infant cannot be held responsible for torts committed by persons assuming to act under his implied authority ; in other words, that his liability is not to be extended in any case beyond acts committed by himself or under his immediate and express direction.^ An infant in the actual occupation of land is responsible for nuisances and injuries to his neighbor, arising from the negli- gent use and management of the property.^ And ejectment may be maintained against an infant for disseisin, that being a tort. The cases on the subject of an infant's torts do not seem quite consistent, so far as decisions upon the facts are con- 1 Bullock V. Babcock, 3 Wend. 391. ^ Huchting v. Engel, 17 Wis. 231. 3 Humphrey v. Douglass, 10 Vt. 71. * Sikes V. Johnson, 16 Mass. 389 ; Tift v. Tift, 4 Denio, 177 ; Scott v. Watson, 46 Me. 362. 5 Humphrey v. Douglass, 10 Vt. 71. 6 pgr Williams, C. J., ib. 7 Scott V. Watson, 46 Me. 362. ^ Robbins v. Mount, 4 Rob. (N. Y.) 553; Burnham v. Seaverns, 101 Mass. 360. 9 1 Addis. Torts, 731 ; McCoon v. Smith, 3 Hill, 147. [ 602] THE INJURIES AND FRAUDS OF INFANTS. * 56-4 cerned ; but the principle whicli runs through tliem all serves to harmonize the apparent contradictions. This is the principle : that the * courts will hold an infant liable * 060 for what are substantially his torts, but not for mere violations of a contract, though attended with tortious results, and though the party ordinarily has the right to declare in tort or contract at his election. It must be remem- bered that,' for his contracts, the infant is not ordinarily lia- ble: for his torts he is. And this distinction is at the root of the legal difficulty. The plaintiff cannot convert any thing that arises out of a contract into a tort and then seek to enforce the contract through an action of tort. Therefore was it held that where a boy hired a horse and injured it by immoderate driving, this was only a breach of contract for which he was not liable.^ Nor was he liable for breaking a borrowed, carriage.^ And where in an exchange of horses the infant had falsely and fraudulently warranted his mare to be sound, he was protected from the consequences on the same principle.^ The English cases, decided many years ago, exhibit a strong disposition to apply this rule in favor of an infant's exemption. And the language of the court in 3Ianhy v. Saott^ with refer- ence to the delivery of goods to an infant, and suit afterwards for trover and conversion, was that the latter shall not be chargeable : " for by that means all infants in England would be ruined." ^ Says a judge, deciding a case on the same general principle, " the judgment will stay for ever, else the whole foundation of the common law will be shaken." ^ But a more equitable principle pervades the later cases. Thus in an English case, where one twenty years old hired a horse for a ride, and was told plainly that it was not let for jumping, and notwithstanding caused the horse to jump a fence and killed the animal, he was held liable for the wrong.^ And in 1 Jennings v. Randall, 8 T. R. 335. 2 Schenck v. Strong, 1 South. 87. ' Green v. Greenbank, 2 Marsh. 485; Ilowlett i'. Haswell, 4 Campb. 118 ; Morrill v. Aden, 19 Vt. 505. * 1 Sid. 129, quoted witli approbation in Jennings v. Rundali, supra. * Johnson v. Pye, 1 Keb. 905. See n. to Ilowlett v. Haswell, supra. '^ Burnard v. Haggis, 14 C. B. n. s. 45. [603 ] * 565 INFANCY. Vermont an infant was held answerable, not many years ago, where he hired a horse to go to a certain place and return the same day, then doubled the distance by a circuitous route, stopped at a house on the Avay, left the horse all night without food or shelter, and by such overdriving and exposure caused the death of the horse.i This is the Massachusetts * 566 doctrine * likewise.^ The New Hampshire rule is that the infant bailee of a horse is liable for positive tortious acts wilfully committed, whereby the horse is injured or killed : though not for mere breach of contract, as a failure to drive skilfully .3 The distinction to be relied upon is, that when property is bailed to an infant, his infancy protects him so long as he keeps within the terms of the bailment ; but when he goes beyond it, there is a conversion of the property, and he is liable just as much as though the original taking was tortious.* Chief Justice Marshall pronounces infancy to be no com- plete bar to an action of trover, although the goods converted be in the infant's possession, in virtue of a previous contract. " The conversion is still in its nature a tort; it is not an act of omission but of commission, and is within that class of offences for which infancy cannot afford protection." ^ This doctrine is approved in New York.*^ And in Maine.' So, in England, detinue will lie against an infant, where goods were delivered for a special purpose not accomxjlished.^ And the general rule seems to be now well established that an infant is liable for goods intrusted to his care, and unlawfully converted by him ; though as to what would constitute such conversion, the authorities are not agreed.^ Thus it is held that while a ship-owner cannot sue his infant supercargo for breach of instructions he may bring trover for the goods.^*^ And an 1 Towne i'. Wiley, 23 Vt. 355. • Homer v. Tliwing, 8 Pick. 492. 3 Eaton V. Hill, 50 N. H. 235. * Towne v. Wiley, supra, per Redfield, J. The rule is otherwise in Pennsyl- vania. Penrose v. Curren, 3 Rawle, 351. 5 Vasse V. Smith, 6 Cranch, 22G. 6 Campbell v. Stakes, 2 Wend. 137. '' Lewis v. Littlefield, 15 Me. 233. 8 Mills ('. Graham, 4 B. & P. 140. 9 See Story Bailments, § 50 ; 2 Kent Com. 241 ; Baxter v. Bush, 29 Vt. 465. w Vasse v. Smith, 6 Cranch, 226. [604] THE INJURIES AND FRAUDS OF INFANTS. * 566 infant, prevailing on the 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, has still been rendered liable to an action of tort for the conversion of the chattel : the original tort not having Ijeen superseded by a completed contract.^ Replevin would lie for the goods even where a suit for damages might fail.^ For stolen money and stolen goods converted into money, an infant is held liable in assumpsit,'^ Yet his * conversion of specific * 507 goods should be carefully distinguished from what is in substance a breach of his contract to sell and account for profits.* Where an action for money had and received was l^rought against an infant to recover money which he had embezzled, Lord Kenyon said that infancy was no defence to the action ; that infants were liable to actions ex delicto though not ez contractu^ 'dnd though the action was in form an action of the latter description, yet it was in jjoint of substance ex delicto.^ For embezzlement of funds, therefore, an infant may be con- sidered liable.^ And in New York, and some other States, an infant is held responsible in tort for obtaining goods on credit, intending not to pay." In New Hampshire, the general rule is stated to be, that if false representations are made by an infant at the time of his contract, he may set up infancy in defence ; but that if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful, and posi- tive wrong of itself; then, although it maybe connected with a contract, the infant is liable.^ The plea of infancy has long been considered, both in Eng- land and this country, a good defence to an action for fraud- ulent representation and deceit. Thus, the rule is, that an 1 Walker v. Davis, 1 Gray, 506. And see Fitts v. Hall, 9 N. H. 441. 2 Badger v. Pliinney, 15 Mass. 359. 3 Shaw V. Coffin, 58 Me. 254 ; Elwell v. Martin, 32 Vt. 217. * See Munger i;. Hess, 28 Barb. 75. And see Burns v. Hill, 19 Geo. 22. 6 Bristow V. Eastman, 1 Esp. 172. « Elwell v. Martin, 32 Vt. 217. 1 Wallace v. Morse, 5 Hill, 391, and cases cited. But the rule appears other- wise in Indiana. Root v. Stevenson's Adin'r, 24 Ind. 115 8 Fitts V. Hall, 9 N. H. 441 ; Prescott v. Norris, 32 N. H. 101. [605 ] * 567 INFANCY. infant who falsely affirms goods to be his own, and that he had a right to sell them, and thereby induces the plaintiff to purchase them, is not responsible.^ For the plea of infancy, as it is sometimes said, will prevail when the gravamen of the fraud consists in a transaction which really originated in con- tract.2 Still more frequently has it been held that for a false and fraudulent representation that he was of full age, * 568 there is no remedy against the infant ; whether * money were advanced or goods intrusted to him on the strength of such representation."^ The reader must reconcile the sense of these rules with some of the foregoing cases as best he may. If any thing be needed to show the inadequacy of common-law remedies for frauds and wilful misrepresen- tations, it is just such maxims as these, which have been perpetuated from the old books. Chancery, handling its weapons with more freedom, is accomplishing results in this respect more wid^y useful. The doctrine of the English equity courts appears to have been, for years, that where payment is made to one falsely representing himself as an infant, this is a discharge for the sum paid ; but that where there was no such misrepresen- tation the trustee still remains liable ; the mere belief that one was of age, of course, affording no ground of justification.'^ An English bankruptcy case of recent date carries the princi- ple still farther ; far enough to startle those who have reposed upon the assurance that the ancient judgments " will stay for ever." A young man, who from his appearance might well have been taken to be more than twenty-one years of age, encraffed in trade, and wished to borrow or to obtain credit, and for the purpose of doing so represented himself to the petitioner as of the age of twenty-two, expressly and dis- tinctly. It was held that, whatever the liability or non- 1 Grove v. Nevill, 1 Keb. 778 ; 1 Addis. Torts, GGl ; Prescott v. Norris, 32 N. H. 101 ; Morrill v. Aden, 29 Vt. -105. But see Word r. Vance, 1 Nott & M'Cord, 197. •■! Gilson V. Spear, S8 Vt. 311. 3 Johnson v. Pye, 1 Sid. 258 ; Price v. Hewett, 8 Exch. 146 ; s. c. 18 E. L. &Eq. 522; Burley v. Russell, 10 N. H. 184; Conroc v. Birdsall, 1 Jolins. Cas. 127 ; Merriam v. Cunningliam, 11 Ciisli. 40 ; Brown v. McCune, 5 Sandf. 224. * Overton v. Banister, 3 Hare, 503; Stikenian v. Dawson, 1 De G. & S. 90. [60G] THE INJURIES AND FRAUDS OF INFANTS. * 568 liahility of the infant at law, he had made himself liable in eqnit}' to pay that debt.^ But in a somewhat later case, not inconsistent with these others, it was held that an infant's settlement upon his wife might be avoided by him on arriving at majority, notwith- standing there was some evidence that he fraudulently mis- stated his age to her solicitor ; the fact being, however, that she, a widow of thirty-two, knew perfectly well * that he was under age, and was not misled by his * 569 representation. 2 Lord Justice Turner, commenting upon the case, said : " There can be no doubt that it is morally wrong in an infant of competent age, as it is in any other person, to make any false representation whatever ; but the observance of obligations or duties which rest only upon moral grounds cannot be enforced in chancery. Some wrong or injury to the jjarty complaining must be shown." He further observes : " The privilege of infancy is a legal privi- lege. On the one hand, it cannot be used by infants for the purposes of fraud. On the other hand, it cannot, I think, be allowed to be infringed upon by persons who, knowing of the infancy, must be taken also to know of the legal consequences which attach to it.''^ The result of these late English decisions is to reopen in that country the Avhole subject of an infant's liability on his fraudulent misrepresentations ; and considerable uncertainty appears to pervade the latest common-law decisions in that country, which incidentally heav upon the subject.* Whether the new or the old doctrine is in the end to prevail, it is too early yet to say ; but a collision has come, towards which equity and the common law were fast tending.^ The civil-law doctrine is clearly that if a minor represents himself of age, (md from his person he apijears to be so, any contract made with him will be valid ; and the law protects 1 Unity and Banking Association, In re, 3 De G. & J. 63 (1858). Lords Jus- tices Bruce and Turner concurred in this opinion, both expressinj^ some reluc- tance in giving tlie judgment. - Nelson v. Stocker, 4 De G. & J. 458 (1859). !* lb. p. 465. See Innian v. Inman, L. R. 15 Eq. 260. < See De Roo v. Foster, 12 C. B. n. s. 272 (1862); Wright v. Leonard, 11 C. B. N. s. 258. [007 J * 569 INFANCY. those who are defrauded, not those who commit fraud. ^ And such was the Spanish law as formerly prevalent in our South- western States.^ In a Maryland case, too, we find the sugges- tion that if an infant forms a partnership Avith an adult * 570 he holds himself * out fraudulently to the world.'^ In Texas, the fraudulent representations of an infant are binding upon him.^ Intimations are sometimes found in the courts as to gross frauds which might bind an infant.^ And in Kentucky, not long since, the court refused to alloAV a deed made by a wife and her husband to be avoided on the ground of the wife's infancy, when, to induce the innocent purchaser to take the land, she and her husband had made oath before a magistrate that to the best of their knowledge and informa- tion she was more than twenty-one years. This was a right- eous decision.^ Beyond this there seems no special authority for asserting that the American doctrine on this subject is unsettled, or that it is likely to feel the change now going on in the English courts. In fact, an equity court in North Carolina refused, not many years since, to compel specific performance of an infant's contract on the alleged ground of fraudulent misrepresentation of his father and himself, that he was of full age; following the old common-law rule instead of opposing it.' But our American statutes sometimes quicken the infant's sense of honor. Thus, in Iowa, it is enacted that one who, in selling real estate, represents himself to be of full age, and induces the grantee to buy on the strength of that representa- 1 1 Dom. pt. 1, b. 4, tit. 6, § 2. - See able discussion of this subject by Hemphill, C. J., Kilgore v. Jordan, 17 Tex. 341. There is not another American case to be found where this sub- ject is so fully discussed, in its civil law, common law, and English equity bear- ings. ^ Kemp V. Cook, 18 Md. 130. The remark is quoted as that of Lord Mans- field, in Gibbs v. Merrill, 3 Taunt. 307, but this must be an error, as no such language appears in the case referred to, while the decision went upon a totally different ground. ^ Kilgore v. Jordan, 17 Tex. 341. 5 Stoolfos V. Jenkins, 12 S. & R. 399 ; 2 Kent Com. 241. And see Sterling v. Adams, 3 Day, 411 ; Davies, J., in Henry v. Root, 23 N. Y. 544. ^ Schmitheimer v. Eiseman, 7 Bush, 298. ■J Dibble V. Jones, 5 Jones Eq. 389. [608] THE INJURIES AND FRAUDS OF INFANTS. * 570 tion cannot afterwards disaffirm his contract on the ground of infancy.' It would be well if similar statutes were enacted in every State. Secondly. As to injuries and frauds suffered by infants. Infants have a right to sue, by guardian or next friend, to recover damages for injuries done to person or property by the tortious acts of another ; and the ordinar}' principles of law, in this respect, apply to them as to adults.^ But by reason of their tender years, their rights and remedies receive a somewhat peculiar treatment in the courts, as we proceed to show. Thus it is held that a child eight years old may sue one who sells and delivers to him a dangerously explosive substance, such as gunpowder, though upon his own request.^ Such * actions are grounded upon the ignorance of the * 571 child and the negligence of those who fail to regard it. The principle involved is precisely that of the case where a man delivers a cup of poison to an idiot or puts a razor into the hand of an infant. The child uses that ordinary care of which he is presumed capable ; and though this may amount, logically, to actual carelessness as applied among adults to the ordinary transactions of life, his right of action is not thereby forfeited. Whoever, then, would avoid a suit like this, must regulate his own discretion to suit the party with whom he deals, and act at all times with befitting prudence. But there are cases Avhere the child himself may have no right of action for injuries received. As if he be technically a trespasser, and meddling with property which does not belong to him. Of this rule a recent English case affords an example, where a boy, four years old, coming from school, saw a machine exposed for sale in a public place, and by direction of his brother, seven years old, placed his fingers within the machine whilst another turned the crank and thereby crushed his fingers.* The court held that no action 1 Proutz V. Edgar, 6 Iowa, 353. 2 1 Addis. Torts, 712. 3 Carter v. Towne, 98 Mass. 567. * Mangan v. Atterton. L. R. 1 Ex. 239. And see Hughes v. McFie, 2 II. & C. 744; 33 L.J. (Ex.) 177. 39 [ 609 ] * 571 INFANCY. ^vould lie. But if the trespass of the infant does not sub- stantially contribute to produce the injury, it would appear that no defence can be legally interposed on this ground.^ Thus, the mere fact that a youth gets upon a railroad car intending to ride without paying fare is held not to bring the case within the rule of contributory negligence.^ Another and the more common class of exceptions consists of cases where the parents or other persons having charge of the child have been guilty of negligence." The rule of New York, Massachusetts, Illinois, and some other States, is that a child too young to have discretion for himself cannot re- cover if his protector fails to exercise ordinary care, but that he may if he uses such care as is usual with children of the same age, and the protector exercises ordinary care * 572 besides.^ The English rule, as formerly * understood, does not take into consideration the circumstance of the protector's negligence at all.* And in Vermont, Con- necticut, Ohio, and Pennsylvania, the child's exercise of ordinary care appears alone to be regarded.^ The latest English cases, however, lean toAvard the doctrine first above stated. Thus when the child, at the time of injury, was in the care of Ms grandmother, at a railroad station, where she had purchased tickets for both, it was held that the plaintiff was so identified with his grandmother that, by reason of her negligence, no suit was maintainable against the company.^ To take common illustrations of this doctrine. Allowing a child seventeen months old to be in the public street with- 1 See Daley v. Norwich & Worcester R. E. Co., 26 Conn. 591. 2 Kline v. Central Pacific R. R. Co., 37 Cal. 400. 3 Wright V. Maiden & Melrose R. R. Co., i Allen, 283 ; Hartfield v. Roper, 21 Wend. 617 ; Downs v. New York Central R. R. Co., 47 N. Y. 83 ; Kerr v. Forgue, 54 111. 482; Schmidt v. Milwaukie, &c., R. R. Co., 23 Wis. 186; OTlaherty v. Union R. R. Co., 45 Mis. 70 ; Baltimore, &c., R. R. Co. v. State, 30 Md. 47 ; Munn v. Reed, 4 Allen, 431 ; Lehman v. Brooklyn, 29 Barb. 236 ; City of Chicago v. Starr, 42 111. 174. 4 Lynch v. Nurdin, 1 Q. B. 29. Doubted, however, in Lygo v. Newbold, 9 Exch. 302. 5 Robinson v. Cone, 22 Vt. 213 ; North Penn. R. R. Co. v. Mahoney, 57 Penn. St. 187; Bellefontaine, &c., R. R. Co. v. Snyder, 18 Ohio St. 399 ; Daley V. Norwich & Worcester R. R. Co., 26 Conn. 591. But see Bronson v. South- bury, 37 Conn. 199. « Waite V. North-Eastern R. R. Co., 5 Jur. n. s. 936. [610] THE INJURIES AND FRAUDS OF INFANTS. *572 out a suitable attendant is held to be a want of ordinary care on the parents' part, and if the child be run over there is no remedy. 1 But there are circumstances under which it would be found that the parent or protector of such a child was exercising ordinary care ; while the child himself would be treated, doubtless, as incapable of personal negligence at so early an age, so as to defeat his right of action.^ Suffering a boy eight or ten years old to play on the street after dark is not necessarily negligence on the jDrotector's part.^ And even as to children four years of age or thereabouts, or perhaps younger, it is not expected that parents who have to labor for themselves and cannot hire nurses are to be without remedy for themselves or their children every time the child steps into the street unattended. "What would be expected of the custodians of these tender beings is a degree of care or dili- gence suitable to the capacity of the child ; in other words, ordinary care and prudence in watching and controlling the child's movements.^ As to a child some twelve years of age travelling with his mother, and injured in stepping between cars, the right to sue is not necessarily defeated for the reason that she permitted him to go into another car from that where she was sitting, and he did so.^ In fact, the circumstances of each case are fairly to be weighed by the jury. No child capable of running about can be kept tied up in the house and subjected to constant watch. The rule is reasonably and beneficially applied ; and the circumstances are in general for the jury. The principle may be further illustrated by a late Illinois case. A heavy counter, some eighteen feet long and three feet high, which had been placed across the sidewalk in one of the principal thoroughfares of Chicago, remained so for two or three weeks, when some children were climb- ing upon it and * thereby caused it to fall over. One * 573 1 Kreig v. Wells, 1 E. D. Smith, 74. 2 See Mangani v. Brooklyn R. R. Co., 38 N. Y. 455 ; Schmidt v. Milwaukie, &c., R. R. Co., 23 Wis. 186. » Lovett V. Salem, &c., R. R. Co., 9 Allen, 557. * City of Ciiicago v. Major, 18 111. 360 ; O'Flaherty v. Union R. R. Co., 45 Mis. 70 ; Baltimore, &c., R. R. Co. v. State, 36 Md. 47. 5 Downs V. N. Y. Central R. R. Co., 47 N, Y. 83. [611] * 573 INFANCY. of the children, six years old, was injured and died, and the parents sued the city, under statute, for damages. The court held, upon the state of facts before them, that the action would not lie because there was negligence shown on both sides, — on the part of the city in allowing the counter to remain in that situation, and on the part of the parents in permitting the child, at his age, to roam the crowded thor- oughfares of the city at a great distance from his home. The negligence on the part of the city was less than that attribu- table to the child's parents, and therefore there could be no recovery.^ Causa proxima non remota sjyectatur is the maxim usually applied in cases of torts, whether the plaintiff be infant or adult. But where the tort is occasioned by the negligence of one person, the infant is not debarred of his right to sue the other party who shared in it. As where a child too young to take care of himself — there being, we shall supjDose, no neg- ligence on the part of the parent — is in danger of being run oyer by a steam-engine, and some stranger catches him up, meaning to save his life, and imprudently rushes over the track and falls with the child. An accident so occasioned might, under some such circumstances, give a right of action against either the stranger or the railroad company, or against them jointly .^ While an infant is liable for torts, it does not follow that his contracts in compensation for torts are binding. In fact, his submission to an award, and notes given or money * 574 paid in pursuance * thereof, would follow the principle 1 City of Cliicago v. Starr, 42 111. 174. In this case it was further suggested that the degree of carelessness is not to bo judged from a single fatal accident ; but that the question is rather wliat would have been the course of a prudent person prior to the accident. And the habitual carelessness of the parents in allowing the child to go about unattended was considered material. But see Kerr v. Forgue, 54 111. 482, limiting the rule. Perhaps the course most consist- ent with the latest authorities is to leave the question of negligence, so far as possible, with the jury, upon the state of facts presented. 2 See North Penn. K. R. Co. v. Mahoney, 57 Penn St. 187. The views ex- pressed in this case may not meet, in all respects, the concurrence of other courts ; but the principle extracted in the text seems to the writer a correct one. [612] THE INJURIES AND FRAUDS OF INFANTS. *574 of void and voidable contracts.^ And on the other hand, where he releases or compromises for any injury himself has sustained, the same rule applies.^ The parent cannot sue, as such, for the child's injuries ; neither can he make a binding compromise, except as to his own demand upon the defendant.^ 1 Hanks v. Deal, 3 M'Cord, 257 ; Pitcher v. Turin Plank Road Co., 10 Barb. 436 ; Ware v. Cartledge, 24 Ala. 622. '- Baker v. Lovett, 6 Mass. 78. ^ See Loomis v. Cline, 4 Barb. 453 ; Passenger R. R. Co. t;. Stutler, 54 Penn. St. 375. But see Merritt v. Williams, 1 Harp. Ch. 306. [613] * 575 INFANCY. *575 * CHAPTER V. RATIFICATION AND AVOIDANCE OF CONTRACTS, That indulgence which the law allows infants, to secure them from the fraud and imposition of others, can only be intended for their benefit, and therefore persons of riper years cannot take advantage of such transactions. The infant may rescind his own deed or contract ; but the adult with whom he deals is held bound meantime, unless the transaction be void, and not voidable ; ^ or one of those contracts which bind an infant from the outset.^ But the infant may confirm his voidable contract on arriv- ing at full age ; and if he does so by such writings, words, or acts, as amount to a legal ratification, he will become liable then and thereafter. But what is in law a sufficient ratifica- tion remains to be considered. Much of the discussion on this point is now dispensed with in England, by a short statute to the effect that " no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted dur- ing 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 writing, signed by the party to be charged therewith." ^ This statute is known as Lord Tenterden's Act. Here is a clear, precise, and definite rule ; and any apparent want of equity is com- pensated by the certainty with which a very troublesome subject is managed, one which has so constantly led *o76 to unprofitable litigation. The *same or similar 1 Smith V. Bowen, 1 Mod. 2-3 ; 2 Kent Com. 236 ; Warwick v. Bruce, 2 M. & S. 205; Brown v. Caldwell, 10 S. & R. 114 ; supra, ch. 2. ■i Supra, ch. 3. 3 Stat. 9 Geo. 4, c. 14, § 5 (1828). [614] RATIFICATION AND AVOIDANCE OF CONTRACTS. *576 p^o^dsions are to be found in the laws of some of our States.^ But even statutes will raise legal difficulties. And the difficulty which arises under this particular act is to distin- guish ratification from a new promise. What is meant by a ratification in the words of this statute ? The Court of Exchequer, not many years since, admitting, in the course of argument, that the statute made a distinction between ratifi- cation and new promises, gave it as their opinion that any act or declaration which recognizes the existence of a promise as binding, is a ratification of it ; and that the statute " ratifi- cation " goes so far as to comprehend such a ratification as would make a person liable as principal for an act done by another in his name.^ And hence certain letters written by the defendant in reference to payment of his debt out of his money in the hands of a third party were held binding. More lately this definition of ratification was reconsidered by the same court in another case, where the correspondence was over a dishonored bill of exchange, and another person, not the infant, was to be primarily liable ; and the judges were divided in opinion. But the disiDosition seemed to be to define ratification anew, as a willing admission that the party is liable and hound to pay the debt arising from a contract which he made when an infant.^ Still later a man, being of age, signed the following statement at the foot of an account of the items and prices of goods furnished to liim \\\\\\q an infant by the plaintiff : " Particulars of account to the end of 1867, amounting to X162 lis. Qd. I certify to be correct and satisfactory." It was held that this was not a sufficient ratification under the statute, because these * words * 577 did not really admit the debt to be a debt existing and binding upon the defendant.^ Some statutes regard the allowance of a reasonable time 1 See Thurlow v. Gilmore, 40 Me. 378. 2 Harris v. Wall, 1 Exch. 122. 3 Mawson v. Blane, 10 Exch. 206 ; 26 E. L. & Eq. 560. See further, Smith Contr. 287. Lord Ellenborough considered it more correct to say, in general, that the infant makes a new promise after he comes of age. Cohen v. Arm- strong, 1 M. & S. 724. As to what is a sufficient compliance with the statute, see Hartley v. Wharton, 11 Ad. & EI. 934 ; Hyde v. Jolmson, 2 Bing. N. C. 778 ; Hunt V. Massey, 6 B. & Ad. 902. * llowe v. Hopwood, L. R. 4 Q. B. 1. [616] *577 INFANCY. only after attaining majority for disaffirmance of a contract made in infancy, requiring the infant both to disaffirm and to make restitution.^ Others seek to prevent sales of the minor's property for some time after he reaches majority.^ Independently of all statutes, however, the question has been asked again and again, what language and what conduct on the part of the infant attaining to majority will suffice to give binding force to his acts originally voidable. The Amer- ican cases on this point are ver}' numerous. And it must be confessed that the more this subject has been discussed, the less it appears to be understood. Two principles are evi- ■dently in conflict : the one, that an infant should be protected against his own imprudence ; the other, that bona fide cred- itors ought not to be cheated. Some cases have given more prominence to the first principle, others to the second. There cannot be much doubt that at the time Lord Tenter- den's Act was passed, the English rule was, that an infant may by his general conduct, independently of a precise prom- ise or new contract, on his part, render himself liable for his contracts made while an infant.^ The statute was passed to change this rule. On that point we need not dwell. This does not bind American courts, it is true, for they had adopted, in many instances, another rule of the common law to which they were at liberty to adhere, in spite of the later English decisions ; since it was the rule our ancestors brought over with them. Now, what is the American doctrine ? We take a case de- cided within a few years in Massachusetts, where an infant had made a promissory note, and after majority admitted several times that he owed the debt, and said he would pay it when he could. Says the court : "It has long been settled that a direct promise, when of age, is necessary to establish a contract made during minority, and that a mere acknowledg- ment will not have that effect." ^ We take still another, 1 Wright V. Germain, 21 Iowa, 585; infra, p. 586. 2 SouUier v. Kern, 69 Peon. St. 16. 3 See Goode v. Harrison, 5 B. & Aid. 147 ; Smith Contr. 283, 284. * Proctor I'. Sears, 4 Allen, 95 (1862),per Metcalf, J. [616 ] EATIFICATION AND AVOIDANCE OF CONTRACTS. * 577 decided in New York onlj a little later. Says a judge of the Court * of Appeals, after a most exhaustive re- * 578 view of the cases : " I think that the course of decision in this State authorizes us to assume that the narrow and stringent rule, formerly enunciated, that to establish the con- tract, when made in infancy, there must be a precise and positive promise to j)ay the particular debt, after attaining majority, is not sustained by the more modern decisions." ^ Time has not with us lessened the force of Chancellor Kent's observation, many years ago, that " the books appear to leave the question in some obscurity, when and to Avhat extent a positive act on the part of the infant is recj^uisite." ^ It may be remarked that a great change was gradually developed in the law of infancy, by making contracts void- able which before were deemed void.^ This might reasonably be deemed to have introduced a new element into the consid- eration of such cases ; the result tending towards freedom in the courts, and enabling them to repudiate artificial refine- ments and do substantial justice. It certainly throws upon the modern courts a greater responsibility than formerly in ruling between complete and incomplete ratification ; or (if legal precision requires another expression), in determining whether a new promise has passed from the person after attaining full age. But this change has not always been kept in view. In Xew York, the modern doctrine is that ratifica- tion or confirmation of the contract made in infancy will bind the party if it take place after his coming of age ; that a new promise, positive and precise, equivalent to a new contract, is not now essentia] ; but that a ratification or confirmation of what M^as done during the minority is sufficient to make the contract obligatory.* And it is well observed that the words "ratify and confirm"' necessarily import that there was something in existence to which the ratification or confirma- tion could attach, entirely ignoring therefore the notion that an infant's obligations or contracts were extinguished by the state of infancy.^ But it must be borne in mind that in some 1 Per Davies, J., Henry i-. Root, 33 N. Y. 545 (1865). 2 2 Kent Com. 237. 3 See ch. 2, supra. * Henry v. Root, 33 N. Y. 526. 5 ib. [617] * 578 INFANCY. other States the rule is quite different. So that we have nothing which may safely be pronounced the American doc- trine upon this subject. * 579 * It seems settled that 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 converting it to the infant pur- chaser's own use, would be sufficient ratification to bind the infant after reaching manhood. ^ As where a minor bought a yoke of oxen, for which he gave his note, and after arriving at full age converted the oxen to his own use and received the avails.2 Mere lapse of time, it is true, will not usually amount to confirmation. But a brief lapse of time in connection with other circumstances may amount to confirmation.^ And cases are not wanting to establish the position that ratification will be inferred from tacit assent under circumstances where silence is not excusable. Yet that the cases are somewhat conflicting and difficult in this respect to be reconciled, will appear from the citation of a few. In Alabama, an infant ten days before majority pur- chased a note and drew an order upon a third person in pay- ment, and received notice of non-payment. It was held in a suit several years after that his failure to renew the note and disaffirm, warranted the conclusion that he intended to abide by it.^ Still more rigidly was the same doctrine enforced in an earlier New York case.^ Part-payment, or even promise of part-payment, may operate as confirmation.'^ So may author- ity given to an agent to pay, though the agent does nothing." But declarations of affirmance by one purporting to act as the 1 See note Am. editor in 16 E, L. & Eq. 558 ; Lawson v. Lovejoy, 8 Me. 405 ; Boyden v. Boyden, 9 Met. 519; Cheshire v. Barrett, 4 M'Cord, 241 ; Boody v. McKenney, 23 Me. 517. 2 Lawson v. Lovejoy, 8 Me. 405. And see Alexander v. Heriot, 1 Bail. Ch. 223; Deason v. Boyd, 1 Dana, 45; Vandevort's Appeal, 43 Penn. St. 462; Stern v. Freeman, 4 Met. (Ky.) 309 ; Belton v. Briggs, 4 Desaus. 465. 3 Cresinger v. Welch, 15 Ohio, 156 ; Strong, J., in Irvine v. Irvine, 9 Wall. 617. * Thomasson v. Boyd, 13 Ala. 419. 5 Delano v. Blake, 11 Wend. 85. 6 Little V. Duncan, 9 Rich. Law, 55; Stokes v. Brown, 4 Chand. (Wis.) 39. 7 Orvis V. Kimball, 3 N. H. 314. [618] EATIFICATION AND AVOIDANCE OF CONTRACTS. * 579 attorney or solicitor of the late infant, do not amount to rati- fication if his authority be not proved.^ Submitting the ques- tion of liability after coming of age to arbitration does not amount to ratification .^ But letters indicating intent to * abide by a former award may ; as well as the en- * 580 joyment of its benefits.^ A promise to settle by note against a third party is held sufficient.^ So is a promise to settle by work.^ Nor do the recent cases seem to require that a promise to settle should be very precisely expressed. The mere retention of consideration money appears to amount to ratification in California.^ But this is not the general rule elsewhere.' Keeping and using an article purchased during infancy, with equivocal expressions of intention, may bind the infant so that he cannot return it afterwards to the vendor. So may a sale of the article with full knowledge of the fact of purchase.^ A verbal promise is sufficient to bind.^ A con- tract to work is ratified by continuance in the employer's service for a month after attaining full age.^*^ Plea of the execution of a note, in defence of a suit in assumpsit, is held to be confirmation of the note itself.^^ Slight words importing recognition and confirmation of the promise, have been treated as sufficient ; or, at least, as sufficient for a jury to consider. ^^ And, according to a recent decision of the Supreme Court of the United States, it is a question for the jur}' and not for the court to decide, whether the evidence submitted in an}^ case shows an affirmance or not, if there be any evidence tending to show it.^^ On the other hand are numerous decisions which seem to bear against the creditor. Says a Massachusetts judge in an 1 Carrell v. Potter, 23 Mich. 377. 2 Benham v. Bishop, 9 Conn. 330. 3 Barniiby v. Barnaby, 1 Pick. 221 ; Jones v. Plienix Bank, 4 Seld. 228. * Taft V. Sergeant, 18 Barb. 320. 5 Edgerly v. Shaw, 5 Post. 514. 6 Hastings v. DoUarhide, 24 Cal. 195. ^ Benham v. Bishop, 9 Conn. 330. 8 Shropsliire v. Burns, 46 Ala. 108. a AVcst V. Penny, 16 Ala. 186; Martin v. Mayo, 10 Mass. 137. 10 Forsyth v. Hastings, 27 Vt. 646. 11 Best V. Givens, 3 B. Monr. 72. 1- Hoit V. Underbill, 9 N. H. 436 ; Bay v. Gunn, 1 Denio, 108 ; Whitney v. Dutch, 14 Mass. 457. 13 Irvine v. Irvine, 9 Wall. 617, 628. [619] * 580 INFANCY. early case : " 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." ^ Yet the much quoted distinction there taken between "acknowledgment" that a debt is due, and verbal " ratification and confirmation " is either exceedingly subtle, or at the present. da}' frequently misapplied. The distinction further developed leads, as we find, to the conclusion * 581 that where one says he * owes the debt and has not the means of payment, but will pay as soon as able, or words to this effect, this is only an acknowledgment, and not binding.^ Such decisions do not always support the explanation sometimes given, that the American cases pro- ceed upon the ground of intention to ratify ; though there are doubtless cases which support so reasonable a view.^ What is it that suffices to take a case out of the statute of limitations? "Either an express promise to pay, or an un- qualified acknowledgment of present indebtedness; in which latter case the Icnv ivill imply a pi-omise to pay ."" ^ What is ratification of a contract? So far as a definition may be hazarded, it is a voluntary admission that one is liable and hound by the terms of an existing though inchoate or imper- fect contract. A debt is, of course, created by contract ex- press er implied. But some say that there must always be a new contract made by the minor on reaching majority. To hold that a new contract for payment is essential, differs certainly from ruling that ratification and confirmation of an existing contract binds one who was lately an infant. But once again such contracts of an infant are called void- able. Does not the term voidable imply something still dif- ferent ? something which binds until expressly repudiated? 1 Whitney v. Dutch, 14 Mass. 460, per Parker, C. J. 2 See Proctor v. Sears, 4 Allen, 95 ; Thompson v. Lay, 4 Pick. 48; Ford v. Phillips, 1 Pick. 203 ; Hall v. Gerrish, 8 N. H. 374 ; Goodsell v. Myers, 3 Wend. 479 ; Wilcox v. Roath, 12 Conn. 550 ; Chandler v. Glover, 82 Penn. St. 509. 3 See Thing v. Libbey, 16 Me. 55 ; Dana r. Stearns, 3 Cush. 372; Smith v. Kelly, 13 Met. 309. And see note to 16 E. L. & Eq. 558. 4 See Gailey v. Crane, 21 Pick. 523 ; Wakeman v. Sherman, 5 Seld. 91 ; Mar- shall, C. J., in Ciemenstine v. Williamson, 8 Cranch, 72 ; Story, J., in Bell v. Morrison, 1 Pet. 351. [ 620] RATIFICATION AND AVOID ANX'E OF CONTRACTS. * 581 And if so, how doubly inconsistent to exact a specific prom- ise to pay, over and above an admission of present indebted- ness. In truth, the law is here overburdened with its own definitions ; judicial terms, inconsistent and varied, bewilder the judicial mind ; and thankless, indeed, must be the task of refining upon distinctions which rest upon no rational basis of difference.^ * The writer makes no attempt to reconcile the * 582 numerous dicta of the courts on this important subject. They are irreconcilable. If American decisions themselves may be regarded as pointing out a general rule, it seems to be this : that the mere acknowledgment that a certain transaction constitutes a debt is insufficient to bind him lately an infant ; but that an acknowledgment to the extent that he justly owes that debt, with equivocal expressions as to some future payment, may or may not be considered sufficient, though the better opinion is in favor of their sufficiency ; that acts or omissions on his part, which are prejudicial to the adult party's interests, or evince his own intention to retain the advantages of a contract made during infancy, may be, espe- cially when reasonable time has elapsed, construed into a ratification, — the presumption of honorable motives being fair and reasonable under such circumstances ; and finally, that a distinct, unequivocal promise, verbal or written, made after attaining majority, is always sufficient, this apparently superseding the former j^romise altogether.'^ In cases of 1 Lord Kenyon seems responsible for the doctrine that tlie case of infancy differs in essence from that under the statute of limitations. He says : " In the case of an infant, I shall hold an acknowledgment not to be sufficient, and require proof of an express promise to pay, made by the infant, after he had attained that age when the law presumes that he has discretion." Thrupp v. Fielder, 2 Esp. G28. - See American cases collected in Am. editor's note to IG E. L. & Eq. 558 ; Bobo V. Hansen, 2 Bail. 114 ; Ackerman v. Bunypn, 1 Hilt. (N. Y.), 58 ; Vaughan V. Parr, 20 Ark. 600 ; Richardson v. Boright, 'J Vt. 368; Hodges v. Hunt. 22 Barb. 150; State v. Plaisted, 43 N. H. 413 ; Wright v. Steele, 2 N. H. 51; Conk- lin V. Ogborn, 7 Ind. 553; Merriam r. Wilkins, 6 N. H. 413 ; Jones v. Butler, 30 Barb. 641 ; Curtis v. Patton, 11 S. & R. 305 ; Norris v. Vance, 3 Rich. 164; Oswald V. Broderick, 1 Clarke (Iowa), 380. [621] * 582 INFANCY. donbt, moreover, it would seem to be better to treat the evidence presented as constituting facts for the consideration of the jury, rather tlian a question of law for the court to pass upon. Some cases go even farther, and require an express repudi- ation on the infant's part. Such is the principle which * 583 seems * to support some of the partnership cases already noticed,^ and it comports with the theory that such contracts are voidable. And in several recent instances the English courts have held that an infant shareholder is prima facie liable to pay calls or assessments, and must repudiate within a reasonable time after attaining manhood, or remain bound.2 But stock and partnership transactions stand upon a footing somewhat peculiar, and we are not justified in de- ducing therefrom a general principle that express repudiation is necessary in all voidable contracts of an infant ; for the deci- sions certainly do not go to this length, whatever the dida? Express acts of disaffirmance leave no doubt of intention on this point ; and they, of course, suffice to avoid the contract made during infanc3^ As in a sale where one gives notice that he considers the bargain void, and offers to return the consideration.* There are many other waj^s in which one may disavow his intention of carrying into effect the contract made during infancy, as by leaving the service of the person to whom he was engaged and going into the service of an- other, or entering lands once conveyed and conveying them anew ; but he should lose no time after reaching majority in averring his intent and pursuing his remedies. * 58-1: * A conditional promise when of age to jDcrform a contract made during minority will not sustain an ^ See Goode i'. Harrison, 5 B. & Aid. 147 ; supra, ch. 2. 2 Dublin & Wicklow R. R. Co. v. Black, 8 Exch. 181 ; 16 E. L. & Eq. 556; Smith Contracts, 285, and cases cited. 3 See Holmes v. Blogg, 8 Taunt. 39; Richardson i>. Borlght, 9 Vt. 368; Kline V. Beebe, 6 Conn. 494 ; Hoit v. Underhili, 9 N. H. 439. 4 See Willis v. Twombly, 13 Mass. 204 ; Aldrich v. Grimes, 10 N. H. 194 ; Williams v. Norris, 2 Litt. 157 ; Hill v. Anderson, 5 S. &M. 216 ; M'Gill v. Wood- ward, 3 Brev. 401. [622] RATIFICATION AND AVOIDANCE OF CONTRACTS. * 584 action thereon without proof that the condition has been fulfilled.i li' an infant makes a lease of his land (which is voidable if for his benefit, but not otherwise), and accepts rent after attaining full age, and by other slight acts affirms the con- tract, this is a ratification, and he cannot afterwards disaffirm .^ And where a minor mortgages his land, and on coming of age conveys it to another person in fee, subject to the mortgage, which he recognized in the second deed, it is held to be a ratification of the mortgage.^ Ratification of a conveyance is ratification of the mortgage made to secure payment; he cannot repudiate the one and not the other.'' " So slight acts of assent on the infant's part are held sufficient to confirm leases made by a guardian beyond the term of his authority.^ But an act of the late infant, clearly showing his intention not to be bound by his mortgage, is a sufficient avoidance of it.^ A prompt declaration of his intention to disaffirm, and a conveyance to another, will answer."" Nor even a contract of sale.^ As to the infant's mortgage, it may be further remarked that a minor cannot avoid a mortgage given to secure either real or personal property purchased by him without avoiding the sale also.^ The purchase and mortgage back constitute one transaction. And an assignment of the mortgage will carry to the assignee all the mortgagee's rights, whether the infant affirms or disaffirms. ^° The subsequent ratification of a mortgage, as of other deeds, relates back to the first 1 Proctor V. Sears, 4 Allen, 95 ; Everson i-. Carpenter, 17 Wend. 419 ; Chand- ler V. Glover, 32 Penn. St. 509. 2 Aslifield V. Asiifield, W. Jones, 157 ; Wimberley v. Jones, 1 Geo. Dec. 91. 3 Boston Bank v. Cliamherlin, 15 Mass. 220; Story v. Johnson, 2 Yon. & Coll. Exch. 607 ; Phillips v. Green, 5 Monr. 355; Lynde v. Budd, 2 Paige, 191. * Young V. McKee, 13 Mich. 552; Bigelow v. Kinney, 3 Vt. 353 ; Kobbins v. Eaton, 10 N. H. 561. 6 See Smith v. Low, 1 Atk. 489. « State v. Plaisted, 43 N. II. 413. 7 White V. Flora, 2 Overton, 426 ; Hoyle v. Stowe, 2 Dev. & Bat. 320. 8 Mustard v. Wolilford, 15 Gratt. 329. And see Cook i-. Tounibs, 36 Miss, 685. 9 Heath v. West, 8 Post. 101 ; Dana v. Coombs, 6 Greenl. 89. 10 Ottman v. Moak, 3 Sandf. Ch. 431. [623] * 584 INFANCY. * 585 delivery, so as to affect * all intermediate persons, ex- cept purchasers for a valuable consideration.^ And where a loan of money was made to an infant for which he executed a bond and mortgage, and in a will made after he became of age directed the payment of " all his just debts " and died ; it was held that the will sufficiently confirmed the mortgage.- Even notes given for the purchase-money of land, not secured by mortgage, have been equitably enforced ; and the court has refused to permit the notes to be disaffirmed and the land reclaimed.^ And yet the retention, after reach- ing majorit3% of the proceeds of land purchased and after- wards sold by the person while an infant, is not of itself sufficient to render him liable upon his covenant to pay an outstanding mortgage upon the land which he had assumed as part of the consideration of his purchase.* It would seem that the infant is not precluded from dis- affirming his conveyance of real estate b}' the mere lapse of time. Laches is not imputable to an infant.^ Where land had been sold by an infant it was said in a Connecticut case, years ago, the period of acquiescence being thirty-five years, that the infant ought to declare his disaffirmance within a reasonable time ; and similar dicta may be found in other courts ; but there seems to be no doubt upon the decided cases, that mere acquiescence is no confirmation of a sale of lands unless it has been prolonged for the statutory period of limitation ; and that an avoidance may be made any time before the statute has barred an entry .^ Whatever might be the effect of an infant's own fraud, as against himself, it would appear that a subsequent purchaser or mortgagee in good faith and for a valuable consideration, will hold his title as against a deed made by the owner during 1 Palmer v. Miller, 25 Barb. 399. 2 Mercliants' Fire Ins. Co. v. Grant, 2 Edw. Ch. 544. 8 Weed V. Beebe, 21 Vt. 495 * Walsh v. Po\Yers, 43 N. Y. 23. 6 Smith V. Sackett, 5 Gilm. 534. 6 1 Am. Lead. Cas. 4th ed. 256; Met. Contr. 60, 61, and cases cited; Tucker V. Moreland, 10 Pet. 58; Boody v. McKenney, 23 Me. 517 ; Drake v. Kamsay, 5 • Ohio, 251 ; Jackson v. Burchin, 14 Johns. 124; Urban r. Grimes, 2 Grant, 96; Vaughan v. Parr, 20 Ark. 600; Voorliies v. Voorhies, 24 Barb. 150; Ware v. Brush, 1 McLean, 533 ; Moore r. Abernethy, 7 Blackf. 442 ; Cole v. Pennoyer, 14 111. 158. [624] RATIFICATION AND AVOIDANCE OF CONTRACTS. * 585 his minority, of which he has received neither actual nor con- structive notice ; and this, too, notwithstanding ratification or fraud of the minor might have rendered that deed valid. ^ Yet lapse of time, together with slight circumstances, have in many instances sufficed to sustain an infant's deed. A Missouri case, indeed, holds that mere declarations or a prom- ise upon contingency will not ratify and confirm.^ But the authorities generally manifest extreme repugnance at setting * aside a solemn conveyance of land and re- * 586 opening beneficial transactions, merely to suit the caprice or dishonorable intent of infants.^ This may explain another dictum to the effect that an infant's deed will be con- firmed by any deliberate act after he comes of age, by which he takes benefit under it or recognizes its validity ; ^ which is not without precedents for support. Thus, in some instances where the infant after coming of age saw the purchaser make valuable improvements and incur considerable expense, and said nothing for years, he was held bound.^ So, too, it would seem, where one knowing his title, permits another to pur- chase without giving notice of his claim.'' While mere lapse of time less than the statute period will not suffice, yet the lapse of a less period in connection with such circumstances may. A tribunal of justice may properly decline to become the instrument of a knave. So, in Illinois, and some other States, the statute makes conveyances of a minor binding, unless disaffirmed and repudiated within a certain period, say three years after reaching majority.' In short, there is, ac- cording to the best authorities, a well-recognized distinction 1 Black V. Hills, 3G III. 376; Inman v. Inman, L. R. 15 Eq. 200. - Clamorgan v. Lane, 'J Mis. 440. And see Davidson v. Young, 38 111. 145. * See cases cited in preceding paragraph. < McConnic v. Leggett, 8 Jones, 425. 5 Wlieaton v. East, 5 Yerg. 41 ; Wallace v. Lewis, 4 Harring. 75 ; Jones v. Plienix Bank, 4 Seld. 235. « Hall V. Simmons, 2 Rich. Eq. 120; Alsworth v. Cordtz, 31 Miss. 32; Belton V. Briggs, 4 Desaus. 405; Cresinger v. Welch, 15 Ohio, 150; Emmons r. Mur- ray, 10 N. II. 385. 7 Bhinkenship v. Stout, 25 111. 132 ; Wright v. Germain, 21 Iowa, 585. And see Ferguson v. Bell, 17 Mis. 347; Bostwick i-. Atkins, 3 Comst. 53; Pursley V. Hays, 17 Iowa, 311 ; Sheldon v. Newton, 3 Ohio, n. s. 494 ; Rainsford v. Rainsford, Spears Ch. 385. 40 [ 625 ] * 586 INFANCY. between the nature of those acts which are necessary to avoid an infant's deed, and those which are sufficient to con- firm it. The deed cannot be avoided except by some act equally solemn with the deed itself. But acts of a character which would be insufficient to avoid such a deed may amount to an affirmance of it.^ The purchaser of an infant's lands succeeds to all the in- fant's rights in relation to it, although those rights grow out of his infancy.^ And a party in possession under the infant's deed cannot be regarded as a trespasser before the deed is avoided.^ Whether it is necessary that an entry upon the land to regain seisin be made to perfect the title of the person intend- ing to disaffirm his conveyance as infant, does not clearly appear from the authorities. The old rule was that in order to avoid a feoffment this was necessary. But conveyance by feoffment has been superseded by other methods of * 587 transferring * real property in England, and it is not in use here. In some of the earlier New York cases, where an infant had sold wild lands to other persons, and had after coming of age conveyed by similar deed the same lands to another, it was held that the first conveyance had been legally avoided, and the last purchaser was entitled to the property.* A case before the Supreme Court in the United States is supposed to sustain the same view ; only arguendo^ however, for in point of fact the person making the second conveyance remained in possession all the time ; and, as the court observed, "could not enter upon himself."^ Following the indication of these three important cases, several of the State courts have since held that a conveyance by an infant of the same land to another person, after he comes of age, effectually avoids a deed of bargain and sale made in infancy; 1 Irvine v. Irvine, 9 Wall. 617. And see Phillips v. Green, 5 Monr. 844; Scott V. Buchanan, 11 Humph. 468; Houser i;. Rej-nokls, 1 Hayw. 143. 2 Thompson v. Gaillard, 3 Rich. 418. See Jackson v. Todd, 6 Johns. 257 ; Hall V. Jones, 21 Md. 439. 3 Wallace v. Lewis, 4 Harring. 75. * Jackson v. Carpenter, 11 Johns. 539 ; Jackson v. Burchin, 14 Johns. 124. See Met. Contr. 44, 45, where this subject is discussed. 5 Tucker v. Moreland, 10 Pet. 58, per Story, J. [626 J RATIFICATION AND AVOIDANCE OF CONTRACTS. * 587 and this without entry on his part.^ But the New York courts have latterly been disposed to retrace their steps ; reluctance to do injury to others, doubtless, contributing to increase the strictness of requirements on the infant's part. Their present rule appears to be that, unless the lands were wholly vacant, or the infant remained in possession, he must make an entry or do some other act of equal notoriety before he can pass title by a second conveyance.^ There is no authority in the New England States to oppose this later doctrine ; nor do we find any in the other Middle States.^ But doubt is removed by statutes, in Maine, Massachusetts, and some other States, which permit parties to recover land by writ of entry without making actual entry. And it is held in * Maine * 588 that such a writ dispenses with entry and amounts to disaffirmance.'^ If an infant contract to sell real estate he cannot be held to the agreement after attaining majority upon refusal to sanc- tion it.^ And a bill to enforce specific performance should not be brought before a reasonable time has elapsed after the infant attains majority for him to affirm or disaffirm.^ But it is held that acquiescing in the settlement of boundaries after coming of age binds the infant.'^ To render a subsequent conveyance an ac't of dissent to the prior conveyance of an infant, it must be inconsistent there- with, so that the two cannot stand together.^ And it is held 1 Hoyle V. Stowe, 2 Dev. & Bat. 320 ; Pitcher v. Laycock, 7 Ind. 398 ; Mc- Gan V. Marshall, 7 Humph. 121 ; Hughes v. Watson, 10 Ohio, 127 ; Peterson v. Laik, 24 Mis. 541. ^ Dominick v. Michael, 4 Sandf. 421 ; Bool v. Mix, 17 Wend. 133 ; Voorhies V. Voorhies, 24 Barb. 150. 5 See Roberts i'. Wiggin, 1 N. H. 75 ; Worcester v. Eaton, 13 Mass. 375. See also Harrison v. Adcock, 8 Geo. 68 ; Moore r. Abernethy, 7 Blackf. 442. * Chadbourne v. Kacklift; 30 Me. 354. And see Cole v. Pennoyer, 14 111. 158. Mr. Metcalf appears to doubt tlie correctness of the rule in Jackson v. Carpen- ter, even as to cases of wild lands. Sec Met. Contr. 45, 46, and cases cited. 5 Walker v. Ellis, 12 III. 470; Petty v. Roberts, 7 Bush, 410. Still less if fraud were practised upon him. Griffis v. Younger, 6 Ired. Eq. 520. *> Carrell v. Potter, 23 Mich. 377. As to the ratification necessary to allow of enforcing a lien on real estate for work and materials furnished dm-ing infancy, see McCarty v. Carter, 49 111. 53. ■ ^ George v. Thomas, 16 Tex. 74. 8 Leitensdorfer v. Hempstead, 18 Mis. 209 ; McGan v. Marshall, 7 Humph. 121. [627] ♦588 INFANCY. that where hind was conveyed by a person under age in exchange for other lands, and he after coming of age sells and conveys the lands so received, the last deed amounts to a confirmation of the first.^ The same reasoning which applies to property transferred by the infant applies to his purchases. If an infant, for instance, takes a conveyance of land during minority and retains possession after coming to majority, circumstances may make that a binding transaction. So if an infant lessee remains in possession of the house or land demised, and pays rent after majority, he cannot repudiate the lease after- wards.2 When an infant purchases property, and continues to enjoy the use of the same, and then sells it or any part of it, and receives the money for it, he must be considered as having elected to affirm the contract, and he cannot afterwards avoid payment of the consideration.^ Some authorities would con- fine the affirmation of a purchase of land to an actual sub- sequent sale, but this is quite unreasonable, and contrary to the general doctrine ; for there may be many other acts which constitute just as full and undoubted evidence of a design on the infant's part to affirm such contract as an actual sale of the land. Thus continuous occupation of premises, improvements, and offers to sell, have sometimes been deemed sufficient.^ And Chief Justice Shaw observes that if an infant, after coming of age, retains landed property * 589 purchased by him during minority for his own * use, or sells or otherwise disposes of it, such acts being only conscientiousl}^ done with intent to ratify or affirm, affirmation or ratification may be inferred.^ The same prin- ciple has been declared in other cases, even to the extent of holding that mere continuance in possession is an affirmance ; 1 Williams v. Mabee, 3 Halst. Ch. 500. 2 Holmes v. Blogg, 8 Taunt. 85 ; Smith Contr. 284 ; Bac. Abr. tit. Infant, K. 612; Baxter v. Bush, 29 Vt. 465; Armfield v. Tate, 7 Ired. 258. 3 BoDily V. McKennej, 10 Shep. 517 ; Hubbard v. Cummings, 1 Me. 11 ; Boy- den V. Boyden, 9 Met. 519 ; Robbins v. Eaton, 10 N. H. 561. * See Kobbins ;;. Eaton, 10 N. H. 561. ' See Boyden v. Boyden, supra. [ 628] EATIFICATION AND AVOIDANCE OF CONTRACTS. * 589 the more so, if the late infant has put it out of his power to restore the title. ^ It Avill be ob-erved that such latter con- duct involves two elements : lapse of time and the exercise of acts of ownership. This rule was applied in a recent well-considered New York case, upon a full examination of the authorities. An infant had given his note for certain real estate ; and, very foolishly, or very dishonorably, endeavored to avoid payment upon majorit3^ while holding to the benefits of his purchase. It was held that by his acts he had ratified the contract of pur- chase.^ Since a married woman conveys her lands, by force of statute provisions, perplexing questions may arise as to the effect of a conveyance executed in conformity with late acts, yet ineffectual because of her infancy.^ It would appear from some late American cases, that the wife still continuing covert after becoming of age, acts which might constitute ratification in ordinary cases may not always be set up against her.'* But a married woman is sometimes estopped by her own acts ; as in a case where her equitable interest in land was sold while she was a minor, together with the interests of adult parties, and she received her share of the proceeds some years after attaining majority.^ By a well-known rule of equity, the proceeds of lands sold * during minority retain the character of * 590 real estate. And such property remains real and not personal, even after the infant attains majority, so long as there is no act or intent on hi ^ part to change its character ; ** but the character ceases when he attains majorit}'-, and obtains possession of the proceeds.^ 1 Dana v. Coombs, 6 Greenl. 89 ; Cheshire v. Barrett, 4 M'Cord, 241 ; Lynde V. Bud I, 2 Page, 191 ; Middleton v. Hoge, 5 Busli, 478. 2 Henry i'. Root, 33 N. Y. 526. ^ Harbman v. Kendall, 4 Ind. 403. i Matlierson v. Davis, 2 Cold. 443 ; Miles v. Lingerman, 24 Ind. 385. This subject appears to have received little attention as yet ; but tiie equity doctrine, to argue from the case of marriage settlements, appears to be that the wife may by acts give validity to such deeds, after attaining full age and notwithstanding her coverture. See supra, cli. 1. 5 Anderson v. Mather, 44 N. Y. 249. And see Sclimitheimer v. Eiseman, 7 Bush, 298. 6 Foreman v. Foreman, 7 Barb. 215. "^ Forraan v. Marsh, 1 Kern. 544, [629] ♦590 INFANCY. Where a new promise is requisite on reaching majority, it must be made to the party with whom the infant contracted, or to his agent or attorney ; not to a stranger.^ But a promise to an agent authorized to present the claim and receive pay- ment and give discharge, binds him lately an infant.^ And where a writing addressed to another than the plaintiff is relied on, not as constituting a ratification or containing a promise, but as evidence of a ratification previously made by the defendant, it is held admissible in the plaintiff's favor.^ Nor is it necessary that the agent should have disclosed his authority before the defendant made his admission.'^ So, too, wliile an infant, or one in priority with him, may object to a contract on the ground that it was not for his benefit, a third person, a stranger, has no right to say that the infant may not make or assume what contract he pleases.^ It is not essential to a valid ratification that the person lately an infant should know that he was not legally liable on his contract made during infancy.^ Ignorance of the law excuses no one. But there is a dictum of Lord Alvanley to the contrary, which has been frequently repeated in Amer- ican courts, and once constituted the basis of a decision in Pennsylvania.'^ * 591 * An infant upon reaching majority, who chooses to disaffirm a sale of his real estate, not made in accord- ance with law, may do so, without first refunding, or offer- ing to refund, the purchase-money. This is declared in several cases.^ But the principle is firmly established by the courts that he cannot on attaining full age hold to the pur- chase, and thus affirm that, while pleading his infancy to I Bicjelow V. Grannis, 2 Hill, 120; Goodsell v. Myers, 3 Wend. 479. -' Mayer v. McLiire, 30 Miss. 389. 3 Stern v. Freeman, 4 Met. (Ky.) 309. * Hoit V. Underliill, 10 N. 11. 220. And see Tate v. Tate, 1 Dev. & Bat. 22. 5 See Douglas i-. W.atson, 34 E L. & Eq. 447. 6 Morse v. Wheeler, 4 Allen, 570; Met. Contr. 59. T Harmer i;. Killing, 5 Esp. 103 ; Hinely v. Margaritz, 3 Barr, 428. See Cur- tis r. Patton, 11 S. & R. 305; Keed v. Bosliears, 4 Sneed, 118; Norris v. Vance, 3 rxich. 164. 8 Pitcher v. Laycock, 7 Ind. 398 ; Cresinger v. Welch, 15 Ohio, 156 ; Miles v. Lingerman, 24 Ind. 385. But see Stuart v. Baker, 17 Tex. 417. [ 630] RATIFICATION AND AVOIDANCE OF CONTRACTS. * 591 avoid the payment of the purchase-money .1 He must refund the purchase-money if he seeks to avoid the sale. He must, sooner or later, place the original purchaser in statu quo ; this common honesty, as well as the law, demands. For this pur- pose the purchaser may bring suit. And the same principle applies alike to property real or personal. So if an infant sell goods and receive the money for them, he cannot recover back the goods without returning the money.2 Nor damage property he has received, and then demand the full price on offering to restore it.^ Nor recover partnership property after rescinding the partnership agree- ment, so as to prejudice liabilities of the firm which are outstanding.* If the former vendee be sued for use and occu- pation of land, it is held that he may recoup for valuable improvements; and equity favors a fair adjustment of rents, damages, and improvements.^ The plea of false warranty may sometimes be set up against the infant's attempt T)y affirmance to enforce a hard bargain.^ To multiply these illustrations is unnecessary ; the cardinal principle which runs through them all is that substantial justice should be done, if possible, between the two parties to a contract. 1 Kline v. Beall, 6 Conn. 494 ; Bailey v. Bamberger, 11 B. Monr. 113 ; Strain V. AVright, 7 Geo. 568; Hillyer v. Bennett, ?> Edvv. Cli. 222; Lowry v. Drake, 1 Dana, 46 ; Kitchen v. Lee, 11 Paige, 107 ; Tipton v. Tipton, 3 Jones, 552; Wo- mack V. Woraack, 8 Te.x. 397; Smith v. Evans, 5 Humph. 70; Manning v. Johnson, 26 Ala. 446 ; Wilie v. Brooks, 45 Miss. 542 ; Kerr v. Boll, 44 Mis. 120. 2 Badger v. Phinney, 15 Mass. 359 ; Bartholemew v. Finnemore, 17 Barb. 428. 3 Carr v. Clough, 6 Fost 280 ; Bartholemew v. Finnemore, supra. 4 Furlong v. Bartlett, 21 Pick. 401 ; Sadler v. Robinson, 2 Stew. 520 ; Kinnen V. Maxwell, 66 N. C. 45. 5 Weaver v. Jones, 24 Ala. 420; Petty i\ Roberts, 7 Bush, 410. 6 Morrill v. Aden, 19 Vt. 505. And see Heath v. West, 8 Fost. 101 ; Ship- man V. Horton, 17 Conn. 481 ; Edgarton v. Wolf, 6 Gray, 453. [631] * 592 INFANCY. *592 * CHAPTER VI. ACTIONS BY AND AGAINST INFANTS. I. It is a fundamental principle that the rights of property- shall vest in infants, notwithstanding their tender years ; and incidentally thereto they have the right of action. Yet, it is clear that if the infant be unfit to make a contract he is unfit to sue on his own behalf. Hence is the rule that while pro- cess is sued out in the infant's own name, it is in his name by another ; that is to say, some person of full age must conduct the suit for him. The same jDrinciple applies to all civil actions, whether founded on a contract or not. At common law, infants could neither sue nor defend, except by guardian. They were authorized, by Stat. Westm. 1, to sue hy pi'ochein ami (or next friend) against the guardian in chivalry who had aliened any portion of the infant's inheritance.^ Stat. Westm. 2, c. 15, extended this privilege to all other cases where they could not sue formally. Lord Coke lays down that, since these statutes, the infant shall sue hy pro chein ami and defend by guardian.^ And Fitzherbert is to the same effect.^ But Mr. Hargrave thinks it probable that Fitzherbert and Lord Coke did not mean to exclude the election of suing either by prochein ami or by guardian.^ And whether they did or not, guardianship at the present day, so unlike guardianship as they understood it, justifies the modern practice ; which is to ajopoint a special jDcrson as prochein ami only in case of necessity, where an infant * 593 is to sue his guardian, or the * guardian will not sue for him, or it is imjjrojDcr that the guardian should be the prochein ami. In other cases, the rule is to sue by guar- 1 Macphers. Inf. 13, 352. 2 2 Inst. 261, 390; Co. Litt. 135 6; 3 Robin»3on's Pract. 229. 3 F. N. B. [27] H. < Harg. n. Co. Lit:. 135 b. [632] ACTIONS BY AND AGAINST INFANTS. * 593 dian or procJmn ami} But an infant may sue by his next friend though he have a guardian, if the guardian does not dissent.2 And in some States the choice allowed the infant is still more liberal.^ Not unfrequently, too, the next friend who brought the suit is removed and another appointed, on the ground that it is for the infant's benefit.* An infant cannot prosecute an action either in person or by attorney. This is well settled.^ But advantage must be taken by plea in abatement of the infant's suing by attorney, or by application to a judge, or the court, for it is not error after judgment either on verdict or by default.^ The same rules are frequently applied to a parent who sues on behalf of minor children, but not as guardian or next friend. Where infancy of the plaintiff is pleaded in abatement to a suit brought by a minor in his own name without any guardian or next friend, the court may allow the infant to amend by in- serting in his writ that he sues by A., his next friend." Nor does this rule deprive the infant of the professional services of an attorney ; it relates to the parties to the suit.^ Generally speaking, Avhen an action is brought by an infant, he sues in his own name by a certain person as next friend. A prochein ami, commencing his authority with the writ and declaration, can only maintain the suit for such causes of action as may be prosecuted without special demand ; as for personal injuries done to the infant, or for sums of money 1 Claridge v. Crawford, 1 Dowl. & Ky. 13; 3 Robinson's Pract. 230; Younge v. Younge, Cro. Car. 86 ; Goodwin v. IMoore, Cro. Car. 161 ; Aptliorp v. Backus, Kirby, 407 ; M'Giffin v. Stout, Coxe, 92 ; Blackman v. Davis, 42 Ala. 184. 2 Thomas v. Dike, 11 Vt. 273; Robson v. Osborn, 13 Tex. 298. 3 Hooks V. Smith, 18 Ala. 338. * Barwick v. Rackley, 45 Ala. 215 ; Martin v. Weyman, 26 Tex. 400 ; Mills »•. Humes, 22 Md. 346. 5 Cro. Eliz. 424 ; Cro. Jac. 5 ; 1 Co. Litt. 135 b, Harg. n., 220; Miles v. Boy- den, 3 Pick. 213 ; Clark r. Turner, 1 Root, 200 ; Mockey v. Grey, 2 Johns. VX2 ; Timmons v. Timmons, 6 Ind. 8; Nicholson v. Wilborn, 13 Geo. 467. 6 2 Saund. Pleading, 207 ; Bird v. Pegg, 5 B. & Aid. 418 ; Finley v. Jowie, 13 East, 6 ; Apthorp v. Backus, Kirby, 407. But as to the infant himself, see Bird r. Pegg ; Jones v. Steele, 36 Mis. 324. ' Blood V. Harrington, 8 Pick. 5-52. 8 People V. New York C. P., 11 Wend. 164. [633] * 593 INFANCY. where the writ itself is considered as the demand.^ In Eng- land, it was once considered that the special admission * 594 of a guardian for an * infant to appear in one case would serve for others.^ But the modern rule is that the special admission of prochein ami or guardian, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action specified.^ Sometimes there will be an advantage in suing by guardian if this can legally be done.* The guardian, like the prochein ami^ is, in English practice, aj^pointed by the court before the plaintiff can proceed in the action, and no legal right of parentage or of guardianship will enable any one to act for the infant without such appoint- ment.^ But where the infant's father being a necessary witness, could not properly be procliein ami in a certain suit, the court, on motion, appointed a friend of the family with the father's concurrence.^ No authority from the infant to the guardian on prochein ami to sue is necessary, though the infant be on the very eve of majority ; but it is intimated that the court might interfere if fraud was shown.''' As the 23rochein ami is an officer of the court, if the infant wishes him removed he must apply to the court for that purpose, and an entry of the change should be made of record.^ But on the plaintiff coming of age, he may, it seems, remove the prochein ami of his own authority, and appear thereafter by his own attorney.^ But while, in theory, the prochein ami is still legally ap- pointed by the court, such formalities are now, in practice, very generally waived. In Connecticut, Massachusetts, Vir- ginia, and other States, no entry of record is requisite admit- ting a person to sue as guardian or next friend, the recital in the writ and count beinsT deemed sufficient evidence of admis- i Miles V. Boyden, 3 Pick. 219. 2 Archer v. Frowde, 1 Stra. 304. 3 2 Saund. Plead. 207 ; Macphers. Inf. 353. 4 3 Robinson's Pract. 229. * Macphers. Inf. 353. 6 Claridge v. Crawford, 1 Dovvl. & Ry. 13. " Morgan v. Thorne, 9 Dowl. 228. Aiid see Barwick v. Rackley, 45 Ala. 215. 8 Davies v. Locket, 4 Taunt. 705 ; Morgan v. Thorne, supra. 9 See Bac. Abr. Infant, K. 2. [ 634 ] ACTIONS BY AND AGAINST INFANTS. * 594 sion unless seasonably challeng-ed by the opposite party, when the order may be *supplied.i In New York, on * 595 the other hand, a j^rochein ami must be appointed for the infant plaintiff before process is sued out ; and such is the practice in some other parts of this country .^ In some States it is deemed proper to prove infancy, and hence the right to sue by next friend.^ So, too, in this country, more deference seems to be shown to the infant's wishes than in England. Thus, in Massachu- setts, the court on the personal petition of a minor, twenty years of age, withdrew the authority of the prochein ami, and ordered all further proceedings in the suit postponed until the minor should attain full years.^ In the choice of a guardian and prochein ami, a minor above fourteen has much latitude of discretion ; and when he attains full age he may enter the fact upon record, and without further formality proceed to conduct the suit for himself.^ Where an infant has brought an action by his next friend, and has recovered damages which have been received by the attorney, the money is the money of the infant, and he may sue the attorney for it.*^ A prochein ami is liable for costs, and the remedy is against him for attachment, which should be absolute in the first instance.^ This is the English practice. It Avould appear that execution cannot issue against the infant himself ; and this from the very circumstance that the next friend is, in theory, one who comes forward to assume all such liabilities.^ 1 See Guild v. Cranston, 8 Cusli. 506 ; Boynton v. Clay, 58 Me. 236 ; Bur- well V. Corbin, 1 Rand. 151 ; 3 Bobinson's Tract. 230 ; Trask v. Stone, 7 Mass. 241 ; Judson i-. Blancliard, 3 Conn. o7». And see Stumps v. Kelley, 22 111. 140. ■J Wilder v. Ember, 12 Wend. 191 ; Haines v. Oatman, 2 Doug. 480 ; Grant- man V. Tiirall, 44 Barb. 173. 3 Byers v. Des Moines, &c., B R. Co., 21 Iowa, 54. 4 Guild V. Cranston, 8 Cush. 506. 5 Clark V. Watson, 2 Ind. 399 ; Sluittlcsworth r. Ilugliey, 6 Bich. 329. 6 Collins V. Brook, 4 Hurl. & Nor. 276. And see Smith v. Bedus, 9 Ala. 99. 1 Newton v. London, Brighton, &c., B. R. Co., 7 Dow. & L. 328 (1849) ; Dow V. Clark, 2 Dowl. 302. See Price v. Duggan, 4 Man. & Gr. 225. 8 lb. . Stephenson v. Stephenson, 3 Hey. 123 ; Berryman v. Burgstcr, 6 Port, f Ala.) 199 ; Sproule v. Botts, 5 J. J. Marsh. 162. But see Proudfoot v. Poile, 3 Dow. & L. 524; Macphers. Inf. 356, 35", and cases cited. As to practice under New York code, see Linner v. Crouse, 61 Barb. 289. [ 635 ] *595 INFANCY. But in conformity with statutes in Massachusetts, it is * 596 held that a * prochein ami, as such, is not liable for costs ; ^ nor does he seem to be always strictly con- sidered in our courts a party to the suit ; ^ and the infant plaintiff is made liable for his own costs.^ II. An infant can appear and defend in civil suits by guar- dian only, and not by attorney, or in person.* The process is the same against an infant as in ordinary cases ; but he needs some one to conduct his defence, and hence every court, wherein an infant is sued, has power to appoint a guardian ad litem, for the special purposes of the suit, since otherwise he might be without assistance.^ A guardian ad litem is one appointed for the infant to defend in the particular action brought against him, and is therefore to be distinguished from guardians of the person and estate.^ If there be a general chancery, probate, or tes- tamentary guardian already appointed, it is his place to de- fend the infant from all suits, so long as his authority over the infant's property continues ; this being, however, a matter usually regulated in this country by statute.' What has been observed of the appointment of j^roehein ami may be said, in general, of that of the guardian ad litem. The two correspond, and the principles of law applicable to the one are in general to be applied to the other.^ In a criminal case no guardian ad litem is appointed. But in a civil case, proceedings against an infant are liable to be re- versed and set aside for irregularity, where no guardian ad litem has been appointed for him, unless, perhaps, his regular guardian has appeared in his defence ; and process must, be- sides, have been first regularly served upon the infant ; though > Crandall i-. Slaid, 11 Met. 288. '^ Brown v. Hull, 16 Vt. 673. 3 Ilowett I'. Alexanrler, 1 Dev. 431 ; Smith v. Floyd, 1 Pick. 275. * Co. Litt. 88 b, n. 16, 135 b; 2 Stra. 784 ; Macphers. Inf. 358; Alderman v. Tirrell, 8 Johns. 418 ; Knapp v. Crosby, 1 Mass. 479 ; Miles v. Boyden, 3 Pick. 21y ; Bedell v. Lewis, 4 J. J. Marsh. 562; Starbird v. Moore, 21 Vt. 529. 5 Bac. Abr. Guardian, B. 4. 6 Larkin v. Mann, 2 Paige, 27 ; Koberts v. Stanton, 2 Munf. 129; Bac. Abr. Guardian, supra, cases cited by Bouvier. "i See Hughes v. Seller, 34 Ind. 337. 8 See Macphers. Inf. 358. ACTIONS BY AND AGAINST INFANTS. * 596 in this latter respect the rule of the several States is not iini- form.i Irregularities of procedure are often cured by the judgment ; and lapse of time and laches on the part of an infant after reaching majority, may leave him altogether with- out an opportunity to set the judgment aside, as in the case of his voidable transactions.^ The writ and declaration in actions at law against infants are to be made out as in ordinar}^ cases. In English practice, where the defendant neglects to appear, or appears otherwise * than by guardian, the plaintiff may apply * 597 for and obtain a summons, calling on him to appear by guardian within a given time ; otherwise the plaintiff may be at liberty to proceed as in other cases, having had a nominal guardian assigned to the infant.^ A like rule prevails in New York and other States.^ Courts will go so far to protect an infant as to see that process is properly served, a guardian ad litem appointed for him, and the formal answer filed.° Infancy may be specially pleaded in bar.^ The plaintiff re- plies either that the defendant was of age or that the goods were necessaries, or that he confirmed the contract Avhen he came of age. If there be several defendants, the party who is a minor should plead his infancy separatel3\ Infancy is an issuable plea ; and it may be pleaded with other pleas witliout leave of court." Where there are several issues, one of which is upon the plea of infancy, that being found for the infant, the whole case is disposed of.^ In New York, infancy may be given in evidence under the general issue.^ 1 See Abflil v. Abdil, 26 Ind. 287 ; Jiirman v. Lucas, 15 C. B. k. 8. 474 ; Frierson v. Travis, 3'.) Ala. 150. In some States, it is required by statute tiiat process shall be served upon the infant defendant personally, also upon liis father, mother, or guardian. Ingersoll v. Ingersoll, 42 Miss. 15-5. - See Townsend v. Co.x, 4.5 Mis. 401 ; Barnard v. Hoydrick, 49 Barb. 62 ; McMurray ;•. MoMurray, 60 Barb. 117. ' See Macphers. Inf. 859. * Van Deuscn v. Brower, 6 Cow. 50; Judson v. Storer, 2 South. 644; Clarke V. Gilmanton, 12 N. H. 515. 5 Alexander v. Frary, 9 Ind. 481. 6 Clemson v. Bush, 3 Binn. 413; Hillegass v. Hillegass, 5 Barr, 97. 7 15 & 16 Vict. c. 76, § 84. See Delafield v. Tanner, 5 Taunt. 856 ; Dublin & Wicklow R. R. Co. i;. Black, 8 E.vth. 181. ^ Rohrer i'. MorningstJir, 18 Ohio, 679. 9 Wailing v. Toll, 9 Johns. 141. [637] * 597 INFANCY. An infant defendant is liable to costs in the same manner as any other defendant, notwithstanding he has a guardian.^ Macpherson says that the guardian of an infant defendant is subject to the same Uability for costs as the 'procliein ami, or the guardian of an infant plaintiff.^ No authority is given for this statement, and it seems that the guardian of an infant defendant is not liable.^ If an infant comes of age pending the suit, he can * 598 assert his * rights at once for himself, and if he does not he cannot generally complain of the acts of his guardian ad litem ^ III. The same leading principles noticeable in suits at law are to be recognized in equity proceedings, by or against in- fants ; and the doctrines of next friend and guardian ad litem receive ample discussion in the chancery courts.^ Among the miscellaneous matters of chancery practice re- lating to infants may be mentioned proceedings in partition, orders for maintenance and education, the management of trust funds by guardians and other trustees, and the award of custody. These subjects have already been incidentally considered in the course of this treatise. And we need only add that in the appointment of guardians ad litem, courts of chancery will exercise a liberal discretion ; that in all pro- ceedings of this character, the appointment of a guardian ad litem to appear in behalf of infants interested in the proceed- ings is regarded as proper and even necessary, when they have no general guardian ; that personal service upon the infants, besides, is usually requisite ; and that a decree rendered without observance of such formalities may be reversed for error.^ It is the rule in many States, as it was the old practice 1 Anderson v. Warde, Dyer, 104 ; Gardiner v. Holt, Stra. 1217. 2 Macphers. Inf. 361. 3 See Ferryman v. Burgster, 6 Port. (Ala.) 199. 4 Mitchell V. Berry, 1 Met. (Ky.) 602. And see Marshall v. Wing, 50 Me. 62; Stupp V. Holmes, 48 Mis. 89. 5 See 1 Daniell Ch. PI. 3d Am. ed. 6-5 et seq. ; ib. 1.50 et seq., where the Eng- lish and American authorities are very fully cited. 6 lb. And see Rhett v. Martin, 43 Ala. 86 ; Girty v. Logan, 6 Bush, 8 ; Rhoads v. Rhoads, 43 111. 239 ; Swain v. Fidelity Ins. Co., 54 Penn. St. 455 ; Ivey V. Ingram, 4 Cold. 129. [ 638 ] ACTIONS BY AND AGAINST INFANTS. * 598 in chancery, to allow an infant his day, after he attains majority, to set aside a decree against him ; thus, in effect, rendering such decrees in chancery voidable rather than binding, so far as he is concerned, and treating him more than ever upon the footing of a privileged person ; ^ for it is not too much to say that at all times and under all circumstances infants are especial favorites of our law. 1 Simpson v. Alexander, 6 Cold. 619 ; Kuclienbeiser v. Beckert, 41 111. 173 ; 1 Daniell Ch. PI. 3d Am. ed. 71, 167. [ 639] *599 MASTER AND SERVANT. i99 *PAET VI. MASTER AND SERVANT. CHAPTER I. NATURE OF THE RELATION ; HOW CREATED AND HOW TERMINATED. A MASTER is one who has legal authority over another ; and the person over whom such authority may be rightfully exer- cised is his servant. The relation of master and servant pre- supposes two parties who stand on an unequal footing in their mutual dealings ; yet not naturally so, as in other domestic relations, nor necessarily because the subordinate is wanting in either years or discretion. This relation is, in theory, hostile to the genius of free institutions. It bears the marks of social caste. Hence it may be pronounced as a relation of more general importance in ancient than in modern times, and better applicable at this day to English than American society. Master and servant has, nevertheless, been uniformly re- garded as one of the domestic relations. In lands where human slavery is lawfully recognized, it is pre-eminently so ; and thus were its foundations deeply laid in the civil law. In the early days of the common law, it formed a distinct part of the English household jurisprudence ; and in a state of society where landed proprietors are few and wealthy, where rank and titles are maintained with ostentatious display, where the humble born are taught to obey, rather than aspire, * 600 this must so * continue. Not only cooks, butlers, and house-maids are thus brought within the scope of this [ 640] NATURE OF THE RELATION. * 600 relation, but farm-hands, plantation laborers, stewards, bailiffs, factors, family chaplains, and legal advisers. Thus is explained what at first may seem an anomaly, that the common law, under the head of master and servant, discusses princiiDles which, in this day, belong- more justly to the relation of principal and agent ; and that we constantly find an offensive term used in court to denote duties and obligations which rest upon the pure contract of hiring. Clerks, salaried officers, brokers, commission merchants, all are designated as servants ; and our topic in this broad sense is not, if words mean any thing, within the influence of the domestic law at all. Nor is it possible to extend the lines so as to include these persons without abandoning consistency of purpose, and yielding up the vital princiiDle of legal classification. Were the writer then untrammelled by authority, his treat- ment of this topic, as one of the domestic relations, would be confined to what are denominated at common law menial ser- vants, so called from being intra mceyiia ; or rather to domestic servants, extending the definition to all such as are employed in and about a family in carrying on the household concerns, whether their occupations be within or without of doors, so long as they constitute part of the family. In this restricted sense, the law of master and servant is manifestly of little importance to-day. But, as the reader may have perceived on perusal of the topic of guardian and ward, legal precision must sometimes be sacrificed to legal usage; and as terms have been carried in both instances beyond their original signification, for the sake of analogy, we are bound to follow a certain distance, even though it be into logical confusion. How much the law of master and servant is understood to mean, may be gathered from the books. Blackstone compre- hends under this head slaves, menial servants, appren- tices, * hired laborers, and servants pro tempore, sucli * 601 as stewards, factors, and bailiffs, and he thereupon pro- ceeds to discuss principles applicable to all such classes alike.^ Reeve carries the discussion still further, as to factors, brokers, attorneys, and agents generally .^ Kent, writing for later 1 1 Bl. Com. Cli. 14. 2 lieeve Dom. Rel. 339 et seq. 41 [ 641 ] * 601 MASTER AND SERVANT. readers, with a clearer appreciation of his limits, classifies into slaves, hired servants, and apprentices, and confines his dis- cussion more carefully to what might subserve the wants of the domestic law ; yet, not with exactness.^ None of these writers erred in their general views ; the principles of the law had already spread out with the growth of society in such a manner that they were obliged to follow the authorities. For the same reason the present writer, keeping in view the natu- ral boundaries of his subject, will, nevertheless, take a some- what comprehensive and desultory range ; thereby meeting better the practical wants of the lawyer, and satisfying a reasonable expectation. Slavery, for obvious reasons, need no longer be treated as a branch of our law of master and servant. We come first, then, to hired servants, or servants proper ; and as to these the contract between them and their masters arises upon the hiring ; the servant being bound to render the service, and the master to pay the stipulated consideration.^ The next class is that of apprentices : fairly distinguishable, as comprising such, usually minors, as are bound out under public statutes, and over whom by reason of their tender years, and in accordance with the spirit of such statutes, the master stands somewhat in the stead of a parent. Yet, apprentices might be bound out merely to learn a trade, and as part of the education fur- nished by their judicious parents ; and Blackstone mentions that very large sums were sometimes given with them for their instruction at his day.^ Thirdly, persons com- * 602 monly known in popular * speech as workmen or employes, who are brought within the principles of one or both of the two preceding classes, and to whom the relation of master and servant may well be said to apply. In this class are included day-laborers, factory operatives, miners, colliers, and numerous others, of whom nothing more definite can be said than that they are hired to perform services of a somewhat unambitious character. If to these be added all other occupations to which the same rules are from time to 1 2 Kent Com. Lee. 32. 2 i b1. Com. 425 ; 2 Kent Com. 258. 3 See 1 Bl. Com. 426 ; 2 Kent Com. 263, 264. [. 642 ] i NATURE OF THE RELATION. * 602 time applied in the courts, it is gratifying to reflect that the servant is frequently the social equal, or even the superior, of his master. But let us invert the order, disregarding general service for the present. In other words, let us glance rapidly at the relation first of workmen and next of apprentices; then we can consider the relation of hired servants in its wider sense more at our leisure. First. The rights of workmen or employes furnish a fruit- ful topic for legislation. And so widely do the Englisli and American systems differ in these and kindred matters, that judicial precedents may not always be safely interchanged between the two nations. Further is it to be remarked that apprentices and workmen are very generally affected by the same statutes. Prior to 1824, English industrial legislation leaned de- cidedly in favor of the master. Trade monopolies, of which Sir Edward Coke complained so justly, were indeed greatly restricted in the time of James I. ; ^ yet their influence was felt down to a much later period ; and certain corporations and guilds enjoyed exclusive privileges, which obstructed almost entirely the enterprise of individuals. Attempts were made from time to time to better the condition of the working classes, and to regulate the payment of their wages ; but while fines and imprisonment were the punishment of the employed, the employer suffered rarely for his own miscon- duct beyond rescission of the contract.^ To exercise a trade in any town without having previously served an apprenticeship of seven years, was a penal offence.^ So, to entice or seduce artisans to settle abroad and * communicate * 603 their knowledge, to engage in the export of machinery, all this was criminal, and punished with severity, the object proposed by such legislation being to prevent the destruction of home manufactures.^ An important act, passed in Ma}', 1823, was calculated to ameliorate the condition of workmen, 1 3 Inst. 181. See 4 Bl. Com. 159. 2 See acts 20 Geo. 2, c. 19, 6 Geo. 3, c. 25; Macdonald Handybook, 70, &c. ; 1 Bl. Com. 426, 427. 3 4 Bl. Com. 160. * lb. [ 643 ] ♦ 603 MASTER AND SERVANT. by enlarging the powers of magistrates on behalf of appren- tices ; yet, English petty magistrates were always inclined to obsequiousness, and their tribunals had not the confidence of the working classes, as remains the fact to this day. Public sentiment of later years, however, has undergone a great change, and class legislation has fallen into compara- tive disrepute. No principle so beneficial to workmen has been introduced as that of arbitration. This doctrine of arbitration appears distinctly set out in the act 5 Geo. IV. c. 96, of 1824, a consolidating statute which gets rid of former inequalities, and marks the latest era in English in- dustrial legislation. Yet the arbitration provisions of this act are said not to have worked well in practice, partly, as a writer suggests, because of the requisite intervention of a justice of the peace, partly from its lack of simplicity.^ But a. very recent act establishes " equitable councils of concilia- tion " to adjust differences between masters and workmen, upon a plan much resembling the French courts of Prud'- hommes? The plan is, that masters and Avorkmen shall each elect their own delegates to a board or council, which is em- powered to fix upon the rate of wages between employer and employed, and otherwise adjust disputes peculiarly appertain- ing to such service.^ And a still later act sets forth the details of such agreements quite fully, and further provides for the designation of arbitrators in case of a disagree- ment.* * 604 * There is comparatively little legislation of this sort J Macdonald Handybook, 137, — a small and convenient compendium re- cently published (1868). 2 30&31 Vict. c. 105 (1807). 3 This experiment had been tried in the English manufacturing districts for some years ])revious to the passage of the act, and with marked success. A celebrated strike at Nottingliam, in 1860, led to its first practical application ; and though there was then no statute countenancing such a court, manufacturers elsewhere were soon led to adopt the system from its manifest convenience. To introduce such a court into ICngland is said to have been a favorite speculation of the late Lord Brougham. See Macdonald Handybook, 274. 4 35 & 36 Vict., August 6, 1872. The principle of arbitration in the matter of trade disputes was lately adopted (1872) by master-builders and masons on a strike, upon the reconunendation of a committee of the Social Science Asso- ciation. [644] NATURE OF THE RELATION. * 604 to be found in our States. Trade is less fettered in Amer- ica than it was in England ; and disputes between master and servant have been generally adjusted between them- selves or by the ordinary legal methods. The fluctuation of society in America, the variety of pursuits always open to active competitors, the opportunities freely afforded for social elevation, together witli the fact of a wider distribution of our manufacturing population than in England, contribute to the difference. The employe of to-day becomes the employer of to-morrow. Yet humane laws are frequently enacted, and still more frequently called for. In Connecticut, Pennsylva- nia, and other States, children are specially protected from laborious toil unsuited to their years, and the hours of work in the mills are reduced to a proper limit. ^ And young chil- dren are to be taught the necessar}^ branches of a common education, notwithstanding their employment in manual la- bor.2 Trade associations are often formed in both countries to protect the rights of workmen in certain mechanical pursuits. But arbitrary and oppressive conduct, on the part of such associations, is not to be countenanced. Thus, where a trade association conspires to break down the business of a master mechanic, because he will not pay a sum demanded, by inter- fering with his employment of workmen, he may sue them for damages.^ Second. The relation of apprentice was, in its original spirit and policy, as Kent has observed, calculated to give the apprentice a thorough trade education, and to advance the mechanic arts.^ To some extent, it has that significance still. The English apprentice system, beyond what has just been noticed of working-men generally, has, however, referred more especially to the poor or parish apprentices, who, under a late act, may be bound out to the sea service as well as a 1 See 2 Kent Com. last ed. 266, and notes referring to statutes of Pennsyl- vania, Maine, New Hampshire, Connecticut, and New Jersey. 2 There are similar acts in England lately passed. See Factory Acts, 7 Vict. c. 15 ; 10 Vict. c. 29 ; 16 & 17 Vict. c. 104 ; 24 & 25 Vict. c. 117 ; 30 & 31 Vict, c. 103. 3 Carew v. Rutherford, 106 Mass. 1. < 2 Kent Com. 266. [ 645 ] * 604 MASTER AND SERVANT. trade. ^ In many American States there appear to exist no provisions for binding out others than poor children * 605 and orphans. Again, in other States, * as New York, Massachusetts, and Pennsylvania, the provisions are more general.^ The principle of such statutes is to permit those having custody to assign to strangers a certain authority over their children, until the latter reach majority ; and town authorities, or overseers of the poor, may, in many instances, supply the want of natural protectors. But, inasmuch as the infant's own assent is now made essential to such instru- ments, so far as binding him beyond the age of discretion is concerned ; inasmuch as courts do not hesitate to disregard them, if at all inequitable, or even perhaps if drawn up not in strict conformity to statute ; while, according to our policy, the child's freedom to dispose of his own time in general when left to earn his living, is very favorably regarded ; it must be said that apprenticeship by indenture is now thought less desirable than it was formerly. Public authorities may resort to it with advantage for securing good homes to the homeless ; parents not equally so ; the poor, however, may often thus secure a trade education for their children without cost to themselves. There can certainly be nothing unreasonable in permitting one of suitable discretion to make any fair contract of service, whether verbal or in writing, and the advantages may often constitute an adequate compensation for his labor. If he be very discreet he will not, however, make a contract to last without possible modification for any great length of time.^ 1 1 Bl. Com. 426, notes by Chitty and others. 2 See 2 Kent Com. 262, jxissim, last ed., and n. 8 There are many Englisli and American decisions as to the mutual rights and duties of master and apprentice, most of which are of local or limited application. The English cases will be found in Macdonald Handybook, 76, 216. Prospective damages cannot be recovered by the master where the apprentice unlawfully quits the service. Lewis v. Peachey, 1 H. & C. 518. To make the master liable on his covenant to teach a trade, it must appear that the apprentice was ready and willing to be taught. Raymond v. Minton, L. R. 1 Ex. 244. Such indentures are strictly construed and must be executed according to statute. St. Nicholas v. St. Bodolph, 12 C. B. n. s. 645. Ques- tions relating to the conviction of apprentices or workmen for misconduct con- stantly arise under the English statutes ; also as to the parish settlement of [646] NATURE OF THE RELATION. * 606 Third. * To come, then, to tlie strictly legal relation * 606 of master and servant. This contract arises purely pauper apprentices. Macdonald, 76 ; ib. 218. See Boast v. Firth, L. R. 4 C. P. 1, as to actions for breacli of indenture of apprenticeship. It is doubtful wliether courts of equity in England would cancel indentures of apprenticeship except for fraud. Webb v. England, 29 Beav. 44. The master has his remedies against third persons for enticement, on the principles usually applicable to servants. Cox V. Muncey, 6 C. B. n. s. 375. In this country, it would appear to be the rule that contracts of apprentice- ship, not executed in strict accordance with statute, are invalid ; or, ratlier, are voidable by the parties concerned. Maltby v. Harwood, 12 Barb. 473 ; Bolton V. Miller, 6 Ind. 262. But see Brewer v. Harris, 5 Gratt. 285. Yet the relation of master and servant may be inferred, notwithstanding, from the acts and con- duct of the parties. Maltby v. Harwood, ib. ; Page v. Marsh, 36 N. H. 305. In many instances, the courts exercise a supervisory influence ; and they will insist upon the provisions being reasonable ; in some cases, requiring the inser- tion of fair covenants on the master's part, such as instruction of the apprentice in some particular trade; and they will even cancel indentures which are un- suitable in terms or were fraudulently procured. Owens v. Ciiaplain, 3 Jones, 323 ; Finch v. Gore, 2 Swan, 326 ; Bakers v. Winfrey, 15 B. Monr. 499 ; Lam- moth V. Maulsby, 8 Md. 5 ; Bell v. Herrington, 3 Jones, 320 ; Hatcher v. Cutts, 42 Geo. 616. Both in this country and in England, the apprentice on reaching full age may abandon the contract, though the rule of avoidance is not expressed with uniformity. Drew i-. Peckwell, 1 E. D. Smith, 408; Walker r. Chambers, 5 Harring. 311 ; Forsyth v. Hastings, 27 Vt. 646 ; Wray v West, 15 L. T. n. s. 180, Q. B. It is held that overseers of the poor, in binding out paupers as ap- prentices, act as public oflBcers and not as the agents of their towns. Glidden v. Unity, 10 Fost. 104. And see Bardwell r. Purrington, 107 Mass. 419. The master's right of custody as against an unwilling apprentice, who wishes to return to his parents, appears in this country to be quite doubtful, though the indentures be well drawn ; the wishes of the child being apparently regarded as paramount. People v. Pillow, 1 Sandf. Sup. 672. In several instances, where imperfect indentures had been terminated, the master was held not liable for the apprentice's services on a quantum meruit, their original engagement contemplat- ing nothing of the kind. Maltby v. Harwood, 12 Barb. 473 ; Page v. Marsh, 36 N. H. 305; Hudson v. Worden, 39 Vt. 382. The assignment of apprenticeship is in some States pronounced void, the trust being personal ; and in general it is voidable by the infant himself. Tucker v. Magee, 18 Ala. 99 ; Huffman v. Rout, 2 Met. (Ky.)50; Allison v. Norwood, Busbee, 414; Commonwealth v. Van Lear, 1 S. & R. 248 ; Phelps r. Culver, 6 Vt. 430. Yet the infant's renewed assent may give force to it. See Williams v. Finch, 2 Barb. 208; Nickerson v. Howard, 19 Johns. 113. In some States, and perhaps in all, infancy is a good plea to action of covenant on such indentures. M'Knight v. Hogg, 1 Const. 117. See Brock V. Parker, 5 Ind. 538. As to the construction and method of execution of such indentures, see also Whitmore v. Whitcomb, 43 Me. 4-58 ; Van Dorn v. Young, 13 Barb. 286 ; Glidden v. Unity, 10 Fost. 104 ; Wright v. Brown, 5 Md. 37. For enticement of an apprentice, the master has the usual remedies against third persons ; and sometimes tlie party enticing may be indicted. Holhday v. [047] * 606 MASTER AND SERVANT. * 607 upon the hiring. If the * hiring be general, without any particular time limited, the old law construes it into a year's hiring.^ But the equity of this rule extended only to such employment as the change of seasons affected ; as where the servant lived with his master or worked at agri- culture. By custom, such contracts have become determin- able in the case of domestic servants, upon a month's notice, or, what is an equivalent, payment of a month's wages.^ Laborers are hired frequently by the day, and to hire by the week is not unusual."^ Yet, as to hiring in general, the rule still is that if master and servant engage without mentioning the time nor the frequency of payment, it is a general hiring, and in point of law a hiring for a year.* Custom modifies this principle, and the date and frequency of periodical pay- ments are material circumstances in each case. The principle of yearly hiring is applicable to all contracts of hiring and service, whether written or unwritten, whether express or Gamble, 18 111. 35; Bardwell v. Purrington, 107 Mass. 419; Doane v. Covel, 56 Me. 527 ; Hooks v. Perkins, Busbee, 21. Thougli this seems to be because of the relation of servant rather than apprentice. See ch. 4, infra. And a father who executes such indenture is bound to exercise his paternal authority to aid in its enforcement. Van Dorn v. Young, 13 Barb. 286. A settlement between master and apprentice made soon after the expiration of the term will be viewed with great jealousy. McGunigal v. Mong, 5 Barr, 269. As a rule, except in cases of paupers, both the English and American statutes require that the infant shall execute the deed, if of fourteen, as well as his parents, and the policy of the law is against binding out one of discreet years, unless he is made a party to the instrument. See 2 Kent Com. last ed. 263, 264, and notes ; Stats. Vermont, New York, Maine, &c. The infant's informal assent will not bind him. Com- monwealth V. Moore, 1 Aslim. 123 ; Squire v. Whipple, 1 Vt. 69. But see Fisher v. Lunger, 4 Vroom, 100. It must be distinctly expressed in tlie indent- ure. Harper i>. Gilbert, 5 Cush. 417. And where the court binds out, prudence requires that the infant should be present. Mitchell v. Mitcliell, 67 N. C. 307. The mother's consent, too, as parent, where the father is dead, or incapacitated from giving consent, is favored in many States. People v. Gates, 43 N. Y. 40. And under our statutes, a child may frequently be apprenticed to Shakers, as well as to any other master. People v. Gates, 43 N. Y. 40 ; Curtis v. Curtis, 5 Gray, 535. An apprentice's residence during minority would appear to be that of his master. Maddox v. State, 32 Ind. 111. 1 Co. Litt. 42; 1 Bl. Com. 425. ■^ Nowlan v. Ablett, 2 Cr., M. & R. 54 ; Fawcett v. Cash, 5 B. & Ad. 904 ; Fewings v. Tisdal, 1 Exch. 295. 3 R. V. Pucklechurch, 5 East, 382. * Fawcett v. Cash, 5 B. & Ad. 904. See Lilley v. Elwin, 11 Q. B. 742. [648] NATURE OF THE RELATION. * 607 implied, and whatever the nature of the service ; its modifi- cations arise whenever the contract contains stipulations inconsistent with its application, or where, from some well- known custom upon tlie subject, the parties may be considered to have contracted with sole reference to such custom.^ In this country, at least, if a contract for hiring is at so much per month, it will readily be presumed that the hiring was by the month, even if nothing was said about the term of ser- vice.^ But the periodical payment is not conclusive as to the periodical hiring where the evidence shows an arrangement for a different period. ^ The rule as to hiring does not apply to cases where there has been a service, but no contract of hiring and no circum- stances from which a contract can be inferred. And a con- tract of hiring cannot be presumed where the circumstances tend to rebut such a presumption, as where paupers have been taken * to live with their relatives out of * 608 charity,* or where the agreement was for cohabitation and not for service.^ Where either party is at liberty to determine the service at any time without notice, the hiring cannot be considered a yearly contract.^ Or if the hiring be expressly for less than a year ; although done purposely to avoid the consequences of a yearly hiring.'^ Or if tlie agreement be to do work by the piece or job.^ Or if certain portions of the year are specially excepted.^ Or if the master has not entire control, and the servant is at liberty when not engaged for his master to work for others ; though this rule is to be cautiously ap- 1 Smith Mast. & Serv. 41, 42 ; Rex v. Worfield, 5 T. R. 506 ; Baxter v. Nurse, 1 Car. & K. 10 ; Hathaway v. Bennett, 10 N. Y. 108. 2 Beach v. Mullin, 5 Vroom, 343. '^ Tatterson v. Suffolk Man. Co., 106 Mass. 56 ; Prentiss v. Ledyard, 28 Wis. 131. * Rex V. Sow, 1 B. & Aid. 178 ; Smitli Mast. & Serv. 42. 5 Rex V. Northwingfield, 1 B. & Ad. 912. 6 Smith Mast. & Serv. 43, 44, and cases cited ; Rex v. Great Bowden, 9 B. & C. 24'.), and cases cited. ^ Rex V. Standon Massey, 10 East, 576 ; Dunsford v. Ridgwicli, 2 Salli. 535 ; Rex V. Coggesliall, 6 M. & S. 264. 8 Rex V. Woodhurst, 1 B. & Aid. 325. 9 Rex V. St. Helen's, 4 B. & Ad. 726. [ 649] .^*#^ * 608 MASTER AND SERVANT. plied.i The same principle holds good where the hours of working are limited by contract.^ We find at the outset, then, a distinction made in practice between servants, menial or domestic, and other servants ; which distinction is founded upon a custom of dissolving the relation, not at the end of a year, but at any time upon giving the other a month's wages. An English writer says that no general rule can be laid down as to who do and who do not come within the category of menial servants ; every case must stand upon its own circumstances.^ But in a late case, where the subject was fully discussed, the disposition manifested was to extend the word " domestic " beyond the signification " menial ; " and a family huntsman was brought within the above rule.* The reason is apparently that contracts * 609 for services * which bring the parties into such close proximity and frequency of intercourse that they are valuable only when mutually agreeable and otherwise intol- erably annoying, should be readily terminated at the option of either party. ^ A governess engaged at a yearly salary, though residing in the house, is. however, held not to be within the class of menial or domestic servants : regard being paid by the court to the dignity of her position.^ But the head gardener is, though living not in the master's house, but in his own cot- tage in the domain.'^ At the' common law, a servant might be hired either by deed or by a parol contract, but when hired or retained by deed he could only be discharged by an equally formal instru- ment ; when hired by parol he might be discharged by parol.^ 1 Rex V. Killhigholme, 10 B. & C. 802. See Reg. v. Ravenstonedale, 12 Ad. & El. 73. 2 Reg. V. Preston, 4 Q. B. 597. » Smith Mast. & Serv. 2d ed. 52. * NicoU V. Greaves, 17 C. B. n. s. 27. The dictionaries furnisii little aid on this point. 5 Per Erie, C. J., ib. See further, Nowlan v. Ablett, 2 Cr., M. & R. 54 ; John- son V. Blenkensopp, 5 Jur. 807 ; Crocker v. Molyneux, 8 Car. & P. 470 ; Ex parte Walter, L. R. 15 Eq. 412 ; Stone v. Western Transportation Co., 38 N. Y. 240. 6 Todd V. Kerrich, 8 Exch. 151 ; 14 E. L. & Eq. 433. 7 Nowlan v. Ablett, 2 Cr., M. & R. 54. 8 Smith Mast. & Serv. 16 ; Dalt. Just. c. 58. [ 650] NATURE OF THE RELATION. * 609 But since the enactment of the statute of frauds, contracts of hiring must be frequently expressed in writing, in order to be legally effectual. Under this statute, the contract of ser- vice may be verbally made and proved if it is capable of per- formance within a year ; otherwise, it must be in writing. Hence, a verbal agreement to hire for a year, commencing at a future day, is insufficient.^ In short, a contract for personal service which is not to go into operation for a year, or is to continue in force and hold the parties together for a longer period, must be in writing.^ Yet it seems that a contract made on a certain day to serve for a year from the following day is not within the statute of frauds.^ Restraint of trade sometimes enters as an element into agreements between master and servant. If profes- sional men, * manufacturers, or tradesmen take clerks, * 610 apprentices, or workmen into their employ, and require them to agree that they will not carr}' on a like profession, manufacture, or trade within certain limits ; this for the pur- pose of securing themselves against competition ; the contract, being in restraint of trade, is illegal and void.'* The general rule is that, in order to render such a contract valid at law, the restraint must be (1st), partial only ; (2d), upon an adequate, or, as the law now seems to stand, not a mere colorable re- striction ; (3d), reasonable and not oppressive.^ Even then equity would be loth to enforce it specifically if it be at all hard or even comjolex ; ^ though in many cases it will do so.' To the same general head as contracts in restraint of trade i Bracegirdle v. Heald, 1 B. & Aid. 722; Giraud v. Richmond, 2 C. B. 835. 2 See 1 Smith Lead. Cas. 432, and American notes, where this subject is thorouglily examined. 3 Cawthorn v. Cordrey, 32 L. J. n. s. C. P. 152. * Com. Dig. " Trade," D. 3 ; Mitchel v. Reynolds, 1 P. Wms. 181 ; s. c. 1 Smitli Lead. Cas. 508, Ain. ed. notes ; Lange v. AVerk, 2 Ohio, n. s. 520 ; Law- rence I'. Kidder, 10 Barb. 641 ; Oilman v. Dwight, 13 Gray, 35G ; Duffey v. Shockey, 11 Ind. 71. 5 1 Smitli Lead. Cas. ib. '^ Kemble i'. Kcan, 6 Sm. 335. 7 Kemble v. Kean, 6 Sim. 335 ; Benwell v. Inns, 24 Beav. 307. And see Smitli Mast. & Serv. 51 et seq. ; Mallan v. May, 11 M. & W. 653 ; Mumford v. Gething, 7 C. B. n. s. 305. [ 651] * 610 MASTER AND SERVANT. belong contracts by which the services of individuals are secured for a specified time, or for life, to a particular master. Contracts for life are not illegal at common law ; but they are very strongly objectionable ; and, in this country, it is doubt- ful whether they would ever be enforced, so contrary are they to the spirit of our institutions.^ Yet some writers commend such contracts ; and in England agreements whereby, in sub- stance, workmen engaged to serve, for a term of seven years, certain persons or their firm, or again, at a certain scale of wages subject to determine in the event of sickness or inca- pacity of the men or cessation of business by the employer, were considered valid and unobjectionable .^ But, in Massachusetts, a contract made by an adult * 611 with *a citizen of the United States to serve him, " his executors and assigns," for five years, without fixing the nature and extent of the services, or the place of their performance, in consideration of ten dollars, and of being fed, clothed, and lodged, and at the expiration of the con- tract being paid "the customary freedom dues," is pronounced illegal and void, even if valid where made.^ " Such a con- tract, it is scarcely necessary to say, is against the policy of our institutions and laws," was the language of the court. As a general rule, every person of full age, free from all other incompatible engagements, may become either a master or a servant ; and the service need not be performed under a legally binding contract, for the service may be constituted de facto. ^ The usual law of contracts applies to all who enter the relation. And arrangements for remunerating a servant by a portion of the profits may, under some circumstances, constitute him a partner rather than a mere servant.^ The relation of master and servant is created, so far as may affect the rights of third persons, when one suffers another to « See Wallis v. Day, 2 M. & W. 277 ; 1 Smith Lead. Cas. 521. - Pilkington v. Scott, 15 M. & W. 657 ; Hartley v. Cummings, 5 C. B. 247. See 1 Smith Lead. Cas. ib. 3 Parsons v. Trask, 7 Gray, 473. And see Mary Clark's Case, 1 Blackf. (Ind.) 122. * Smith Mast. & Serv. 1. » ib. 29. [652 J NATURE OF THE RELATION. *611 proceed in a service in which the latter engaged only as a volunteer.^ Yet one cannot by merely rendering services voluntarily, without request or assent, compel the other to become his debtor.^ A municipal or other corporation may sustain the quasi relation of master and servant with those in its employ, so as to be liable for the negligence of the person employed.-^ Such a relation between railroad companies and those in their employ is constantly recognized in the courts. The two terms, " master and servant " and " prin- cipal and * agent," are, in fact, frequentl}- interchanged * 612 as though identical in meaning, and, indeed, one is usually quite as exact as the other. In Ohio, the distinguish- ing feature of the relation of service has been said to be that the employer keeps control over the mode and manner of work, and this applies to contractor, agent, oi* servant ; in- dependent contracts, however, not falling within the rule.* But, in Illinois, contractors building a railroad appear to be treated as servants of the company in a more extended sense.^ In Connecticut, it is said that the manner of paj'ing for work constitutes no criterion, nor the existence of actual present control and supervision on the part of the employer ; but that these are both circumstances to be weighed in each case.^ Where one is neither employed, paid, nor controlled by another, he is not his servant in the legal sense.' We have seen that adult children remaining in a family may be de facto servants, so as to lay the foundation of certain suits. We are now to inquire in what manner the relation of master and servant may be terminated. The causes which justify discharge by the master are various, and the rule de- 1 Hill V. Morey, 26 Vt. 178. 2 Webl) V. Cole, 20 N. H. 490 ; Alton v. Mulledy, 21 111. 76. 5 See Scott V. Mayor of Manchester, 37 E. L. & Eq. 495. * Cincinnati v. Stone, 5 Ohio, n. s. 38. * Cliicago, &c., R. R. Co. v. McCarthy, 20 111. 385. There is much difficulty in applying the rule as to railroad contractors. See 1 Redf. Railways, 60G. " Corhin v. American Mills, 27 Conn. 274. 1 McGuire v. Grant, 1 Dutch. 356. See Water Co. v. Ware, 16 Wall. 566. [653] * 612 MASTER AND SERVANT. pends somewhat upon the nature of the particular employ- ment in question. But most decisions are reducible to three leading cLisses : first, wilful disobedience of a lawful order ; second, gross moral misconduct ; third, habitual negligence in business, or other serious detriment to the master's in- terests.^ An instance of the first class came before Lord Ellen- borough, where a farmer's servant was ordered to go with the horses a mile off just as dinner was ready, and he said he would not go until he had had his dinner.^ And another, more recent, is where a farm-servant refused to work * 613 during harvest without * beer.^ In a carefully con- sidered English case, the court went even so far as to justify dismissal of a house-maid who persisted in leaving the house without permission to visit a sick and dying mother.* In these cases, and especiall}^ the last, the author- ity of the master is very strongly upheld ; more so, perhaps, than American policy would concede. Where the misconduct is slight, and a first offence, where the reasons for disobedi- ence are extreme, and where the servant's general conduct is exemplar}", this, it seems, ought to go strongly in his own justification ; for the mutuality of contracts is always properly considered. An obstinate refusal to do an unlawful act is clearly no ground for dismissal.^ But for insolence and wilful disobedience of orders a servant may generally be dismissed.^ Instances of the second class are not uncommon. Immo- rality is sufficient cause for dismissal ; ' even the pregnancy of a maid-servant, according to Lord Mansfield.^ Embezzle- ment is a good ground, though the sum embezzled be less than the arrears of wages.^ The same is true of robbery. ^° 1 Smith Mast. & Serv. 70 ; 2 Kent Com. 259. 2 Spain V. Arnott, 2 Stark. 25G. » Lilley v. Elwin, 11 Q. B. 742. 4 Turner v. Mason, 14 M. & W. 112. And see Smith Mast. & Serv. 71. 5 See Jacquot v. Bourra, 7 Dowl. 348. 6 Beach v. Mullin, 5 Vroom, 343. 7 Atkin V. Acton, 4 Car. & P. 208. » Cakl. 11 ; ib. 57. 9 Brown v. Croft, 6 Car. & P. 16, n. ; Spotswood v. Barrow, 5 Excli. 110. i" Libhart v. Wood, 1 W. & S. 2G5 ; Trotman v. Dunn, 4 Camp. 211 ; Smith Mast. & Serv. 72. NATURE OF THE RELATION. * 6 1 3 Habitual drunkenness is doubtless a good ground, if it seriously interferes with the due performance of the par- ticular service.^ Acts and conduct which pointedly indicate fraudulent misbehavior towards the master may, and should, justify prompt dismissal.^ The third class furnishes many examples ; and yet the rule here is to be laid down with much caution, for a practical ap- pUcation is difficult. There are some English cases where conduct which might ordinarily seem justifiable on a servant's part has been punished by dismissal, the court carrying out the prevailing policy against teaching the secrets of trade to * strangers or foreigners.^ So have many deci- * 614 sions seemed to sustain the master, where the servant lacked in blind devotion to his selfish interests, or asserted a generous independence of opinion a little too boldly.'* But at the present day, certainly in America, more might be claimed for the servant and less for the master. Yet the legal principle is correct that for habitual negligence, or for such conduct as prevents a mutual agreement from being carried out to the reasonable satisfaction of the employer, the person employed may be dismissed ; nor would it seem to matter much whether it be through wantonness or palpable inefficiency amounting to a breach of implied undertaking.^ A servant betraying his master's confidence may, it seems, be discharged.^ But the relation continues though the master obtains a commitment of the servant to prison.'^ So, where absence is warrantable, or where the absence is temporary for no bad purpose, and the master has suffered no serious loss thereby.^ Where serious danger, though perhaps not actual damage, is occasioned to the master's business by his 1 Gonsolis V. Gearliart, 31 Mis. 585. See Lord Dennian, in Wise i: Wilson, 1 Car. & K. 662. - See Horton v. McMurtry, 5 Hurl. & Nor. 667 ; Singer v. McCormick, 4 W. & S. 266. 3 Turner v. Robinson, 5 B. & Ad. 789. * See Lacy v. Osbaldiston, 8 Car. & P. 80 ; Ridgway v. Hungerford Market Co., 3 Ad. & El. 171 ; Amor v. Fearon, 9 Ad. & El. 548. 5 See Callo v. Brouncker, 4 Car. & P. 518, cited Sniitii Mast. & Serv. 73. 6 Beeston v. Collycr, 2 Car. & P. 609. ^ Rex V. Barton, 2 M. & S. 329. » Filleul v. Armstrong, 7 Ad. & El. 557. [ Qod ] * 614 MASTER AND SERVANT. servant's conduct, he is justified in dismissing the servant on that account ; as if an apothecary's assistant should frequently employ an ignorant shop-boy to make up prescriptions to save himself work.^ Herein the servant's negligence amounts to a breach of his implied undertaking. Subject to what has already been said concerning contracts in restraint of trade, we may add that a servant may lawfully be discharged on the ground that he is engaging in another business in competition with and calculated seriously to injure that of his employer. Here the cause of discharge would be serious detriment to the master's interests, if not habitual negligence. 2 * 615 * If good ground of discharge exists, and is known to the master at the time of dismissal, it is sufficient to justify the discharge, although he chose to allege some other cause.'^ But it would seem that if the master, at the time he discharged the servant, did not know of any act of mis- conduct on the servant's part which would justify dismissal, the mere existence of such misconduct would not afterwards avail in his own justification.'^ And a waiver of the right to discharge a servant may be presumed from circumstances. Thus, where a servant was to receive payment at a specified rate if he continued temperate and faithful in employer's service, the fact that he was occasionally intemperate and discontinued service for short periods would not prevent his recovering the stipulated rate for the time actually spent in such service, if he was received back into it, and continued therein without any new arrangement made or any intimation that the old one was terminated.^ A contract of service, like all other contracts, may be dis- 1 Wise V. \Vilson, 1 Car. & K. G62. Though here the relation was admitted to be not strictly that of servant or apprentice. See furtlier, Harover v. Corne- lius, 5 C. B. N. s. 236 ; Stanton v. Bell, 2 Hawks, 145. 2 Adams Express Co. v. Trego, 35 Md. 47 ; supra, pp. 609, 610. 3 Smith Mast. & Serv. 76, and cases cited ; Baillie v. Kell, 4 Bing. N. C. 638 ; Ridgway i-. Hungerford Market Co., 3 Ad. & El. 171 ; Mercer v. Whall, 5 Q. B. 447. < Cussons V. Skinner, 11 M. & W. 161. But see Spotswood v. Barrow, 5 Exch. 110. * Prentiss v. Ledyard, 28 Wis. 131. [ 6o6 ] NATURE OF THE RELATION. *615 solved by mutual consent, or by the death of either party, or by the comj)letion of the term of service.^ A servant who occupies premises belonging to his master is not presumed to occupy as tenant, but by virtue of the relation of service ; and if such be the case, he acquires no estate therein by the performance of his duties, even though he be also allowed to use the premises for carrying on an indepen- dent business of his own.^ If properly dismissed from the service, therefore, he has no right to remain until ejected upon notice as a tenant ; but the termination of his ser\'ice is likewise the termination of his right to the premises. 1 See Thomas v. Williams, 1 Ad. & El. 685. 2 White V. Bayley, 10 C. B. n. s. 227 ; Smith Mast. & Serr. 40, 41. 42 [ 657 ] * 616 MASTER AND SERVANT. *616 * CHAPTER 11. MUTUAL OBLIGATIONS OF MASTER AND SERVANT. Some obligations arising from the relation of service rest more especially upon the master ; others again more especially upon the servant. First, as to the master. A moral obligation resting upon every master whose connection -with his servant is a very close one, the latter being manifestly on an inferior footing, is to exert a good influence, to regard the servant's mental and spiritual well-being. Positive law enjoins the same duty in a variety of instances with regard to apprentices and work- men under age, by requiring their masters to teach them to read, write, and cipher, to see that they attend public worship, and, in general, to take due care of their morals.^ From such view of a master's obligation comes, doubtless, a rule which some deduce from the old books, that a master has the common-law right to chastise his servant or appren- tice moderately ; but, on principle, the limitation must be to those servants or apprentices under age, who, by positive law, are committed somewhat as children to their master's keep- ing.2 The right is denied as to ordinary servants in this country.-^ " The only civil remedies," says an English writer, " a master has for idleness, disobedience, or other dereliction of duty, or breach of contract on the part of a servant, are, either to bring an action against him, or, as Puffendorf * 617 expresses it, ' to expel * the lazy drone from his family, and leave him to his own beggarly condition.' "* 1 See stats. N. Y., Conn., &c., in 2 Kent Com. 262, and n. 2 See Bac. Abr. tit. Master and Servant (N) ; 1 Bl. Com. 428; 2 Kent Com. 260. 3 Commonwealth v. Baird, 1 Aslim. 267. 4 Smith Mast. & Serv. 69; Puff. Law Nature, b. 6, ch. 3, § 4. [ 658] MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 617 As to necessaries, Kent pronounces the better opinion to be that the master is not bound to provide even a menial serA'ant with medical attendance and medicines during sickness. ^ And so far as sjoecial medical attendance furnished an adult servant capable of taking care of himself, is concerned, the rule is so settled ; 2 though Lord Kenyon, and perhaps Lord Eldon, once thought otherwise.^ Yet a master is legally bound to provide medicines for his apprentice.^ And reference to the authori- ties will show that, as to domestic servants, courts are not indisposed to infer authority from the master's own conduct.^ The duty of a master to provide food and other necessaries rests upon contract, express or implied ; and it was the Eng- lish doctrine, as expressed in 1802, that neglect to furnish sufficient food, clothing, or lodging to any infant of tender years unable to provide for and take care of himself, whether child, apprentice, or servant, so as thereliy to injure liis health, was an indictable offence ; which principle a later English stat- ute has extended even further, wherever there is the legal liability to provide necessaries.^ It may be presumed that in most cases, the reasonable value of necessaries furnished a servant might be set off against the servant's wages, where the master was not legally bound to supply them. How far the master is bound to find work for his servant has sometimes been considered in the courts. The legal principle is that of substantial justice. A master may hire a servant for a certain period, and, paying the wages or salary agreed upon, may keep him in sufficient work or not ; but he cannot deprive the servant of his full compensation through a * discontinuance of his own business, or * 618 from other like cause." But where the contract of 1 2 Kent Com. 261. 2 Smith Mast. & Serv. 118-120; Wennall i^. Adney, 3 B. & P. 247; Sweet- water Co. V. Glover, 29 Geo. 309; Clark v. Waterman, 7 Vt. 76. 3 Scarman v. Castell, 1 Esp. 270; Simmons v. Wilmott, 3 Esp. 93. ♦ Reg. V. Smith, 8 Car. & P. 153. 5 Cooper V. Pliillips, 4 Car. & P. 581 ; Sellen v. Norman, 4 Car. & P. 80; FriencTs Case, Russ. & Ry. C. C. 22. 6 14 & 15 Vict. c. 11. As to indicting the husband rather than the wife, see Rex V. Saunders, 7 Car. & P. 277. See Smith lAList. & Serv. 117. 1 Aspdin V. Austin, 5 Q. B. 671 ; Elderton v. Emmens, 6 C. B. 160; Smith Mast. & Serv. 49, 50. [ 659 ] * 618 MASTER AND SERVANT. hiring merely contains an undertaking to pay certain stipu- lated wages in proportion to the work done, there is no im- plied obligation on the master's part to find work ; though the disposition is to construe contracts of doubtful significance into an agreement on the master's part to enable the servant to earn regular and reasonable wages. ^ It is the duty of every master to indemnify his servant from the consequences of lawful acts, done in pursuance of orders, which the servant was bound to obey. And as to an act not malum in se, but which might have been either lawful or un- lawful, and which the servant was induced by the conduct of his master to believe to be lawful, the rule of indemnity like- wise applies.^ But it would appear that for an act malum in se, or which the servant knew to be unlawful, although done by him in obedience to his master's orders, the master is not bound to indemnify his servant ; for the servant should have refused obedience.^ It is likewise the duty of the master to receive into his ser- vice a person already engaged, and if he fails to do so, he is liable in damages. And yet here a legally biAding contract would have to be shown by the j)laintiff.'* Nor will courts of chancery grant injunction to compel specific performance, ex- cept perhaps in cases where the relation exists only by remote analogy and the connection between master and servant is not close ; the remedy must otherwise be left to the common- law courts.^ " Consider," said Lord Chancellor Truro, " what the effect would be ; how is it possible for an employer or an agent to go on in the intimate connection which such a * 619 contract is * calculated to create ? " ^ So, too, has in- junction been lately refused to enforce a contract of apprenticeship, as a proceeding without precedent.'' 1 See Pilkington v. Scott, 15 M. & W. 657 ; Hartley v. Cummings, 5 C. B. 247 ; Smith Mast. & Serv. 48, 50 ; Sykes v. Dixon, 9 Ad. & El. 693. 2 Collins V. Evans, 5 Q. B. 830 ; Rawlings v. Bell, 1 C. B. 951 ; Cro. Jac. 468; Story Agency, § 339 ; Smith Mast. & Serv. 121. ^ Smith, ib. * Bracegirdle v. Heald, 1 B. & Aid. 722 ; Blogg v. Kent, 6 Bing. 614. » Stocker v. Brockelbank, 20 L. J. Ch. x. s. 408. See Willis v. Childe, 13 Beav. 117. 6 Stocker v. Brockelbank, ib. ^ Webb v. England, 29 Beav. 44. [660] MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 619 Two remedies, both at common law, are open to every servant who has been wrongfully discharged from his master's employ : one, to treat the contract as a continuing one, and sue in damages for breach thereof; the other to consider it as rescinded, and sue his master on a quantum meruit for the services he has actually rendered.^ Formerly, it was thought that he had a third remedy, namely, to wait till the termina- tion of the period of service, and then sue for his whole wages in assumpsit, relying on the doctrine of constructive service ;^ but it would appear that this course cannot now be adopted; for the discharged servant is bound to make the best use of his time and seek out new employment.^ The first is the remedy usually adopted. To sustain this action, the servant must have been ready and willing to serve ; but he need not offer to do so. The amount of damages which he should recover must depend upon the nature of the contract and the wages agreed upon ; the jury may exercise a large discretion ; and, where no specific wages have been agreed upon, the measure is fixed by considering what is the usual rate of wages for the employment contracted for, and what time would be lost before another situation could be obtained.* The second form of action treats the contract of service and hiring as rescinded ; and the ground on which the servant sues is one apphcable to contracts in general ; namely, that when one party to a contract has abso- lutely refused to perform something * essential on his * 620 side of the contract, the other party is at liberty to terminate it, and sue for services rendered under a quantum 1 Lilley v. Elwin, 11 Q. B. 755; Blanche v. Colbum, 8 Bing. 14 ; Colburn v. Woodworth, 31 Barb. 381. 2 Gaiulall V. Pontigny, 1 Stark. 157 ; Collins v. Price, 5 Bing. 132 ; 2 Smith Lead. Cas. 17, n. to Cutter v. Powell. » Smith Mast. & Serv. 94, n., and cases cited ; Fewings v. Tisdal, 1 Exch. 295; Beckham v. Drake, 2 Ho. Lords Cas. 6U6 ; Slierman v. Champlain Trans. Co., 31 Vt. 1G2 ; Goodman v. Pocock, 15 Q. B. 576 ; Chamberlin v. Morgan, 68 Penn. St. 168 ; Perry v. Simpson, &c., Co., 37 Conn. 520. * See Beckham v. Drake, 2 IIo. Lords Cas. 606 ; Fewings v. Tisdal, 1 Exch. 295; Smith v. Thompson, 8 C. B. 44; Given v. Charron, 15 Md. 502; Nations V. Cudd, 22 Tex. 650; Sherman v. Champlain Trans. Co., 31 Vt. 162. [ 661 ] * 620 MASTER AND SERVANT. meruit} Where this remedy is elected the servant can only recover wages for the period during which he actually served.^ But while the servant may elect either of the two remedies, he cannot pursue them together; and if he sues on both counts in his action he must take the verdict upon one only.^ Wages are due in general for work performed ; and al- though the amount of wages was left to the master, a reasona- ble remuneration must be given > But the mere existence of a valid contract of hiring and service does not necessarily imply a contract to pay wages ; for board, lodging, clothes, or the opportunity of learning business, might be sufficient com- pensation ; particularly in case of the young.^ So any em- ployer has a right to judge for himself how he will carry on his own business ; and workmen, having knowledge of the circumstances, must judge for themselves whether they will enter his service.^ The master is not bound to pay increased wages for in- creased labor, unless he has contracted to do so." Nor under an ordinary contract of hiring by the day is the person hired bound to prolong his services in order to complete any partic- ular piece of work on which he may happen to be employed.^ Nor is there any new implied contract to pay wages on * 621 simple * dissolution of a special contract.^ The action for wages should, of course, be brought against the person by or for whom the plaintiff was hired ; and to ascer- tain this is not always easy.^^ 1 2 Smith Lead. Cas. 17, n. to Cutter v. Powell, and authorities cited ; Smith Mast. & Serv. 99. See Goodman v. Pocock, 15 Q. B. 576. 2 Fewings v. Tisdal, 1 Exch. 295. 3 Goodman v. Pocock, 15 Q. B. 576 ; Colburn v. Woodworth, 31 Barb. 381. 4 Bryant v. Fhght, 5 M. & W. 114; Peacock v. Peacock, 2 Camp. 45; Law- son V. Perry, Wright, 242. But see Taylor v. Brewer, 1 M. & S. 290. See Goodman v. Pocock, 15 Q. B. 576 ; Costigan v. Mohawk R. R. Co., 2 Denio, 609. 5 Smith Mast. «& Serv. 100, n. ; Rex v. Shinfield, 14 East, 541 ; Davies t;.Davies, 9 Car. & P. 87 ; Maltby v. Harwood, 12 Barb. 473 ; Meredith v. Crawford, 34 Ind. 399. 6 Hayden r. Smitliville, &c., Co., 29 Conn. 548. T Bell V. Drummond, Peake, 45. ^ Wyngert v. Norton, 4 Mich. 286. 9 Lamburn v. Cruden, 2 Man. & Gr. 253. !« See Smith Mast. & Serv. 104, 105, and cases cited. [GG2] MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 621 The master cannot set off against the servant's claim for wages, money paid by him to his own medical attendant, unless the servant so stipulated.^ Nor, in an action for an infant's wages, money advanced for articles not necessaries ; or coach fare for her mother.^ Nor can he set off against wages a claim for articles lost or broken by carelessness ; he should sue in a cross-action.^ But, in an action of compen- sation for services, the employer may show, by way of recoup- ment of damages, loss sustained through the negligence of the person employed."^ Modern bankruptcy acts frequently provide that servants or clerks shall be preferred to general creditors in the distri- bution of assets.^ It would appear that the bankruptcy of the master does not, per se, dissolve a contract of hiring ; yet the assignees cannot let out personal services for hira.° The death of the master discharges his servant ; and, ac- cording to the strict ride of law, it would appear that where the contract is entire for a year's service, and neither custom nor statute intervenes, the death of the master in the middle of the year utterly deprives the servant of compensation for the broken period." A contract of apprenticeship, in so far as it was a personal contract, is also terminated by the master's * death.^ But the rule of apportionment is * 622 now so much favored, that it is apprehended to be unlikely that a construction so inequitable would in this day be permitted to apply to contracts which left the intention of the parties in doubt on this point. And custom is applicable, in the case of domestic servants at least, so as to give them 1 Sellen v. Norman, 4 Car. & P. 80. ■■2 Heilgeley v. Holt, 4 Car. &'P. 104. ' LeLoir c. Bristow, 4 Camp. 134. 4 Still V. Hall, 20 Wend. 51 ; Pixler v. Nichols, 8 Iowa, 106 ; English v. Wil- son, 34 Ala. 201. See, as to an infant, Meeker v. Hurd, 31 Vt. 639. And see Stoddard v. Treadvvell, 26 Cal. 294. 5 See 12 & 13 Vict. c. 100 ; United States bankruptcy act, March 2, 1867, § 27. 6 See Thomas v. Williams, 1 Ad. & El. 685 ; Williams v. Chambers, 10 Q. B. 337. ■J 1 Wms. Ex'rs, 644 ; Smith Mast. & Serv. HI. But see Jackson v. Bridge, 12 Mod. 650. 8 Bac. Abr. tit. Master and Servant (G). But statutes are not always to this effect. Phoebe v. Jay, 1 Bre. 208. [6G3] * 622 MASTER AND SERVANT. wages for the whole time served, though they do not continue in service for ayear.^ The executors or administrators of the master are the persons to whom a servant must look for such arrears ; not an intermeddler with the estate, nor kindred.^ In some States, wages of domestic servants and laborers are made preferred debts ; independently of statute, it is not probable that they are so entitled.^ Legacies, if actually bequeathed to servants, are sometimes held to extinguish claims against tlie master's estate for wages.* On legal prin- ciple, moreover, when a servant dies in the middle of the term of his engagement, his representatives can, it seems, claim nothing ; but here again might custom apply the rule of apportionment.^ So where the servant leaves Avrongfully, or is dismissed by his master for rightful cause, the periodical pay-day not having come round, he can claim nothing pro rata.^ Yet, with regard to the common case of a hired ser- vant, though the hiring be in a general way, the understand- ing is common that the servant shall be entitled to his * 623 * wages for the time he serves.'^ Unless some such rule could be enforced, the stronger party would be constantly tempted to make dismissal a pretext for refusing to pay to the weaker the little pittance which was justly due. And, again, there are circumstances from which a waiver of forfeiture of the servant's accrued wages will be presumed even though the service was terminated by reason of the ser- vant's misconduct.^ 1 Cutter V. Powell, 6 T. R. 320 ; Smith Mast. & Serv. 112. 2 2 Wms. Ex'rs, 822, n., 3d ed.; Welchman v. Sturgis, 13 Q. B. 522. 8 2 Wms. Ex'rs, ib. But see 2 Bl. Com. 511. 4 See Booth v. Dean, 1 Myl. & K. 560; Smith Mast. & Serv. 343 et seq. But when work is rendered in consideration of a future legacy, and the legacy is not left, the servant may sue on a quantum meruit. See Nimmo v. Walker, 14 La. Ann. 581. i Smith Mast. & Serv. 115; Cutter v. Powell, 6 T. R. 320. 6 2 Smith Lead. Cas. 17, n. to Cutter v. Powell ; Spain i'. Arnott, 2 Stark. 236; Turner v. Robinson, 6 Car. & P. 15; Ridgway v. Hungerford Market Co., 3 Ad. & Ei. 171 ; Lane v. Pliillips, 6 Jones (Law), 455 ; Whitley v. Murray, 34 Ala. 155; Marsh v. Rulesson, 1 Wend. 514; Beach v. Mullin, 5 Vroom, 343. f See remarks in Cutter v. Powell, si(/)ra ; Smith Mast. & Serv. 116. And see Kessee v. Mayfield, 14 La. Ann. 90 ; Gates v. Davenport, 29 Barb. 160; Massey V. Taylor, 5 Cold. 447 ; Costigan v. Mohawk R. R. Co., 2 Denio, 609. . 8 Patnote v. Sanders, 41 Vt. 66 ; Prentiss v. Ledyard, 28 Wis. 131. [664] MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 623 The original contract of hiring may be changed without any new express contract of the parties ; this change being inferred from the facts, and the master's liability for wages fixed accordingly. Thus, one engaged to work on half time and receive half Avages, may have been actually employed on full time, and so may gain the right to recover full wages.^ And a change of employers having occurred by reason of some change of business, the new employers may render themselves liable for the wages of the person employed ; while, on the other hand, the original employer continues liable to the person employed, if the latter receives neither actual nor constructive notice that the change has occurred.^ Where the performance of a condition is prevented by the act of God, it is excused.^ And where one performs services under a contract, and is, before the expiration of the full period, disabled by sickness or inevitable accident from com- pleting his contract, he is entitled to recover as upon a quan- tum meruit for the period of such disabilit3^* Yet it seems that where illness or other cause renders one permanently incompetent to perform his contract, this is a sufficient cause of dismissal, if the employer choose to so regard it.^ Where the agreement provides that either party may ter- minate it at any time, the servant may quit at any time on his own motion, and recover on the contract for services ren- dered.^ But if the servant agrees to work for a given time, with the privilege of leaving if dissatisfied, he cannot recover if he leaves without alleging dissatisfaction, but merely to attend to other business.^ If the contract, though for a certain period, be terminated by mutual consent, recovery may be had on a quantum meruit for the services actually performed.^ And work accepted by 1 Edrington v. Leach, 34 Tex. 285. - Perry v. Simpson, &c., Co., 37 Conn. 408. ^ Cruise Dig. Condition, 41, 43. * Wolfe V. Howes, 20 N. Y, 197 ; Cuckson v. Stones, 1 El. & EU248 ; Fenton V. Clark, 11 Vt. 557 ; Seaver v. Morse, 20 Vt. 620. * See Harmer v. Cornelius, 5 C. B. n. s. 236; Cuckson v. Stones, supra; Seaver v. Morse, 20 Vt. 620. 6 Evans i-. Bennett, 7 Wis. 404. ^ Monell v. Burns, 4 Denio, 121. 8 Given v, Cliarron, 15 Md. 502 ; Patnote v. Sanders, 41 Vt. 66. [ 665] * 623 MASTER AND SERVANT. the employer, though not done according to the terms of the contract, must be paid for at its fair value, not exceeding the stipulated price. ^ So a person employed on a particu- * 624 lar service * by the month or year, may have a right to compensation for services rendered on request, out of the range of such employment, even without express contract as to the terms of payment.^ Conditions precedent, such as submission of work to inspectors, performance according to the estimate of third parties, special stipulations and the like, may enter into such contracts.^ And where the agreement was that the value of labor and services should be applied in payment of land for the purchase of which no written con- tract had been made out, it was held that an action for the value of the labor and services would not lie.* But if I sell land to another to be paid for in work which he presently performs, and I then refuse to convey, he may recover pay for his work.^ So it was held where the defend- ant had contracted to sell the plaintiff a house, which the j)laintiff, with the defendant's knowledge and without objec- tion from him, put in repair, and also performed labor in part-payment ; and where afterwards he was prevented from completing his contract by the fault of the defendant ; that he might recover for both the labor performed and the value of the improvements.^ * 625 * Mr. Starkie observes that the giving a character of a servant is one of the most ordinary communications which a member of society is called on to make, but is a duty of great importance to the interests of the public ; and in respect of that duty a party offends grievously against the interests of the community in giving a good character where it is not deserved, or against justice and humanity in either mjuriously refusing to give a character, or in designedly misrepresenting one to the detriment of the individual.''' 1 English^. Wilson, 34 Ala. 201; Dermott v. Jones, 23 How. (U. S.) 220. 2 Cincinnati, &c., R. R. Co. v. Clarkson, 7 Inil. 51)5. 3 See Baason v. Baehr, 7 Wis. 516 ; Butler v. Tucker, 24 Wend. 447. * Congdon v. Perry, 13 Gray, 3. 5 Leach v. Rogers, 28 Geo. 247. ^ Wright v. Haskell, 45 Me. 489. 7 1 Stark. Slander, 293. MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 625 But, in the absence of any specific agreement to that effect, there is no legal obligation binding a person who has retained another as a servant, to give that person any character at all on dismissal ; and no action will lie against him for refusing to do so.^ And the decisions on this subject fully establish the principle that representations of a servant's character, oral or written, are on the footing of privileged communica- tions ; and that wilful misrepresentation must appear on the master's part to render him liable ; not merely wrong and unfair statements made in good faith and without malicious intent.2 But a guaranty for the honesty of a servant is sometimes given for the master's protection ; just as an official will fur- nish his bondsmen, or as some companies guaranty the fidelity of clerks and trustees. In such cases, since the rights of a guaranty are carefully watched, the master must on his part exercise due caution. Thus, on a continuing guaranty for the honesty of a servant, if the master discovers that the servant has been guilty of dishonesty in the course of the service, and instead of dismissing the servant he chooses to continue him in his employ, without the knowledge and con- sent of the surety, express or implied, he cannot afterwards have recourse to the surety to make good any loss which may arise from the dishonesty of the servant during the subse- quent service.^ Second., as to the servant. Of the mutual liabilities of master and servant, some are to be discussed with more especial reference to the latter than the former. Thus the servant, once engaged by a valid contract to enter his em- ploj^er's service, cannot refuse or neglect to do so without becoming liable in damages ; though whether the master may care to pursue his remedy is another matter.'^ The same may be said of one who, without sufficient cause, leaves his employ- 1 Smith Mast. & Serv. 222 ; Carrol v. Bird, 3 Esp. 201. 2 Smitli, ib. 223-250, ami cases cited ; Fountain v. Boodle, 3 Q. B. 12 ; Hodg- son V. Scarlett, 1 B. & Aid. 240 : 2 Stark. Slander, 58. 3 Phillips V. Fo.xall, L. R. 7 Q. B. 6GG. As to the master's liabilities for the servant's injuries, see infra, eh. 4. 4 See Richards v. Hayward, 2 Man. & Gr. 574; Smith Mast. & Serv. 64. [667] * 625 MASTER AND SERVANT. ment before the legal termination of the period agreed upon.^ That the service is unpleasant or tlie labor severe would not alone justify his departure.^ * 626 * While performing service under his contract the servant is bound to regard the interests of his master. He cannot, it would appear, solicit his master's customers into his own business, so long as his engagement lasts, without rendering himself hable to action ; but it is held that he can do so when the service is at an end, and he sets up for him- self.^ He must account to his employer, like all other agents, for money or other goods received in the line of duty ; and except in certain cases, cannot set up the right of a third party in opposition to the employer's interests.* So is the servant liable for gross negligence in the care of his master's property intrusted to him ; though not for ordinary accidents,^ Servants are also liable for fraud and misfeasance, as in cases of simjDle bailment generally. Suits of this sort, strictly applicable to domestic servants, are ex- tremely rare ; but there are instances to be found in the old books. Thus it is said that if a man deliver a horse to his servant to go to market, or a bag of money to carry to Lon- don, which he neglects to do, the master may have an action of account or detinue against him.^ An employe or servant is liable in a suit brought by his master to indemnify the latter from the consequences of his negligence or misconduct.'^ And this, too, notwithstanding the concurrinsr nesrli2:ence of 1 Bird V. Randall, 3 Burr. 1345 ; Lees v. Whitcomb, 5 Bing. 34. 2 Angle V. Hanna, 22 111. 429. !* Nicliol V. Martyn, 2 Esp. 732. Yet we presume that this action would lie, if the servant had availed himself, to his master's injury and his own profit, of certain peculiar facilities derived under the contract of employment, though he waited till the engagement ended before making use of them. See Adams Express Co. v. Trego, 35 Md. 47. ■» See Story Agency, § 217, and n. ; Dixon v. Hamond, 2 B. & Aid. 310; Smith Mast. & Serv. 67, and cases cited ; Murray v. Mann, 2 Exch. 538 ; Chees- man v. PLxall, 6 Exch. 341. 5 Savage v. Walthew, 11 Mod. 135 ; Bac. Abr. tit. Master and Servant (M), (I) ; Smith Mast. & Serv. 65. ^ Bac. Abr. tit. Master and Servant (M). ■? Green v. New River Co., 4 T. R. 589; Pritchard v. Hitchcock, 6 Man. & Gr. 165 ; Smith Mast. & Serv. 66. But see Colburn r. Patmore, 1 Or., M. & R. 73. [ 668] MUTUAL OBLIGATIONS OF MASTER AND SERVANT. * 626 another servant not made a defendant with him.^ And a person employed to do work requiring skill or involving unusual hazard, and undertaking to do it for suitable com- pensation in a skilful or careful manner, is bound to so do it ; and he is responsible to his employer for injury occasioned the latter by the negligent manner in which he performed the work.2 The old writers say that the servant may justifv a battery in the necessary defence of his master ; and the master, as the * weight of argument goes, may do the same on * 627 his servant's behalf.^ A mere agent or servant is a competent witness for bis principal or master, from public convenience or necessity.* 1 Zulkee v. Wing, 20 Wis. 408. 'i Willard v. Pinard, 44 Vt. 34 ; Holmes v. Onion, 2 C. B. x. s. 790 ; Pixler v. Nichols, 8 Iowa, 100 ; English v. Wilson, 34 Ala. 201. But as to an infant ser- vant, see Meeker v. Hurd, 31 Vt. 639. 3 See 2 Kent Com. 261 ; 1 Bl. Cora. 429. * Wainwright v. Straw, 15 Vt. 215; Stringfellow v. Mariot, 1 Ala. 573; Doe V. Himelick, 4 Blackf. 494; 1 Greenl. Evid. §416; 1 Phill. Evid. 10th ed. 507 et seq. [669] * 628 MASTER AND SERVANT. *628 * CHAPTER III. BIGHTS AND LIABILITIES OF THE SERTANT AS TO THIRD PERSONS. As a general rule, servants are not liable personally on con- tracts entered into by tliem on behalf of their masters. Such a principle would be inconsistent with the very relation. But, like any other agent, a servant may make himself liable, pro- vided he contract on his own and not his master's behalf.^ Questions of this sort turn upon cu-cumstances ; as to whom, for instance, the credit was given. But if there be a wrong or omission of right on the serv^ant's part ; if, for instance, he transcends his powers, or acts without authority, like all other agents he becomes personally liable to the person with whom he deals in his master's name.^ For, in respect to such con- tract, he is no servant at all, but one who wilfully or inno- cently misrepresents himself as such. Instances of this principle occur in the every-day transac- tions of life. A broker who puts his OAvn name to a bill of exchange, without words to imply an agency, renders himself personally liable to a stranger.^ But the receipt of a servant is the receipt of his master, for money rightfully paid him in the course of business.^ And a sheriff's deputy is not liable to a judgment creditor for money collected by him under an execution in the creditor's favor.^ * 629 * The reason of the general rule of exemption is, that the principal or master, not the agent or servant, shall answer for the consequences of the latter's contract. The i Smith Mast. & Serv. 194 ; Story Agency, § 261 ; Owen v. Gooch, 2 Esp. 567 ; Thomson v. Davenport, 9 B. & C. 88. 2 Sniout V. Ilberry, 10 M. & "W. 1 ; Paterson v. Gandasequi, 15 East, 62 ; s. c. 2 Smith Lead. Cas. 358. 8 Leadbitter v. Farrow, 5 M. & S. 345 ; Jones i-. Littledale, 6 Ad. & El. 486. * Bamford v. Shuttleworth, 11 Ad. & El. 926. 5 Colvin V. Holbrook, 2 N. Y. 126. And see infra, p. 633, as to the doctrine of agency applicable to the servant's acts on his master's behalf. [ 670] RIGHTS AND LIABILITIES OF THE SERVANT. * 629 servant is directly responsible to his master, not then to strangers.^ But, as Lord Kenyon has obser^^ed, the principle does not apply to cases where there is corruption in the foundation of the contract, or it is bottomed in oppression or immorality .^ Where money is obtained by means of trespass or tort ; where a servant misappropriates a fund intrusted to him to be paid to others ; in these and similar cases it has been held that the servant is suable by third persons/^ If, for instance, a debtor sends by his own servant money which he owes his creditor, and the servant refuses to deliver it, and retains it, an ac- tion for the money may be maintained by the creditor against the servant. But it is otherwise if the debtor counter- manded his orders and received the money back from the servant.* In cases of tort, the rule is general that all persons con- cerned in the wrong are chargeable as principals. For a mis- feasance, therefore, or positive wrong, which affects the person or property of another, the servant cannot shield himself by the excuse that he acted merely in obedience to his master's orders, or for his master's benefit.^ It is said that in such a case he is sued, not as a deputy or servant, Imt as a wrong- doer.^ But a distinction is sometimes taken between misfeasance and nonfeasance. For mere negligence, or nonfeas- ance, the servant * is not liable to a stranger.' Thus * 630 where a banker is employed to collect a note, which he puts into the hands of another banker, tlirough whose 1 See Shearm. & Redf. Negligence, 128 ; Smith Mast. & Serv. 194 d seq. •>■ Miller v. Aris, 3 Esp. 232 ; Smith Mast. & Serv. 204. 3 Buller V. Harrison, Cowp. 565 ; Tiigman v. Hopkin, 4 Man. & Gr. 389 ; Howell V. Batt, 5 B. & Ad. 504. * Lewis V. Sawyer, 44 Me. 332. 5 Sands v. Child, 3 Lev. 352; Lane v. Cotton, 12 Mod. 488; Perkins v. Smith, 1 Wils. 328 ; Smith Mast. & Serv. 213, 214 ; Richardson v. Kimhall, 28 Me. 463 ; Bennett v. Ives, 30 Conn. 329 ; Johnson v. Barber, 5 Gilm. 425. See Hill V. Caverly, 7 N. H. 215. 6 See Lane r. Cotton, supra, per Lord Holt ; Hoffman v. Gordon, 15 Ohio St. 211. T See Lane v. Cotton, supra, per Lord Holt. [671] * 630 MASTER AND SERVANT. negligence the debt is lost, the creditor cannot sue the latter banker, though he was the one actually at fault.^ This same principle is applied in Massachusetts, to protect one servant from the injurious consequences of his own wrongful acts to a fellow-servant whenever such acts amount to nothing more than mere negligence or carelessness.^ So the servant of a carrier is not generally responsible for the loss of a parcel, to the owner, who should rather look to the master.^ And a servant who has driven a stray horse from the highway into his master's pasture, for the purpose of preventing it from straying on cultivated land, does not become liable for its conversion by turning it into the highway again by direction of his master.* Perhaps the true principle is to refer all such acts of the servant to the scope of his employment in the particular ser- vice of his master. We shall presently examine the doctrine of respondeat superior with reference to the master, under which head it is most commonly considered. For as a master is more likely to be pecuniarily responsible than his servant, so do those who would sue for injuries incline most willingly to make the master the defendant in their suits to recover damages.^ Government is not liable for the torts and frauds of its agents. Nor are public officers in general liable for the mis- deeds of their subordinates. Thus the Postmaster-General cannot be sued for the loss of letters in the post-office through the fault of his agents.^ Public policy furnishes, perhaps, the strongest reason for this doctrine. " As to an action lying against the party really offending," Lord Mansfield, however, observed, " there can be no doubt of it ; for whoever does an act by which another person receives an injury, is liable in an 1 Montgomery Bank v. Albany Bank, 7 N. Y. 459. 2 Albro V. Jaquith, 4 Gray, 99. And see Brown v. Lent, 20 Vt. 529. But see Phelps v. Wait, 30 N. Y. 78. 3 Williams v. Cranstoun, 2 Stark. 82. See Smith Mast. & Serv. 213 et seq. * Wilson V. McLaughlin, 107 Mass. 587. 5 See infra, p. 636. 6 Whitfield V, Lord Le Despencer, Cowp. 765. Nor should he be, since he is but the servant of government: the common employer of both superior and subordinate officials. See 4 Am. Law Rev. 1-17. [672] RIGHTS AND LIABILITIES OF THE SERVANT. * 630 action for the injury sustained." ^ And in several instances' have deputy-postmasters been sued in damages for their own torts .^ So are certain public officers, as sheriffs and others, acting in a purely ministerial capacity, frequently held to answer the consequences of their misconduct.^ For his unlawful acts knowingly committed in his master's service a servant is generally criminally answerable.* 1 Cowp. 765. And see Smith Mast. & Serv. 219. •i See 5 Burr. 2709, 2711, 2715. 3 Bac. ALr. tit. Slieriff. * State V. Walker, 16 Me. 241. 43 [673] * 631 MASTER AND SERVANT. *631 * CHAPTER IV. GENERAL RIGHTS AND LIABILITIES OF THE MASTER. In this chapter we shall discuss, /rs^, the general rights, second, the general liabilities, of the master as concerns third persons and his servant. First, as to his rights. The right of action to the master for personal injuries sustained by his servant is recognized in several instances.' This right grows out of the loss of ser- vice sustained by the master, and the same principle has been noticed with reference to parents. A service de facto is suffi- cient in all such cases .^ And it cannot be pleaded in defence that the acts complained of amounted to felony, and that the person committing them had not been prosecuted. But a master cannot maintain an action for injuries which cause the immediate death of his servant.^ Again, the action for seduction depends upon the existence of the relationship of master and servant ; and the loss of service gives the right of action. This action is usually brought by the parent, or one standing in the stead of a parent ; though the legal remedy is not perhaps confined to such persons.^ For enticing away or harboring one's servant the common law also gives the right of action against the offending party ; and where a person, after notice, continues to employ. another man's servant, that other, it is said, may maintain an action 1 See Duel v. Harding, Stra. 595 ; Hall v. Hollander, 4 B. & C. 660 ; Hodsoll v. Stallebrass, 11 Ad. & El. 801 ; Dixon v. Bell, 1 Stark. 287. 2 Smith Mast. & Serv. 83-85, and cases cited ; Bac. Abr. tit. Master and Servant (0). 3 Osborn v. Gillett, L. R. 8 Ex. 88. * See Parent and Child, supra ; Smith Mast. & Serv. 85 et seq. [ 674 ] EIGHTS AND LIABILITIES OF THE MASTER. * 631 against him, although at the time he hired him the second master did not know that he was hiring another man's ser- vant ; whence it follows that one who did not entice may yet be liable for harboring.^ The mere attempt to entice a servant away, * no damage following, does not en- * 632 title the master to maintain an action.^ Nor will the action lie after the master has recovered from the servant a stipulated penalty for leaving the service ; ^ nor for inducing a servant to leave at the expiration of the time for which he was hired, though he had no previous intention of leaving.^ A bindins" contract of service between the servant and his first master must, of course, be shown.^ Nor can the so- called master, where two, socially equal, occupy a relation of constructive service, rely with certainty upon the force of language to help him through his suit against a stranger. In a late English case, some doubts were expressed whether this remedy was to be extended beyond the case of menial ser- vants and laborers ; whether, in fact, the higher classes could claim its benefit at all in matters growing out of their mutual contracts.^ The general rule of the law is certainly to confine its remedies by action to the contracting parties, and to dam- ages directly and proximately consequent on the part of him who is sued ; the case of master and servant being excep- tional.' The right of action in such cases, founded upon the pure relation of service, is not greatly favored in this country, 1 Fawcet v. Beavres, 2 Lev. 63 ; Smith Mast. & Serv. 79 ; Blake v. Lanyon, 6 T. R. 221 ; Bird v. Ramlall, 3 Burr. 1352 ; Reg. v. Daniel, 6 Mod. 99, 182. And see Lumley v. Gye, 2 Ell. & Bl. 216, where the question is fully discussed. But laches may be imputable to the master. Deuiyer v. Souzer, 6 Wend. 436. ■^ Bird V. Randall, 3 Burr. 1352. 3 Ibid. * Nichol V. Martyn, 2 Esp. 734 ; Boston Glass Manufactory v. Binney, 4 Pick. 425. 5 See Smith Mast. & Serv. 79, and cases cited ; Sykes v. Dixon, 9 Ad. & El. 693 ; Campbell v. Cooper, 34 N. H. 49. 6 Lumley v. Gye, 2 Ell. & Bl. 216. This suit was with reference to the enticement of Wagner, the vocalist, from one theatre to another. The majority of the court (Coleridge, J., dissenting) thought the action would lie, even though the parties were not strictly master and servant. ^ See Coleridge, J., ib. And see Ashley v. Harrison, 1 Esp. 48. [675] * 632 MASTER AND SERVANT. though it is recognized.^ And the enticement of a servant in some States renders one hable to prosecution.^ The old rule was that a master deprived of the services of an apprentice or servant by the enticement or harboring of another, might sometimes waive the tort, and sue for the wages due from the second master : the maxim being, that the acquisition of the servant was the acquisition of * 633 the master ; but, as * Mr. Smith has observed, this rule applied more strictly during the existence of vil- lenage.^ Most of the cases to sustain this principle relate to apprentices in a seafaring way ; but it is thought to extend to servants in general.'* What a servant may acquire during the relation of service entirel}'' without the legitimate consideration of such service, does not belong to the master. This rule must be reasonably and beneficially applied according to circumstances. One may become bound by a contract for hiring, but, if not an absolute slave, he may generally gain something for himself otherwise if he choose. Thus, if one in the service of another, not employed to invent, make an invention, the patent-right is his, and not his master's.^ And the same rule applies to sal- vage money, the result of extraordinary service on his part.^ But the master shall have the advantage of his servant's con- tracts as to matters within the scope of the service.' It is held in New Hampshire, that if a servant, having his master's monej^ for a specific purpose, make use of it in jDcr- forming a service which he, without his master's privity, has undertaken for another, the master cannot, by afterwards adopting the servant's act as his own, charge that other party upon the contract made by him with the servant.^ 1 See Scidmore v. Smith, 13 Johns. 322 ; Peters v. Lord, 18 Conn. 337 ; Salter v. Howard, 43 Geo. 601 ; Burgess i'. Carpenter, 2 S. C. n. s. 7. 2 Bryan v. State, 44 Geo. 328. ^ See Smith Mast. & Serv. 80, 81. * Co. Litt. 117 a, n.; Smith, sHp;a, and cases cited; Lightly y. Clouston, 1 Taunt. 112. 5 Blcxam v. Elsee, 1 Car. & P. 558. But see Smith Mast. & Serv. 82. ^ Mason v. Tlie Blaireau, 2 Crancli, 240. " Damon v. Osborn, 1 Pick. 481. 8 Webb V. Cole, 20 N. H. 490. As to a master's right to reserve wages when served with garnishment or trustee process, see Davis v. Meredith, 48 Mis. 263. [ 676 ] EIGHTS AND LIABILITIES OF THE MASTER. * 633 Second. As to the master's liabilities. A master is liable for the contract of his servant, made in the course of his employment about his master's business.^ Supposing I have a servant, and that servant is in the habit of purchasing the family supplies, in the course of his usual emplo3'ment ; his contracts for such purchases will Ijind me. But is that simply because he is my servant ? If his usual employment l)e upon the farm, and I never gave him authority to make purchases, he cannot bind me by going to the store merely because he happens to be my servant. So I can authorize others to pur- chase family supplies : it may be m}' wife, or my child, or any friend. In all * such cases, then, I am bound, * 634 because, as is commonly said, I have constituted an- other my agent, not strictly because I have a servant. No power, therefore, can be inferred from the relation of master and servant, it is said, by which the latter can bind the for- mer.2 Mr. Smith states the princij^le more correctl}', \vhen he says that the power Avhich a servant possesses of binding his master by contracts is founded upon, or rather is the basis of, the general law of principal and agent.^ For in truth, it would seem that the relation of master and servant is the older at the law. However this may be, the rule is properly stated, at the present day, to be that the servant can only bind his master as his agent ; and this on the principle, com- mon to both branches of the law, that the act of the servant or agent is, in fact, the act of his master or principal : the maxim being. Qui facit ijer alium facit per se^ The well-known rules of agency need not, then, be set out here at any length. We only observe that the contract of a servant, in order to Ijind tlie master, must be Avithin the scope of his authority ; tliat this authority may be expressly con- ferred or may be implied from the master's conduct ; that subsequent ratification of the servant's acts is as binding as a previous autliority ; that the authority of a servant is coex- tensive with his usual employment ; and that the scope of his 1 Helyear v. Hawke, 5 Esp. 72. 2 Moore v. Tickle, 3 Dev. 244. i» Sniitli Mast. & Serv. 122. See Bac. Abr. tit. Master and Servant (K). * IL. And see Co. Litt. 52 a ; Story Agency, §!^ 7, 8. [677] * 634 MASTER AND SERVANT, authority is to be measured by the extent of his employment.^ All these principles the reader will expect to find much more fully illustrated in any treatise upon agency than in one which professes to take up simply the law of the domestic relations. There may be servants for a variety of purposes ; there may be agents, too, for a variety of purposes ; and between * 635 servant and agent is as yet * no strict line of legal demarcation. In general, a master is not considered liable on the contract of his servant, unless the servant, at the time he entered into it, assumed to act as his agent.^ But this principle is not artificially applied, the question of actual intent prevailing.^ Where a servant is employed to transact business, and has no particular orders with reference to the manner in which that business is to be transacted, he is considered as invested with all the authority necessary for transacting the business intrusted to him and Avhich is usually intrusted to agents employed in similar matters. In every case, such authority embraces the appropriate means to accomplish the desired end.^ Thus, a servant sent, without money, to buy goods, has implied authority to pledge his master's credit.^ And in numerous instances the master has been considered bound by his servant's warranty, that being usual in effecting certain sales ; though not where the warranty is subsequent to the sale and not part of the same transaction ; ^ for the rule is general that acts and admissions by the servant out of the course of his employment will not bind the master.'' 1 See Story Agency, §§ 74, 75 ; ib. § 239 et seq. ; Bird v. Brown, 4 Exch. 798 ; Smith Mast. & Serv. 123-12G ; Co. Litt. 207 a ; Bac. Abr. tit. Author- ity (B) ; 2 Kent Com. 612 et seq. '•i Wilson V. Tumman, 6 M. & G. 236 ; 4 Inst. 317 ; Walker v. Hunter, 2 C. & B. 834. 3 See Trueman v. Loder, 11 Ad. & El. 594, 595; Smith Mast. & Serv. 132. * Story Agency, §§ 60, 85 ; Smith Mast. & Serv. 128 ; Cox v. Midland Coun- ties R. R. Co., 3 Exch. 278 ; Howard v. Baillie, 2 H. Bl. 618. 5 Tobin V. Crawford, 9 M. & W. 718. And see Weisger v. Graham, 3 Bibb, 313 . •^ See Murray v. Mann, 2 Exch. 538 j Alexander v. Gibson, 2 Campb. 555 ; Helyear v. Hawke, 5 Esp. 72 ; Woodin v. Burt'ord, 2 Cr. & M. 391 ; Saunderson V. Bell, 2 Cr. & M. 304 ; and otiier cases cited in Smith Mast. & Serv. 129, 130. ^ Fairlie v. Hastings, 10 Ves. 128; Story Agency, § 136; Garth v. Howard, 8 Bing. 451. [ 678] EIGHTS AND LIABILITIES OF THE MASTER. * 635 There is an important legal distinction between general agents and special agents ; hence comes the rule that wher- ever a master has held out his servant as his general agent, whether in all kinds of business, or in transacting business of a particular kind, the master will be bound by the servant's act, if within the scope of his usual employment, not- . withstanding * the servant has acted contrary to his * 636 master's orders.^ This is a principle of frequent appli- cation.2 g^^^ where a servant is employed by his master to act for him in a single transaction, he must be regarded as the special agent of his master ; and in such case it is incumbent upon every one dealing with him, who wishes to charge his master upon his contracts, to inquire into the extent of his authority ; as, should he exceed it, his master will not be bound. ^ Since the nature of the usual employment of a servant is the measure of his implied authority, it follows that this authority can neither be limited by the private instructions of the master nor controlled by any secret agreement between him and hi^ servants " If this could be done," says a recent writer, " in what a perilous predicament would the world stand in respect of their dealings with persons who may have secret communications with their principal. There would be an end of all dealing but with the master." * But if a third party knows of private agreements or instructions, he cannot, of course, charge the master upon any inconsistent contract; for it enters as an element into his own dealings with tliat servant.^ Hitherto we have spoken of the master's liability on his servant's contracts ; now we come to his civil liability for the servant's torts. This subject receives at the present day •more attention in the courts than any other topic of the so- 1 Smitli Mast. & Serv. 132-135 ; Story Agency, §§ 120, 127. 2 See Nickson v. Brohan, 10 Mod. 109 ; Kimetl i-. Sanipayo, 1 Car. & P. 255 ; Jordan i^. Norton, 4 M. & W. 155. 3 Smith Mast. & Serv. 137 ; Ward v. Evans, 2 Ld. Raym. 928 ; Waters v. Brogden, 1 Y. & J. 457. 4 Smith Mast. & Serv. 133; 10 Mod. 110. s Howard v. Braithwaite, 1 Ves. & B. 209. [679] * 636 MASTER AND SERVANT. called law of master and servant ; perhaps more than all the other topics together. Here we find not only the maxim qui facit per aliuni facit per se cited (so well applied to the law of agency), but that other, more strictly appropriate to the present relation, respondeat siqyerior: The universal * 637 rule is that whether * the act of the servant be of omission or commission, whether his negligence, fraud, deceit, or perhaps even wilful misconduct, occasion the injury, so long as it be done in the course and scope of his employ- ment, his master is responsible in damages to third persons.^ And it makes no difference that the master did not give special orders ; that he did not authorize, or even know, of the servant's act or neglect ; for even though he disapproved or forbade it, so long as the act was done in the course of the servant's employment, he is none the less liable.^ So far is this doctrine carried that a master is even held liable for an injury occasioned by what might to many minds appear the wanton and violent conduct of his servant in the performance of an act within the scope of his employment. Thus where the conductor of an omnibus, in removing there- from a passenger whom he deemed to be intoxicated, forcibly dragged him out and threw him upon the ground, so that he was seriously injured, it was held that the proprietor was liable.^ And for a servant's assault in the performance of the service, the master, though in no manner consenting or aiding, has been held liable.* We should say, however, that a projDcr analj'sis of the cases where a master is held responsible for his servant's torts, would show either that the servant was negligent within the scope of his employ- ment ; or else that he displayed a wanton or reckless pur- pose to accomplish his master's employment in a wrongful manner.'^ Whether an act amounts to negligence, misfeasance, and the like, is to be determined in each case by its own circum- 1 Story Agency, § 452 ; Smith Mast. & Serv. 151, 152 ; Shearm. & Redf. Neg- ligence, y a bailiff, steward, or super- intendent. How far this principle might be extended, it is useless to speculate 1* Smith Mast. & Serv. 157. [681] * 638 MASTER A^^) servant. man or driver, injudiciouslr or recklessly, or even intentionallj', but not wantonly, turns or races his hoi-ses so as to run down another's carriage.^ Unless the rule of liability were carried to such an extent, we should find mastei^s constantly escap- ing the consequences of their servants' behavior. But a master is not responsible for any act or omission of his servants which is not connected with the business in which they serve him, and does not happen in the course or the scope of their employment.- Beyond the scope of his authority, the servant is as much a stranger as any other pei-son. Thus, where a servant is employed only to haiTOW one field and watch a fire in another, and he undertakes besides to biu-n a pile of rubbish. ^ So, where one is author- ized to distrain cattle trespassing on his master's land, drives the horses of a neighbor on to the land and then distrains them.^ We should hardly expect to see the rule of respondeat superior apphed where a wrong is done wholly for one's own purpose and in his own concerns, disconnected from the em- ployment of the master in question.^ * 639 * Some cases might lead to the belief that a master is liable for the careless driving of his servant, because he intrusts him with the carriage.^ This is not correct. The true principle is that, while a master is liable where the ser- vant is in the line of his emplovment at the time of commit- tin;«. Lord Cranworth and tlic others concurred in tiiis opinion, and their remarks are to tlie same purport. 2 See remarks of Lord Colonsay in Wilson v. Merry, supra. 3 Sniitli Mast. & Serv. 143; Story Agency, § 452; Rex v. Huggins, 2 Ld. Raym. 1574 ; Sloan v. State, 8 Ind. 312. < Reg. V. Bleasdale, 2 Car. & K. 166. [691] * 647 MASTER AND SERVANT. country is sometimes understood to be the same.^ Yet, penal actions in general have more the character of * 647 civil suits than of criminal proceedings ; * and, under the revenue laws, penalties are frequently imposed upon the master.^ So again are masters indicted for public nuisances committed by their servants,^ according to the English rule. Some of the proceedings authorized by stat- ute against corporations in this country for damages caused by the negligence of their servants will be found to contain a like principle. The foregoing brief statement of doctrines concerning the law of master and servant may suffice for the present treatise in its limited space and scope. To enter upon the law further, or to attempt an analysis of the numerous and conflicting cases which constantly arise at the present day under what might be called the analogies of master and servant, would be at present impossible. We trust in iime to see the topic of master and servant confined to its legitimate and proper limits^ as one of the domestic relations, and some new and more comprehensive title applied to such decisions as clearly affect mankind in the external concerns of life. 1 Deerfield v. Delano, 1 Pick. 465 ; Goodhue v. Dix, 2 Gray, 181. - See Smith Mast. & Serv. 14-5-147 ; Attorney-General v. Siddon, 1 Cr. & J. - 220; Atcheson v. Everitt, Cowp. 391. 3 1 Bl. Com. 431, 432 ; Turberville v. Stampe, 1 Ld. Eaym. 264. [692] INDEX. INDEX. A. ABANDONMENT, ^agb gives wife rights a.s feme sole 244, 295 ACCOUNTS, of guardians in chancery practice 494 distinction between final and intermediate accounts .... 495 practice in the United States ■^^o items allowed the guardian '*"^ compensation of guardians 500 & n. ACTIONS, — Husband and Wife. by husband for enticement ^' by wife a.s feme sole "•* by husband and wife against each other 63 on the wife's debts dum sola '2 with reference to wife's torts 104> 107-110 with reference to wife's real estate 143, 144, 147, 165 wife's remedy for waste 1*^ after wife's death for choses not reduced 163 as to separate estate l''^ rights under married women's acts 215, 238 where wife is abandoned by husband 295 Parent and Child. parent for child's services ^"^^ per 2?band controls 231 conveyances of separate lands 235 husband's rights as survivor 236 rule of certain States 236 INDEX. . 709 MARRIED WOMEN'S ACTS — Continued. wife's purchase on credit 237 right of action, and liabilities to suit 238 confused state of law at present time 238 as to separate earnings 243 wife's power to trade 247-249 relative to wills 256-258 ratification of infant wife's conveyance . 589 (See Sepauate Estate.) MASTER, obligations as to discipline G16 duty to furnish necessaries G17 whether he must find work G17 duty to receive into sei'vlce the person engaged 618 must indemnify servant 618 remedies against him for breach of contract 618 rules for payment of wages 620 apportionment and quantum meruit 621 representations as to servant's character and guaranty . . . 625 General rights of Master. right of action for injuries to servant 630 seduction, enticing away, and harboring 631 right to servant's acquisitions 633 General liabilities of Master. bound by servant's acts as agent 633 application of rule to contracts 634 agents, general and special 635 liability for servant's torts 636 not for acts wapton and beyond scope of employment .... 638 rule as to real estate 641 not liable to servant for tort of fellow-servant 642 but liable for his own negligence 643 who are servants and fellow-servants 644 not criminally responsible for servant's misconduct .... 646 (See Servant.) MASTER AND SERVANT, nature and origin of the relation 7, 599 limitations of the subject 600, 647 rule of classification 601 (>See Apprentice ; Master; Servant; Workmen.) MORTGAGE, of wife's lands by herself 154 she is surety 155, 176 (See Real P]st.vte.) of wife's separate lands by husband 234 by guardian of ward's lands 473 of infants cannot be avoided without the sale . . . 560, 584 710 INDEX. N. NECESSARIES, of the wife 77 {See Contracts.) of children 327, 456, 647 •whether child may bind parent 327 whether child must supply parent 366 ■whether guardian must supply ward 4.56 leading principles as to infants 547 what are classed as necessaries for an infant 548 question one of mixed law and fact 550, 555 education, house-repairs, legal expenses 550 trading contracts not included 552 limitation of liability for necessaries 553 money advanced for necessaries . 555 infant's bond and note for necessaries 556 o/' a seryan/, and master''s liability 617 NEGLIGENCE. (See Torts.) P. PARAPHERNALIA, nature and incidents 171-175 reimbursement from real estate : . . . . 175 PARENT, consent to child's marriage 46 Duties in general. duty of protection • 315 limit to parent's right of correction and discipline 333 indictment for cruelty, exposure, or neglect 333 duty of education 316 (5ee Education.) duty of maintenance 318 (See Maintenance.) duty to provide profession or trade 331 Rights in general. general authority of the parent 332 right of custody 333 {See Custody.) right to child's labor and services 344 {See Earnings.) right to clothing and other effects 349 but not to child's general property 349 how far legislature may interfere with parents' rights and duties 350 rights as to child's injuries 351 (See Torts.) INDEX. 711 PARENT— Continued. liabilities as to child's torts 361 (See Torts.) transactions between parent and child 3/ 4 rule of advancements ; expectant estates 376 legacies to children ; descent and distribution 378 PARENT AND CHILD, nature of the relation 21, 303 (.See Parent; Children; Illegitimate Children; Legitimacy.) PERSONAL PROPERTY, of wife goes to her husband at common-law HI c/iose.s i« /)0.ssess«o?« go at once and absolutely . . . . 111,11- so chattels bequeathed to wife without restriction 113 so earnings of the wife ^1* (See Earnings.) rule as to clioses in action ■'■1* (See Choses in Action.) wife's trust property does not vest 135 (See Chattels Real; Separate Estate.) PIN-MONEY, its nature and incidents -^'^ rule as to arrears -^^ house-keeping allowances -"^- PORTIONS (see Antenuptial Settlements.) 273 POSTNUPTIAL SETTLEMENTS, are usually without consideration -'6 viewed as regards creditors -' ' statute of 13 Eliz. aflfects them in England 277 bankrupt acts -'^ statute of 13 Eliz. as applied in this country 279 statute of 27 Eliz. also affects tlie settlement 280 creditors and purchasers thus protected 280 English rule a strict one 280 not so applied in this country 281 valuable consideration sometimes interposed .... 282 & n. settlements and gifts viewed as between husband and wife . . 283 if complete, they are effectual in equity 284 but gift should he clear and irrevocable 285 transfer sustained by valuable consideration 285 wife may make gift to husband 286 trustees desirable, but not essential 286 incidents of gifts and settlements 286 effect of change of domicile -"' lands how transferred ^"' POWER, of appointment in married women -23 wife may execute by will 261 712 INDEX. PROCHEIN AMI, in suits by infants 592 R. RATIFICATION, of voidable contracts by infants 575 Lord Tenterden's act construed 575 other statutes 575 American doctrine of ratification 577 conflicting decisions 579 whether acknowledgment of debt suffices 580 summary of American doctrine 582 express repudiation and disaffirmance 582 ratification as to real estate 584 whether entry upon the land is necessary 586 rule as to an infant's purchases 588 miscellaneous points in ratification 589 infant must place other party in statu quo 591 REAL ESTATE, of wife, usufruct in husband 142 wife's ownership remains 143 actions for waste 143, 149 husband has arrears of rent and emblements 144 life-interest attachable 144 alienage, attainder, and felony 145 husband's power to bind and alienate 146 effect of his lease and mortgage 147, 149 husband may dissent from purchase, &c 150 right to proceeds after conversion 150 general incidents of husband's title 151 wife's agreement to convey 152 wife's power to alienate and encumber 152 may join in conveyance 152 wife's power to mortgage 154 wife not bound by covenants 155 wife's life-estate 156 as to wife's lands held in joint tenancy 157 husband's claim for improvements 165 rights of wife, mortgagee for her husband 155,176 her e(juity of redemption 176-178 her riglit of exoneration 178 rights affected by legislation 215 rule as to the wife's separate lands 234 not in general devisable 258 {See Wills.) INDEX. 713 REAL ESTATE — Continued. conveyancL'S between husband and wife . . . effect of conveyance to husband and wife . . . {See Infants; Mastkk; Ward.) REDUCTION, of wife's f/ioses t'( «cl 287 288 116 116 117 117 119 119 120 121 122 122 123 124 124 126 -128 122 128 128 S. SAVINGS, of wife from house-keeping allowance 242 SEDUCTION, of wife . . . . ■ 1*^9 of child 356 of servant ^^^ {See Illegitimate Childken.) SEPARATE ESTATE, of married women, its nature and creation 187 Enr/lish Doctrine. its origin in chancery no trustee need be named separate estate not presumed words sufficient to create it fund and i)roduce of a fund ambulatory operation; it exists only in marriage state wife's right to renounce marital obligations of liusb;md continue .... rights of purchasers without notice restraint upon anticipation courts of law sometimes uphold separate estate . . 188 1S8 IS'J ]s;» \\)3 194 195 i;;6 197 197 199 714 INDEX. SEPARATE ESTATE — Continued. American Doctrine. how far sustained by our courts of equity 200 rule of trustee and presumptions 202 what words create it 202 created by parol in some States 203 whether separate property can be acquired by contract . . . 204 liability for wife's debts 205 husband's obligations continue 206 effect of husband's or wife's death 207 savings of interest or income 207 husband's suits with reference to separate estate 208 comity of nations applied 208 later equity rules 218 recent legislation 208 (See Married Women's Acts.) Wife''s Dominion. English ru]e is to give TuW Jus disjjonendi 219 technical difficulties in real estate 220 wife may bind separate estate by contract 220 but Avife's debts are debts sub modo 221 wife's power of appointment 223 rights barred by breach of trust 224 general rule as to wife's power to bind 224 she may encumber and contract 225 she may bestow upon her husband, unless specially restrained . 226 arrears of income 227 American rule favors dominion 227 permits wife to bestow upon husband 228 and to bind estate by contracts •. 228 exceptions to doctrine 229 affected by legislation 229 {See Married Women's Acts.) wife may bestow by will 253 (/See Earnings; Pin-Money; Trade; Wills.) SEPARATION, husband's liability for wife's necessaries 89 where separation is voluntary 94 as affecting wife's torts 104, 109 husband's right to wife's property . . . . Ill, 1*35 husband's life-interest 144 right of administration 159 general doctrine of separation 290 origin of separation deeds 292 enforceable as covenants 292 rule not favored in this country 294 wife's rights when abandoned by husband 295 maintenance of children 322 INDEX. 715 SERVANT, relation arises upon the hiring 60() the contract of hiring 607 distinction between menial and other servants 608 contract affected by statute of frauds 609 restraint of trade 609 contracts for life 610 service and agency 611 how contract is terminated 612 servant does not occupy premises as tenant 615 Liabilities as to Master. bound to perform engagement 625 accountability to master 626 battery in defence of master 627 he may be a witness 627 Liabilities as to Third Persons. not personally liable on his contract 628 otherwise in case of fraud and corruption 629 liability for his torts . . . • 629 misfeasance and nonfeasance 629 government and its servants 630 (See Master.) SETTLEMENTS, of infants 528, 568 (See Antenuptial and Postnuptial Settlements.) SPENDTHRIFTS. (See Guardianship.) STEP-CHILDREN, rights and liabilities 321, 378 T. TENANT IN COMMON, where wife is tenant in personalty 112 TERMINATION, of giiardiuriship in general 423 its natural expiration as to minors 423 as to insane persons and spendthrifts 424 death of the ward 424 marria<:e of the ward 425 death of the guardian 426 resignation of the guardian 426 removal and supersedure of guardian 429 marriage of female guardian 433 other instances where a new guardian may be appointed . . 433 of sa-vanVs contract 612 716 INDEX. TORTS, of wife ajjeded by coverture 101 husband stands in the wife's stead 102 but not unless marriage in fact appears 102 when presumption of coercion arises 103 husband's liability limited 103 form of suit where wife is offender 104 rule where wife's contract is basis of the fraud 104 fraudulent representations as agent 105 devaniavit of an executrix 105 liability for wife's breach of injunction 106 hu^band and wife sue together for injuries to the wife . . . 106 form of suit and rule of compensation 107 husband's special suit per quod 108 case of instantaneous death 110 where both husband and wife are injured 110 rights affected by married women's acts 215 oj" children considered 351 parent may sue for loss of child's services 351 limitations of the rule 351, 573 statutes affecting the right of action 352 in(;idents of such suits . . . '. 353 assault and battery of child 353 enticement and abduction 354 cases where right of action is not sustained 355 seduction of child 356 amount of damages recoverable 359 liabilitv of parent for torts of his infant child 361 child himself is answerable 362 but not necessarily the parent 362 committed b)/ in/ants 563 rule of infant's liability 563 where parent expressly commands 564 not responsible for torts arising from contracts 564 e(piitable principle of later cases 565 embezzlement and deceit 567 (;hancery, civil law, and statutory rules 569 sufftred by infants 570 general right to sue 570 except where a trespasser 571 negligence of a child's parent 571 joint wrong-doers 573 arbitration and compromise of torts 573 miscellaneous points 573 torts and frauds of servant 629 of government agents 630 of master for servant's torts 636-644 {See also Gl'aruian.siiii>; Master and Sekvant.) INDEX. 717 TRADE, loife's capacity recognized in England 244 but under restrictions -^^ doctrine asserted in this country lately 245 conclusion from American equity cases 247 right enlarged by married women's acts 247 doctrine of jNIassachusetts and New York 248 rule in other States -^^ wife's trade in partnership with husband 249 civil-law doctrine 250 infanCs right to trade '^^^ his trading contracts not necessaries 552 w. WAGES. (5ee Earnings.) AVARD, judicial control of ward's property 440,4/6 property followed whenever wrongfully disposed of ... . 470 as to u-ard's real estate "166, 471 constitutional questions concerning sales 446 extent of guardian's control 471, 472 sales not allowed in chancery 480 purchases on ward's behalf 481 legislative authority may intervene 482 American statutes permit sales 482 disposition of proceeds 48b essentials of purchaser's title 484 immaterial irregularities ; those which make sale voidable ; those Avhich make sale void 484 sales of land by non-residents 486 New York chancery rule ; American efjuity rule 487 general rightu of the ward 504 remedies against his guardian 505 action of account after guardianship 606 right to recover embezzled property 507 ri'dit to have fraudulent transactions set aside 507 mav repudiate or confirm unauthorized acts at his election . . 509 election as to guardian's bargains with ward's funds .... 510 transactions between guardian and ward 512 gilts to guardian treated with suspicion 512 such questions determined on settlement of accounts .... 514 ward's right to reopen accounts 514 transactions after guardianship is ended 515 marriage of ward in chancery 516 {See GuAKDiAN.) 718 INDEX. WIFE, bound to live with Imsband 54 how far bound to follow him . . 54, 56 rights and disabilities at common law 51, 61 her debts dum sola . . . . 62, 69 her frauds and injuries 63, 101 her right to sue and be sued asfeme sole 63 {See Contracts ; Debts.) her debts and contracts during marriage 69 liable for her own crimes 101 presumption of coercion in some cases 102 rights and liabilities as to torts 102 {See Torts.) disability as to her personal property Ill {See Personal Propkrty.) rights and disabilities upon husband's death 168 {See Death.) dower and homestead riglits 182 right to make will 251 {See Wills.) right to act as guardian 136, 418 {See Divorce ; Husband ; Separate Estate ; Settlements.) WIFE^S EQUITY, general doctrine 128, 213 rule applied liberally to her c/iose.s ^■^^ rtdi'o?i 128 how far chancery interferes 129 rule applies to husband's representatives 130 distinction between absolute and life interest 130 equity does not extend to reversionary fund 131 preserved usually from capital of fund 132 proportion allowed the wife 132 right lost by death and misconduct 133 husband may become a purchaser 133 wife precluded by her waiver or her fraud 134 circumstances in case of separation 135 WILLS, wife's general incapacity 251 married women incapable at common law 251 exceptions by hus' and's consent 251 exception as to trust property 253 wife may dispose of separate estate 253 right where husband is dead at the law 255 as to property acquired after husband's death 255 recent English statutes on the subject 255 change eifected by American legislation ........ 256 statutes on the subject compared 256 & n., 258 civil-law capacity 257 confirmation and republication 259 INDEX. 719 WILLS — Continued. devises from wife to husband 259 how far marital influence may invalidate 259 wife's donatio cansa mortis 260 mutual wills of husband and wife 260 wife may dispose under a power 261 will of person under guardianship 505 incapacity of infants 442, 624: WITNESSES. (See Evidence.) WORKMEN, English legislation 602 councils or courts of conciliation 603 American legislation "0+ trade associations "04 Cambridge: Press of John Wilson and Son. I \^ 5 ^'^ iiiiinii AA 000 831 034 I mil mi nil 4