PATTEE'S Illustrative Cases ' Domestic Relations. Otarnf U Slam ^t\\m\ Etbrarg Cornell University Library KF 504.P14 Illustrative cases In domestic relations 3 1924 018 807 192 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018807192 PATTEE 8I:BIE8 ILLUSTRATIVE CASES IN DOMESTIC RELATIONS WITH ANALYSIS AND CITATIONS BY JAMES j^iaE,LL.M., FBOFE330B OF LAW IN THE COLLSaS OS LAW, USriVBBSITT OV If INKSSOTA PHILADELPHIA T. & J. W. JOHNSON & CO. 1893 8^/r6^ Entered according to Act of Congress, in the year 1893, by JAMES PAIGE, LL. M., In the Office of the Librarian of Congress, at Washington. COLLINS PRINTING HOUSE, 705 JAYNE SIBEEI, PREFACE. The collection of " Illustrative GaseS" presented to students of law in this volume has been prepared by James Paige, LL.M., lecturer upon the subject of Domestic Eolations, in the College of Law of the University of Minnesota. It constitutes one of a series of " Illustrative Cases" which I am preparing chiefly for the use of students in our own school, but which bear upon principles so general in their application throughout the States of our Union that it is hoped the work may be found helpful to others seeking a clear •understanding of the fundamental principles of this important branch of jurisprudence. I have supervised the work only so far as to see that its form, method of state- ment, and general ' arrangement are in harmony with other works in the series, and hence conformable to our method of instruction. Its merits should be credited to Mr. Paige. It is the object of this entire series to make a clear and accurate statement of the principles of that part of jurispru- dence with which the several volumes respectively deal, and to accompany each statement with a case illustrating its application. Such a combination of principle and "Illustra- tive Case" aids both the understanding and the memory. In addition to this advantage, the numerous cases and authori- (iii) IV PREFACE. ties cited which the student is expected to read furnishes an opportunity for him to examine the principle in its appli- cation to facts and circumstances greatly varying in their nature, interest, and importance. It should also be stated that this volume does not constitute our course upon Domestic Relations, but is to be used in connection with lectures upon that subject. Special attention is called to the analysis at the beginning of the volume, which we have found in our own instruction to be very serviceable. W. S. PATTEE, LL.D., Dean of College of Lais. 0SIVEBSITT OP Minnesota, MiNNEiJOLis, Minnesota, VI ILLUSTRATIVE CASES teu i>,o 5 B a U S ^ O U B • "O ■ ■H i v; . *^ :3 o te o o S i-^ (n' « ^ in o •J o o ' o c > ^ a u si woaw WW jg won ■ " tu ta So ^ -o « ts-o a g' S'g 9 « ■£■£ ".ss s «t2 " " t; S'^g S" o a « s .So 5 tS-S iH M «* -^ iHNeo ^ -;c4m -^ ^ validity of the marriage. There is no tribunal existing here or else- where to compel the celebration of a marriage contract. The ecclesiastical Courts of England formerly could compel a cele- bration of marriage, in facie ecclesice, when a contract had been made between persons competent to contract. But this power is, and has been for nearly a century, abolished in Great Britain by statute, and has never been claimed as existing in nor exer- cised by any tribunal in this State. And indeed the exercise of such a power is wholly inconsistent with the nature of the marriage contract, which must take effect from pure voluntary consent of the parties, declared before the proper officer at the time it is solemnized. To compel parties to take the marriage vow when their consent is given by coercion, and is not volun- tary, is to require them to be guilty of palpable prevarication and falsehood, equally at war and inconsistent with the dictates of law, morality, and religion. It is sufficient that for the IN DOMESTIC RELATIONS. 39 breach of this engagement the law allows the party aggrieved to recover a compensation in damages against the one who wantonly, and without any justifiable cause, disregards an en- gagement deliberately made, and which should have been duly and deliberately considered before entered into. Considering marriage as a civil contract, it would seem to be subject to the jurisdiction of the ordinary Courts of law and equity-, in the same manner as other contracts, with only such differences as to the nature and forms of the remedy, and the time and place proper for the exercise of that jurisdiction, as would arise from the nature and design of the contract. In England, where cognizance of matrimonial causes is given to spiritual Courts, we have noticed that the performance of a contract of marriage could formerly be enforced in the spiritual Court; yet the Courts of common law had also a jurisdiction to give damages for the breach of such contract, and by com- mencing an action at common law the remedy in the spiritual Court was actually released. Courts of law have the power of deciding directly upon the fact or legality of a marriage when it comes collaterally in issue. They have disregarded or con- sidered as void a marriage, although evidenced by a record from a justice of the peace, or a minister of the gospel. In the case of Middleborough v. Rochester, 12 Mass. 363, evidence was given to the jury that a man who had been married by a minister of the gospel, when the intention had been published, was a non compos mentis, and a verdict was found that the mar- riage was not valid ; and in the case of Mountholly v. Andover, 11 Vt. R. 226, it was proved that a marriage ceremony was had before a justice of the peace without the consent of the parties, but by the constraint and coercion of others, and the marriage was found to be invalid. If a marriage ceremony can thus be impeached, collaterally there is a much stronger reason why there should be some competent tribunal to inquire into and pronounce a decree of nullity on a marriage ceremony per- formed without consent of the parties, and procured either by force or fraud. The jurisdiction over all matrimonial questions and causes originally, I apprehend, appertained to the Courts of law and equity ; but for reasons which do not now exist the jurisdiction was either given to or assumed by the ecclesiastical 40 ILLUSTRATIVE CASES Courts. We have no such Courts here. The Supreme Court was authorized to grant bills of divorce only for certain causes, and had no power at the time this bill was filed to pronounce a sentence of nullity on a marriage void for want of consent. The necessity of such a jurisdiction is apparent, and we appre- hend that it falls within the ordinary equity jurisdiction of Courts of Chancery to relieve against contracts obtained by fraud, or where one or both of the parties were deceived. This question of jurisdiction has been examined in the State of New York, and the results to which the Courts of that State have arrived are perfectly satisfactory to us. In the case of Ayraar v. RofF, 3 Johns. Cli. R. 49, where an infant of twelve years of age was married, being ignorant of the duties which a marriage, if legal, would impose, the Chancellor ordered her to be placed under the protection of the Court as a ward, and forbade the husband all intercourse or correspondence with her. In the case of Wightman v. Wightman, 4 Johns. Ch. E,. 343, the learned Chancellor examined the question of jurisdiction very fully, and came to the conclusion that it was in the power and was the duty of the Court to declare void the marriage of a lunatic, and accordingly did so decree and declare the parties free from the obligations of marriage with each other. In the case of Ferlar v. Gojun, 1 Hopk. Ch. R. 478, Chancellor San- ford asserts the jurisdiction of a Court of equity over contracts of marriage when obtained by fraud, and says very emphati- cally that "the jurisdiction of equity in cases of fraudulent contracts seems sufficiently comprehensive to include the con- tract of marriage. And although it may be a new application of the powers of the Court, I do not perceive that it is an ex- tension of its jurisdiction." Indeed, it would be very singular if the Court may relieve against all other contracts obtained by fraud or imposition, and could not relieve from this contract when obtained by such means, when the consent was not "-iven understandingly and the marriage was not consummated. We are entirely satisfied of the power and jurisdiction of the Court of Chancery to pronounce a sentence of nullity on a marriage illegally had, and to give relief in this and all similar cases when the evidence requires that it should be done. In the case before us it is unnecessary and inexpedient to IN DOMESTIC RELATIONS. 41 recapitulate the testimony, or to state all the facts to which testimony has been given. In relation to a transaction which was calculated to call up exasperated feelings, which has ap- parently taxed ingenuity and genius to criminate and recrimi- nate, where a deep sense of injury is evidently felt and ex- pressed by the parties to this controversy, and where this state of feeling has extended, as it was to be expected, to all the im- mediate friends of the parties, who, from their situation, were necessarily compelled to become witnesses and to testify in the case, it could answer no good purpose for the Court to repeat all the statements which they have made in their depositions, to compare them, one with another, and declare what parts of the testimony are to be received or rejected. It is sufficient to say that we have examined all the testimony critically, and to state what facts we consider as proved, so far as they are to have any effect on the decision which we are about to make, trusting and believing that all the witnesses have intended to give a true and faithful relation of every part of this case which came under their personal observation. It appears that the oratrix arrived at the age of eighteen on the 12th of August, 1832 ; that a mutual affection had for some time existed between her and Mr. Clark, who joined with her in bringing the bill, and that they had been mutually engaged and betrothed to each other. On or about the 22d of August she made a visit to Mrs. Bradley, at Brattleboro', who had been her intimate friend and acquaintance, and an adopted daughter of her mother. She remained at Brattleboro' and in its vicin- ity until the 15th of October following, and during this period she became acquainted with the defendant. Field, who knew of her engagement to Clark. During all this time she corre- sponded with Clark, and on the 6th of October wrote him an affectionate letter, not betraying any change of feeling or affec- tion. It is, however, apparent that her attachment to Clark was greatly weakened, if not effaced, before her return to Windsor, and that she was apparently -pleased with the society of Mr. Field, and not reluctant to receive his attentions. How far it was consistent with the rules of propriety and morality, for the defendant, knowing of her engagement, to address her, or for her to receive his addresses', does not belong to this Court 42 . ILLUSTRATIVE CASES to decide. In law he was at liberty to marry her, and she to marry him, but answerable for the breach of any former en- gagement. It appears that rumors had reached the ear of her mother, at Windsor, who required her immediate return. On Sunday evening, the 14th of October, the night previous to her return, she had an interview with the defendant, Field, at the house of Mr. Bradley. The account given of this interview by the oratrix in her bill, and by the defendant in his answer, are different, toto ccelo. Probably during this interview a con- tract of marriage between them was signed by the defendant ; he admits in his answer that the oratrix had in her possession a paper writing signed by him purporting to be a contract or acknowledgment of marriage between them, and says it was executed on the 14th day of October, when it bears date; and, in his answer to a bill filed in the Circuit Court of the United States, in the district of Massachusetts, he saj's that he wrote some sort of contract, agreement, or acknowledgment of mar- riage, dated the 14th of October, to which he affixed his own sign-manual, and put it into her hands, but he believes she did not in fact sign it. This, it is to be noticed, bears date the same day when the interview was had which I have mentioned. On Monday morning, the 15th of October, the oratrix and the defendant. Field, were at Mr. Bradley's, and she was about to go to Windsor, accompanied by Mr. Bradley. At this time, according to the testimony of Mr. and Mrs. Bradley, both were in a high degree of excitement, wholly inconsistent with the cool deliberation and reflection with which a connection for life should be formed. The oratrix insisted on being then married to the defendant, and this was only prevented by the determination of Mr. Bradley not to marry them, and the re- fusal of Mrs. Bradley to have them married at their house by any other magistrate. She then left Brattleboro' with Mr. Bradley, and, having made a stop at Dummerston, the}' came to Putnej'j about ten miles from Brattleboro', where the mar- riage ceremony was performed which it is the object of this bill to annul. Mr. Bradley says that before they left his house they formed the determination to be married at the stage-house in Putney ; he says further that he does not recollect that any distinct proposal was made by the defendant to him and the IN DOMESTIC RELATIONS, 43 said Mary Almira that the marriage should take place at Put- ney, but as he withdrew all further opposition they apparently understood it as an act of assent on his part. Immediately after the ceremony took place the defendant went to his resi- dence at Eayetteville, and the oratrix, with Mr. Bradley, re- turned to the residence of her mother in Windsor. On her arrival at Windsor nothing was communicated to her mother or friends iu relation to the marriage at Putney, nor was the marriage at that time made public, or intended to be made public. It was therefore to be expected that they, know- ing of her engasement with Mr. Clark, and bavins; heard rumors of her having received attentions from Mr. Field, in- consistent with that engagagement, should have urged upon her the propriety of fulfilling it. Nor is it a matter of sur- prise, and certainly not a reason of complaint, that they should strenuously have urged and insisted on this, when the state of her aftections for the defendant, and the extent of her engage- ment to him, were studiously concealed from her mother and friends. It appears further that on her arrival home she wrote to the defendant, and on the next day to Mr. Clark. From her letters to Mr. Field on the 15th, 21st, and 28th October, it would appear that she entertained a strong affection for him, and probably viewed him as the husband with whom she should thereafter live, although the last letter does not breathe the same affection as the former ones. But on the 29th of October she wrote to Mr. Clark, then at Boston, a very pressing letter, urging him by motives which could not but be powerful, to come immediately to Windsor, and on the first day of ISTovem- ber Mr. Clark arrived. On the morning of the next day, for the first time, the communication of what had taken place at Putney is made by her to her mother, and her brothers and sisters, together with her views of the nature and intent of that ceremony, which will be noticed hereafter, and on that day she wrote to the defendant the following letter, which she sent by Judge AikenS : — To Mr. Roswell F. Sir : Moments of consideration and much reflection have at length caused me to see in its proper light the whole of my 44 ILLDSTRATIVE CASES late visit to Brattleboro'. That I have been led by you and others to a course of conduct which my own reason, sense, and feelings entirely disapprove, is now very clear to me. I there- fore write this to say to you that I am not willing on any ac- count to see you again, neither will I by any course you can adopt be prevailed upon to view the matter in a different light from what I now do. I leave you to the alternative of forever preventing the public avowal of a disgraceful transaction, of which you yourself said you were ashamed. Mary A. P. On the 6th of November she addressed another short note to him, assuring him that the letter sent by Judge Aikens con- tained her real sentiments, and on the 27th of the same Novem- ber she was married to Mr. Clark. Prom this history of the case, and from an examination of the evidence, it is to be decided what was the intent and nature of the ceremony at Putney ; for if it was intended to be a marriage between them, the present bill must be dismissed, however unfortunate and disastrous it may be to all the parties. The marriage with Clark was followed by the birth of issue in the September following. If the marriage at Putney is legal, she was an adultress, and the defendant, possessing those hon- orable feelings which are attributed to him, could not live with her or receive her as his wife. He could have no other than a strict legal right to be considered as her husband, and a simi- lar right to whatever of her property may remain, subject to the consideration of the Court, whether any part should be secured for her maintenance. As Clark has died pending this suit, it cannot now be claimed that she is living in adultery with him. These consequences, however, cannot vary the testimony nor alter the facts, and upon them we must found our decision, leaving the parties to the consequences of their own actions, whether for good or for evil. The evidence is satisfactory to us that the parties did not, by the ceremony at Putney, intend a marriage, so far as we can learn their intentions from the testimony, and by their acts and conduct. How she viewed it is beyond controversy. She was at the time undoubtedly sincere, intending to dismiss Clark, and at a future time to receive Mr. Field as her husband, IN DOMESTIC RELATIONS. 45 though it ia apparent both from her letter to Mr. Field on the evening of her return to Windsor, and her letter to Clark on the following day, as well as her conduct that evening and morning, that she felt unpleasantly. She does not appear to have been fully acquainted with the legal consequences of a solemnization of marriage until the conversation with her brother, Francis E. Phelps, on the morning of the second of November. It is inconceivable that she should have remained so long silent, and particularly that she should have written to Clark so pressingly to come up to Windsor, if she fully believed that she was lawfully the wife of another. How she declared it was to be considered, we learn from the testimony of her brothers, her sisters, and her mother. Francis E. Phelps says that early on the morning of the second November she in- formed him of the transaction at Putney, and told him that the defendant said if she would cheerfully go forward and stand up before a magistrate she might then go home, and after she got home she might then make her election, and, if she concluded to have Field, she could dismiss Clark, and Field could come up, court her, and be married. She said, further, " she had told Clark all about the Putney affair, and he had forgiven her." He further testified that she wanted him to tell them that she chose Clark, and did not want to have any- thing to do with Field. She gave the same account to her mother and to Mrs. Emerson, her sister, saying, in talking of the transaction at Putney, that it was never intended to he a mar- riage. When her brother, Francis E., told her that, if it was a marriage, she must live with Mr. Field, she burst into tears, wrung her hands, and said the ceremony at Putney was nothing, and that "Mr. Field would say so." Mrs. Emerson says that when she met Clark that morning at her house he observed that Almird thinks Bhe is married, but it cannot be so. This remark of Mr. Clark may have arisen, and probably did, from the information he derived from her brother, Francis E. Phelps, as, in the conversation Almira had with him early that morn- ing, she said she had told Mr. Clark all but the Putney affair. So far as her declarations and conduct aftbrd any indication of the light in which she viewed the ceremony at Putney, it is, as I have already remarked, undeniable that she did not con- 46 ILLUSTRATIVE CASES sider it as a marriage, bub in the nature of an engagement, pre-^ paratorj to a marriage to be thereal'ter bad. Yet these are but the declarations of the oratrix, and thej are denied in the an- swer; of course, tliey must be substantiated by other evidence, or they are to pass for nothing. On examining fui'ther the tes- timony of Francis E. Phelps, we learn that after the letter was sent by Judge Aikens, on the second of November, the defen- dant came to Windsor, and among a variety of other things which took place there, the witness says that during the stay of the defendant at Windsor, "I had some hours' conversation- with him with respect to the matters aforesaid, during which conversation I related to him Almira's history of the affair, as stated in my answer to the third direct interrogatory, avoiding any implication of Mrs. and Mrs. . Field admitted that the account which Almira has given of the Putney affair of the pretended marriage was true, and Field said that he and the said Mary Almira did agree that if she should elect to have him, he was to come up and court her and be married, and he had calculated so to do." And in answer to one of the cross inter- rogatories he says, " that he," Field, " did not at any time ap- prise me that the said ceremony of marriage was regarded by him as valid and legal and would be so treated ; but stated that her (Almira's) account of said ceremony, as represented by him to me, was correct, and that it was his calculation to come up and court her and be married." And he further says that he never understood from the said Marj' Almira and the said Field that the ceremony was of any validity whatever, or that it was so to be considered. In the conversation which the defendant had with Judge Aikens on the third of November, there appear some caution and wariness on the part of the defendant, proba- bly for reasons satisfactory ; but we learn from the testimony of Judge Aikens that he communicated to Field that Mary Almira had declared that a ceremony of marriage was had be- tween Mr. Field and her, and in answer to a cross interrogatory he says very positively that he expressly told Mr. Field that the family had learned from Mary Almira herself that a ceremony of marriage had been had at Putney, and that he came to Mr^ Field to learn the true character of that ceremony, at the re- quest of her family and friends. The defendant told him that IN DOMESTIC RELATIONS. 47 " whatever was the actual state of his connection with her, it was in her power to say what the end of it should he." And when Judge Aikens afterwards remarked to him that he should he glad of some more definite information from him he replied, " it rests with her to say whether the thing ends where it is or not ; her destiny is in her own hands." He testifies further that "the said Field in his interview with me did more than once reiterate the declaration in substance that the said Mary Almira was free to act as she pleased." And when, at a sub- sequent time, Judge Ail Kellee v. Phillips, Supreme Court of New York, 1868. 39 N. T. 351. Woodruff, J. The defendant was liable for such part of the goods mentioned in the plaintiffs' bill of particulars as were . purchased before the defendant gave notice forbidding them to sell to his wife and family on credit. In addition to such assent as would be presumed from the nature of the purchases and their actual use in his family, there was the authority re- sulting from some four or five years' dealings by the plaintiffs with the wife, and the payment of the bills by him, in direct sanction of the sales. This was ample to warrant a continu- ance of the like dealings and bound the defendant to pay for the further purchases, independent of the question how far, in the absence of such prior authority or sanction, the husband is bound by the contracts of his wife in the purchase of goods for domestic use. There was conflict in the testimony as to the time when the notice was given, the defendant fixing a date prior to the sale of any of the goods in question in the action, and the plaintiff Keller, and the clerk Snell, fixing a date prior to which two- thirds of the goods had been sold and delivered. Had the plaintiffs, under such conflicting evidence, recovered for the goods sold prior to the payment of the defendants' note, on which occasion the plaintiff says the prohibition was given, it would show that, in respect to the time when the notice was given, which was set up in the defendant's answer as his sole defence, the recollection of the plaintiff and the clerk was deemed by the jury more reliable tban the recollection of the defendant, and there could be no reason for disturbing the judgment. IN DOMESTIC RELATIONS. 103 But the recovery was also had for the goods sold after (ac- cording to the testimony of the plaintiff' and the clerk, as well as that of the defendant) the notice was actually given. And, that the conversation did take place in which the defendant forbade the plaintiffs to sell goods to his wife upon credit, and declared in terras quite emphatic, though profane and indecent, that he would not pay for goods so sold, is not in doubt ; it is sworn to by both parties, as well as in substance by one other witness. The rules of law relating to the power of the wife to bind her husband to payment for goods purchased by her for the use of herself and family are well settled. The husband is bound to provide for her and them whatever is necessary for their suitable clothing and maintenance, according to his and their situation and condition in life. And, ordinarily, he will be presumed to assent to her making such purchases as, in the conduct of the domestic concerns, are proper for her manage- ment and supervision; but he is at liberty to withhold such assent and destroy such presumption by an express prohibi- tion ; and if he do so, no one, having notice thereof, may trust the wife in reliance upon his credit, unless the husband so neg- lects his ^ own duty that supplies become absolutely necessary according to their condition. In the present case, therefore, the sale of the goods being proved, or not being denied by the defendant, the burden of proof was upon the defendant to show that the credit was given against his express dissent and notice thereof to the plaintiffs. This being proved, the burden was upon the plain- tiffs to show that the defendant did not suitably provide for his family according to his and their condition. Of that the plaintiffs were not to be the judges, except at the risk of estab- lishing it by proof, and of that they offered no testimony what- ever; but on the trial objected to the defendant's proving af- firmatively that he did so, and the justice excluded evidence offered by him tending to show in what mode, and in part to what extent, that provision was made. The defendant was not bound to show aflarmatively that he did so provide, and yet, so far as he appears to have been permitted, his testimony went to show that he did make suitable provision. 104 ILLUSTRATIVE CASES N"or is it enough that the articles sold are, in their nature and description, necessary and suitable for the use of the wife and family. If they were not so, there would be no presump- tion of the husband's assent to the purchase in any case. It is indispensable where the vendor has been forbidden to sell upon the wife's request, on the husband's credit, that the vendor show not only that the goods were in their nature suitable and necessary, but that the husband neglected his duty to provide supplies, and that, for that reason, they were necessary. These rules are elementary. Modern legislation, in preserv- ing to the wife all her own property, has taken away some of the grounds upon which the duty of the husband was placed by the common law, but it has not yet gone so far as to invest the wife with a discretion which the husband cannot control, and enable her to spend his property or involve him in debt against his will : Mott v. Comstock, 8 Wend. 544 ; Kimball v. Keyes, 11 Id. 33 ; 2 Sw. Dig. 31 ; 2 Kent's Com. 146 ; Blowers V. Sturtevant, 4 Denio, 49. It is suggested by counsel for the appellants that the jury may have inferred, from the conversation testified to, that the defendant was not in earnest when he forbid the plaintiffs trusting his wife on his credit ; that the plaintiffs did not think he was in earnest, and that 1;he defendant knew that they did not think he was in earnest. There was nothing in the conver- sation to warrant any such inference, and there was no room for speculation. On the contrary, no terms could be more ex- plicit or more apparently sincere. True, the plaintiff Keller declared to him that he would not refuse his wife any credit she asked for ; but the defendant declared that he would not pay a cent of it. This declaration of the plaintiff" Keller was either a rude and unwarrantable defiance of the husband or an expression of an intention to sell upon the wife's credit ; if the latter he was at liberty so to sell, but such sales would not bind the husband. It is also insisted that, from the fact that a bill for a part of the goods was stated by the defendant to have been laid upon his lap in the store of one Norton, it might be inferred that he either never intended the notice or prohibition to be acted upon or that he assented afterward to the sales made, and so IN DOMESTIC RELATIONS. 105 practically revoked it. Had the plaintiffs shown the circum- stances under which this bill was laid upon the defendant's lap, or by whom it was placed there, or that the defendant was called upon to pay it, and either assented or did not dissent, or any thing in short from which it could reasonably be inferred that the defendant accepted it as an account against him, there would be force in the argument ; but the bald fact that the bill " was laid on his lap in Norton's store," without showing by - whom, or what was said, or whether any one representing the plaintiffs was present to receive any assent or dissent, or how it came to be in iN'orton's store, or what was done with the bill thereafter, or even that the defendant retained it in his possession, warrants no inference at variance with his previous declared purpose. For these reasons the judgment of the General Term of the Supreme Court should be affirmed. Judgment affirmed. Sch. 54^58, 60, 61 ; Haynes v. Bennett, 114 Mass. 424 ; Day v. Burnhara, 36 Vt. 37 ; Ogden v. Prentice, 33 Barb. 160 ; Cotbran v. Lee, 24 Ala. 380 ; Cromwell v. Benjamin, 4:1 Barb. 558. To the same point. The spouses living apart. Walkbe v. Laighton. Supreme Court of 'New Hampshire, 1855, 11 Poster, HI. Assumpsit, for goods sold and delivered. The goods were described in a specification as provisions and other articles furnished to the defendant's family from June 23 to Decem- ber 24, 1853. The case was referred to an auditor, who re- ported the following facts : — Prior to February, 1853, the defendant, his wife, and three minor daughters, the eldest about eighteen years of age, re- sided together in his house on Vaughan Street, in Portsmouth. For some reason unknown to the auditor, the defendant, about 106 ILLUSTRATIVE CASES that time, left his family and went and resided in another house with his mother, who kept house for him iu Fleet Street, and has never since resided with them. He did not inform his family at the time what his purposes were. Afterwards he requested one Downing, a butcher, to furnish his family all they should want for their support ; and on the 2d of Febru- ary, 1853, said Downing so notified Mrs. Laighton, and sup- plied her till April 3, 1853, when he ceased to do business or furnish anything. Mrs. Laighton before this informed Down- ing she did not wish him to call again, and called upon him for nothing after April 3d. Downing had always the pecu- niary ability to furnish all necessary supplies for such a family. Until May, Mrs. Laighton proeured supplies for herself and family of Dodge & Laighton and of W. J. Laighton, on her husband's account, as she had done in years before. Early in May, the defendant notified these traders to furnish her noth- ing more, and they refused to supply her further. On the 2d of May, the defendant went to the house in Vaughan Street and nailed up a sign with " to let" upon it, and told his wife and daughters to pack up their things and he would send a carriage to take them to his house. He at the same time, too, told Mrs. Laighton that she need not ex- pect any happiness, for she would have none ; that he might take his family where he pleased, to Europe or to Illinois; that they must go where he said and see whom he pleased ; that none of their friends should come to see them — if they did he would shoot them on the spot ; that he should have his authority if he died for it ; that they must obey and respect him, go when he said and come when he said, but ask him no questions as to where or when. The family refused to leave the house. About May 7th the defendant caused to be pub- lished in the Portsmouth Journal a notice as follows : — " The subscriber, having provided at his own residence a home, and for the support of all persons who can claim of him a maintenance, hereby gives notice to the public that he will not pay any debts contracted against him after this date. William Laighton. "May 7, 1853." IN DOMESTIC RELATIONS. 107 After thi8 he refused to supply his family when requested by his wife, saying that he had everything at his house in Fleet Street, and they must come there. He, however, fur- nished his daughters some money for clothing, to the ampunt of forty dollars. In August he proposed to take his daughters to Mount Holyoke Seminary, but they declined to go. After this his wife and daughters kept the doors of their house fast- ened to keep him out. The defendant afterwards furnished some small articles of provisions and fuel. But the Auditor finds that the articles for which payment is claimed were necessary articles for the support of such a family, and were used for that purpose, and that they were furnished by the plaintiff by the order of Mrs. Laighton, who is his sister. There was a charge for bread, as to which it appeared that it was furnished by the bakers to Mrs. Laighton by the plain- tiff's order, and was used by her family ; that the bakers pre- sented a bill for it to the defendant, who refused to pay it, and it is still unpaid. Whether upon these facts the plaintiff is entitled to recover, is the question presented to the Court. Rollins, with Emery, for the plaintiff. The plaintiff is entitled to the full amount of his claim. I. From the Auditor's report it appears that the defendant left his wife and family without assigning any reasons for so doing. It does not appear that his wife or children gave him any cause or excuse for leaving them. He supported them for three months after he left them, and this, unexplained, is con- clusive that no conduct on their part caused the defendant to leave his family. He afterwards furnished some supplies which also shows that neither before he left, nor afterwards, had they done anything which had caused the separation. The Auditor finds that the supplies furnished were necessa- ries. The burden of proof, then, rests upon the defendant to rebut his liability : Eumney v. Keyes, 7 K H. Rep. 571, 580 ; Pidgin V. Cram, 8 Id. 351, and authorities there cited ; Bat- ton V. Prentiss, 2 Stra. 1214 and note; Macqueen on Hus- band and Wife, 140, 141 ; Bell on Husband and Wife, 25 ; 108 ILLUSTRATIVE CASES Norton v. Tazan., 1 Bos. & Pul. 226 ; Lockwood v. Thomas, 12 Johns, 250. II. There was no proof that the place he had provided was such as their habits and condition in life entitled them to have. III. The request by the defendant that she and her children should come and live with him in the house he said he had prepared does not excuse him, because the request was accom- panied with such language, conditions, and threats that his wife and children were not obliged to go and live with him as he requested, and apparently it would have been dangerous for them to do so : Redd v. Moore, 5 C. & P. 200 ; Macqueen on Husband and Wife, 141 ; Bell on Husband and Wife, 25. IV. The offer to furnish the supplies through Downing can- not avail the defendant in this suit : 1. Because the supplies he was to furnish were those connected with his business as a butcher only. This is clear from the fact that the drygoods and grocery stores furnished supplies to the defendant's family by his order during the time covered by the directions to Downing, and after he ceased going there with his cart. 2. Because Downing ceased entirely to furnish anything before the plaintiff's bill began. V. The notice published cannot avail the defendant : 1. Be- cause no knowledge of it is brought home to the plaintiff: Fredd v. Ewes, 4 Harring. 385 (10 U. S. Dig., Husband and Wife, 30). 2. If these circumstances authorized the furnish- ing of the supplies, no notice will exempt him from the liabil- ity : Macqueen on Husband and Wife, 142 ; Dixon v, Hunell, 8 C. & P. 117 ; Harris v. Morris, 4 Esp. 41. Hatch, for the defendant. Bell, J. The defendant, without cause, left his house and his family and went elsewhere to reside. He thereby became responsible to furnish to his wife and children necessaries suit- able to his standing and property : Balton v. Prentiss, 2 Stra. 1214 ; Norton v. Fazan, 1 B. & P. 226 ; Eobinson v. Grinold, IN DOMESTIC RELATIONS 109 1 Salk. 119 ; Hodges v. Hodges, 1 Esp. 441 ; 1 Selw. K P. 530 ; Evans v. Fisher, 5 Gil. 569. The wife must be regarded as living separately from her husband by his consent and desire, in which case, if no suf- ficient provision for her support is secured to her by her hus- band, she has the authority to pledge his credit for her main- tenance : Pidgin v. Cram, 8 N. H. Rep. 350 ; Lockwood v. Thomas, 12 Johns, 248 ; Dixon v. Hunell, 8 C. & P. 717 ; Read v. Legard, 4 Eng. L. & E. Eep. 523 ; Fredd v. Ewes, 4 Harr. 385 ; Frost v. Willis, 13 Vern. 302 ; Alna v. Plumer, 4 Greenl. Rep. 258. The husband, living voluntarily in a state of separation from his wife, is liable for the necessaries furnished to his children residing with her. By suffering them to reside with their mother he constitutes her his agent and authorizes her to contract debts for clothing and necessaries for them : Rumney V. Keyes, 7 IST. H. Rep. 571 ; Kimball v. Keyes, 11 Wend. 32 ; Van Valkenburgh v. Watson, 18 Johns. 480. So far as is shown by the case the defendant furnished some necessaries, and allowed his wife to obtain others, for which he paid till May, 1853. At that time he forbade those persons who had previously furnished her with articles needed for the family to furnish her with anything further on his account, and they declined afterwards to supply her, and he published in one of the newspapers printed at Portsmouth, where the parties resided, a notice that he had made provision for them at his residence, and that he would not pay for any articles furnished them on his account, and called upon his wife and daughters to go to his house to reside, which they refused to do. The husband who has causelessly deserted his wife may in good faith seek a reconciliation, and if the wife under such circumstances refuses to live with him again without good cause, she becomes from that time the party in the wrong and has no longer any authority to pledge his credit, even for necessaries, more than she would have had if she had herself originally left him without cause. See Child v. Ilar- dymau, 2 Stra. 875 ; McCutchen v.. McGahay, 11 Johns. 281 ; McGahay v. Williams, 12 Id. 293. 110 ILLUSTRATIVE CASES And it makes no difference that he desires her to change her residence and to go to live with him at some other place not unsuitable for her residence, since he . has the right to choose his own residence, and it is the duty of the wife and children to conform to his wishes in this respect : E.umney v. Eeyes, 7 N. H. Rep. 571 ; Kimball v. Keyes, 11 Wend. 32. But it is objected that the evidence fails here to show any wish or effort on the part of the husband in good faith to seek a reconciliation or that his wife should return to live with him again, and the conversation between him and his family, about the first of May, is relied upon to disprove any such wish on his part. This is the same conversation, proved on the part of the defendant, to show his desire for a i-econciliation. "We have, therefore, considered with care what was then said, and our conclusion is that what was said by the husband on that occasion completely disproves any sincere wish that his wife and daughters should remove to his residence to live with him. It was a formal request to them to go to his house, but it was accompanied with such threatening language and such unreas- onable claims upon them as were calculated, and, as it seems to us, must have been designed, to prevent their removal. The effect of the whole conversation, as it impresses our minds, is rather a notice to them not to come to his house, a threat of undefined evil if they did come, rather than a sincere invitation to them to come. If the separation had been previously by mutual consent, it seems to us it might be properly regarded as a separation com- pelled by the misconduct of the husband after such an inter- view. Eut it is not . necessary to go farther than to say that the separation having been originally the act of the husband, the position of the parties was not at all changed by the re- quest to remove to his residence and live with him, accom- panied by such conversation. The operation of this was to neutralize the whole effect of the application, to stamp it with a want of good faith and sincerity, and to leave the parties in the same situation as if he had said nothing. The husband has the right to select the place where he will provide for his family, provided it is not unsuitable to their condition and to his means, and they are bound to receive it IN DOMESTIC RELATIONS. Ill there ; but it is never sufficient for him to notify them that he has made provision for their support at a given place to relieve himself from their support if they decline going there. If others havg furnished them with necessaries, he must further show that he had in fact made suitable provision for them there. In this case there is no evidence of any such provision, and in consequence of the want of it the whole matter of the notice to his wife and family to go to his house to receive their sup- port fails as to this plaintiff. The notice in the newspaper is also without effect as to the plaintiff, since there is here no proof tending in the slightest degree to show that it ever came to his notice : Kimball w. Keyes, 11 Wend. 32 ; 1 Bac. Ab. 488 ; Fredd v. Ewes, 4 Harr, 385. A bill for bread, charged in the plaintiff's account, was pre- sented by the baker to the defendant for payment. This fact is evidence tending to show that the bread was furnished by the baker on the defendant's credit and not by the plaintiff. If it was a case of doubt it would deserve to be weighed, but the present is not such a case. The Auditor finds expressly that the bread was furnished to Mrs. Laighton by the plain- tiff's order. He was, of course, responsible to the baker, and the baker is to be regarded merely as his agent in the delivery of the bread. The presentment of the bill to the defendant was entirely immaterial to the plaintiff. Judgment on the report. Hultz V. Gibbs, 65 Pa. St. 360 ; Eeynolds v. Sweetzer, 15 Gray, 78 ; Thorpe v. Shapleigh, 67 Me. 235 ; Alley v. Winn, 134 Mass. 77 ; Minn. St. 1878, c. 69, s. 2, 3 & 4. 112 ILLUSTRATIVE CASES (c) Effect of the wife's injuries and frauds. By the coverture theory the husband became liable for all the injuries and frauds of the wife committed before as well as after marriage. If committed out of his presence and not by his command, both husband and wife are liable ; if by the husband's command or in his presence, the husband alone is liable. Marshall v. Oakes. Supreme Court of Maine, 1864. 51 Me. 308. Exceptions from ruling at nisi prius of Barrows, J. Replevin. The defendants claimed that the sheep replevied were the property of the female defendant. It was admitted that the defendants were husband and wife. There was evidence tending to show that the wife was the active party in taking the sheep. The defendants excepted to the refusal of the presiding Judge to give the jury the following requested instructions : — 1. That if the title to the sheep in question is found by the jury to have been in the plaintiff at the time of the alleged taking and detention ; and also find that the defendants were husband and wife at the time of the alleged taking and deten- tion, and that the taking and detention were by them jointly or in company of each other, or by the wife in the presence of the husband, their verdict should be for the defendants. 2. That if the title to the sheep in question is found to have been in the plaintiff at the time of the alleged taking and de- tention, and that the defendants were husband and wife at the time of the alleged taking and detention, and that the taking and detention were by them jointly, or by the wife in the pres- ence of the husband, or in his company, that the husband is alone guilty and liable. Bolster ^ Richardson, in support of the exceptions. Hammons, contra. IN DOMESTIC KELATIONS. 113 The opinion of the Court was drawn up by Kent, J. The instructions actually given are not stated in the exceptions. The exceptions are to the refusal of the Judge to give the specific rulings requested. We are only called upon to determine whether the Judge was bound to give the precise instructions requested. These requests were, in substance, that if the plaintift' had proved property in himself and a taking and detention by the defendants, yet, if the defendants were husband and wife, and the taking and detention were by them jointly, or by the wife in presence of her husband, that the verdict must be for the defendants, or, at least, that the hus- band alone could be held guilty. The general rule of the common law is that the husband ia liable for the torts of his wife : Hawks v. Hamar, 5 Binney, 43. But the question here is as to their joint liability. When the tort or crime is committed by the wife alone, and without the presence or direction of her husband, she may be held liable, civilly and criminally. In such cases the civil action must be against both the husband and the wife: 2 Kent's Com. 149; Head v. Briscoe, 6 Car. & P. 484 (24 E. C. L. 419) ; Key- worth V. Hill & ux., 3 B. & Aid. 685 (5 E. C. L. 422). But if committed in his presence and by his direction, he alone is liable : 2 Kent's Com. 149. The prima facie presumption is, that the wife acted under coercion, if the husband was actually present. This presump- tion arises as well in civil suits for torts as in criminal cases : Hilliard on Torts, c. 42, § 57. If nothing appears but the fact that the wrong was done whilst they were both together, the jury should be instructed to acquit the wife. Such presumption, however, is but prima facie, and may be rebutted by the facts proved, showing that the wife was the instigator or more ac- tive party, or that the husband, although present, was incapa- ble of coercion — or that the wife was the stronger of the two : "Wharton's Am. Cr. Law, book 1, § 73 ; 1 Hale 516. The coercion must be at the time of the.act done, and then the law, out of tenderness, refers it, prima facie, to the coercion of the hus- band : lb., § 74. This presumption is one of the compensations, or offsets, 8 114 ILLUSTRATIVE CASES which the old common law gave for the benefit and protection of the wife for its stern and unyielding doctrines in relation to the superior marital rights of the husband, bj which the rights — the personal property and legal existence of the wife — are nearly all lost or merged in her baron or lord. As was forcibly said by Mr. Justice Emery, in State v. Burlingame, 15 Maine, 106, " the whole theory of the common law is a slavish one, compared even with the civil law. The merging of the wife's name in that of her husband is emblematic of the fate of all her legal rights. The torch of Hymen serves but to light the pile on which those rights are offered up." It was a natural and logical result, as the founders of the common law clearly saw, that, if the husband was to be re- garded as the head and sole representative of the union, the wife should have the benefit of her legal nonentity, when acting in presence of her husband, even if she apparently was not an unwilling actor. Her misdemeanors and trespasses were to be looked upon, not as arising from the promptings of her own mind or will, but as the result of the overpowering commands or coercion of him whom she had promised to obey. How carefully the fathers studied the first case in point, re- corded in the history of man (Genesis, ch. iii.), or some of the subsequently reported cases, where, to common observation, the woman and wife appears as the prime mover in wrong and mischief, we cannot know and need not discuss. But to meet the actual facts of history and observation, the law has engrafted the qualifications on the rule, before stated, viz., that the prima facie presumption may be overcome by the proof in the case, that, in fact, the wife was the originator, dictator, and principal offender : Hilliard on Torts, c. 42, § 1 ; Com. V. Lewis, 1 Met. 153. Where there are other facts estab- lished, besides the presence of the husband, as to the participa- tion of the wife in originating and carrying on the common purpose, which tend to rebut the presumption, it is a question for the jury to determine whether or not the presumption is overcome. In the case at bar, as before stated, we are called upon to determine only whether the Judge was bound to give the instructions requested or either of them. We are not to pre- IN DOMESTIC RELATIONS. 115 sume that no instructions on the point were given, or that those given were necessarily erroneous, because those requested were not given. But if the requested and refused rulings cover the whole ground and contain the true rule which should govern and control the case, the party may sustain his excep- tions. "When the refusal of the specified instructions neces- sarily implies that a contrary and incorrect rule was given, or that the jury were left without instructions on the point ; or when they cover the whole principle, and it is clear that the case required that the law should thus be stated, exceptions may be sustained, although only the requests are stated in the report. Unless a party is quite certain that his requests cover the whole ground, it is always safer to state what the actual rulings were. In this case, the requests were that the jury should bo in- structed as matter of law, absolute and conclusive, that if the husband and wife were both present and the taking was joint, or by the wife in the presence of the husband, the verdict must be for the defendants, or at least for the wife ; or, in other words, that the presumption arising from the presence of the husband was conclusive in law, and that it could not be rebutted by other facts. The true rule, as we have seen, is that such presence raises a prima facie presumption, subject to be overcome by proof negativing clearly the presumed coercion or command. We have nothing in the case to show that the instructions given were not in the very words of the request, with the addition or qualification above stated, in reference to rebutting testimony. We do not think the Judge was bound to give the requested instructions, as a rule of law, without the qualification. When the requested instructions would have been correct, with the addition of a single qualifying word, the omission of that word in the requests was held fatal to the exceptions : Stowe V. Heywood, 7 Allen, 118. The requests, in this case, state but a part of the rule and are therefore imperfect. On looking at the evidence, as reported, there seems to be enough for the consideration of the jury on the question 116 ILLUSTRATIVE CASES whether the presumption was overcome or not. The wife claimed the property as her own, and seems to have been quite active in the taking, and apparently of her own will and motion. At all events, the Judge was not bound to say, as matter of law, that there was no evidence tending to show a state of facts which might rebut the presumption. In an action of trespass against husband and wife for a joint assault, where the evidence was that the wife was the real and principal offender, it was held that it was clearly a case to be submitted to a jury ; the presumption being only prima facie, and, like other presumptions, liable to be overcome by testimony : Hilliard on Torts, c. 42, § 7. It is unnecessary to consider the effect of the recent statutes in relation to married women. Exceptions overruled. Judgment on the verdict. Appleton, C. J., Cutting, Davis, Dickerson, and Barrows, JJ., concurred. Sch. s. 75-78 ; Brazil v. Moran, 8 Minn. 205 ; Cassin v. Delany, 38 N. Y. 178 ; Ball v. Bennett, 21 Ind. 427. The statutes of the States have in some cases abro- gated the liability and in others modified it. Martin v. Eobson. Supreme Court of Illinois, 1872. 65 111. 129, Thornton, J. Since the passage of the Acts of 1861 and 1869 (Session Laws of 1861, 143, and of 1869, 255) is the husband liable for the torts of the wife during coverture, committed when he was not present, and in which he in no manner par- ticipated ? Those statutes give to the wife, during coverture, the sole control of her separate estate and property acquired in good IN DOMESTIC RELATIONS. 117 faith from any person other than her husband, and her own earnings for labor performed for any person other than her husband or minor children, with the right to use and possess the property and earnings, free from the control or interference of her husband. In determining the intent, object, and effect of these enact- ments, it will be interesting to place, in juxtaposition, the rights and duties, liabilities and disabilities of husband and wife, incident to the marriage union, as they existed at common law, and the changes made by the statute. At common law he had control, almost absolute, over her person ; was entitled, as the result of the marriage, to her ser- vices, and consequently to her earnings ; to her goods and chat- tels ; had the right to reduce her choses in action to possession, during her life ; could collect and enjoy the rents and profits of her real estate; and thus had dominion over her property, and became the arbiter of her future. She was in a condition of complete dependence ; could not contract in her own name ; was bound to obey him ; and her legal existence was merged in that of her husband, so that they were termed and regarded as one person in law. As a necessary consequence, he was liable for the debts of the wife dum sola, and for her torts and frauds committed dur- ing coverture. If they were done in his presence, or by his procurement, he alone was liable; otherwise they must be jointly sued. Now, he cannot enjoy the profits of her real estate without her permission. He has no control over her separate personal property. It is not subject to his " disposal, control, or interfer- ence." Language could not be more explicit. All her sepa- rate property is " under her sole control, to be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried." He has no right to use or dispose of a horse or a cow without her consent. He can no longer interfere with her choses in action. They are under her sole control. The product of her labor is her exclusive property. She alone can sue for and en- joy it. Any suit for her earnings must be in her own name, and she may use and possess them free from the interference of her husband or his creditors. 118 ILLUSTRATIVE CASES The language of the statute of 1869 is, " that a married woman shall be entitled to receive, use, and possess her own earnings, and sue for the same in her own name, free from the interference of her husband." The words, "free from the interference of her husband," apply as well to the right to receive, use, and possess, as to the right to sue for her earnings. The right, therefore, to receive and use her own earnings, uncontrolled by the husband, is con- ferred in express terms. The practical enjoyment of this right presupposes the right to appropriate her own time. The right to take and possess the wages of labor must be accompanied with the right to labor. If the husband can control, then the statute has conferred a barren right. If the wife can still only acquire earnings with his consent, then the statute was wholly unnecessary, for she might have done this prior to its enact- ment. The clear intent of the statute is not alone to give to the wife the right to accept and use her earnings, but the right to labor, and thus acquire them. The intention of the Legislature to abrogate the common law rule to a great degree, that husband and wife were one person, and to give to the latter the right to control her own time, to manage her separate property, and contract with ref- erence to it, is plainly indicated by these statutes. While they do not expressly repeal the common law rule that the husband is liable for the torts of the wife, they have made such modification of his rights and her disabilities as wholly to remove the reason for the liability. The rights acquired by the husband by virtue of the mar- riage have almost all been taken away, and the disabilities of the wife have nearly all been removed. She now controls her own estate entirely, except that, by construction of the Courts, she cannot convey her real estate without her husband. This, however, is solely for her protection and to prevent the squan- dering of the estate. He has now only a modified tenancy by the curtesy, dependent upon a contingency, and no estate vests during the life of the wife. This is rather a shadowy estate. It is an interest which may possibly ripen into something tangible in the uncertain future. Previous to the Act of 1861, it could be sold on execution against the husband ; now, the IN DOMESTIC RELATIONS. 119 wife has the sole control of her real estate during her life, and the husband has no interest until her death. She must sue alone for breach of covenant in a deed to her. This estate, at best, is now a bare possibility : Cole v. Van Riper, 44 111. 58 ; Beach v. Miller, 51 Id. 206. A liability which has for its consideration rights conferred, should no longer exist when the consideration has failed. If the relatione of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time, every principle of right would be vio- lated to hold him still resp onsible for her conduct. If she is emaeipated, he should no longer be enslaved. For the policy and wisdom of the legislation which has effected a change so radical, the Legislature alone is responsible. The Courts must guard against a construction which might prove mischievous and result in a practical divorcement of man and wife, if such construction can be avoided. In Cole V. Van Riper, supra, this Court said that the Legis- lature never could have intended, by the enactment of 1861, to loosen the bonds of matrimony, or to enable the wife, at pleas- ure, to effectuate a divorce a mensa et thoro, or to confer the power to restrict the husband to the use of a particular chair, or to forbid him to take a book from the library without her permission. We shall not insist that such unwifelike conduct can even be justified since the law of 1869. The inquiry is therefore pertinent: "What is left of the nuptial contract ? What duties and obligations still exist ? As the result of the marriage vow, and as a part of the con- tract, the wife is still bound to love and cherish the husband, and to obey him in all reasonable demands not inconsistent with the exercise of her legal rights ; to treat him with respect, and regard him at least as her equal ; and he is still bound to protect and maintain her, unless she should neglect wholly her marital duties as imposed by the common law, or assume a position to prevent their performance, and thus deprive him of her society, mar the beauty of married life, and disregard the household good. These duties and obligations upon husband and wife were not the result of the arrangement of their property at common 120 ILLUSTRATIVE CASES law, but of the contract of marriage and the relation thereby created. By the marriage she became one of his family, and he was bound to provide her a home and necessaries there, but not elsewhere. . He must furnish her with necessaries, from a principle of duty and justice: 2 Kent's Com. 148. " The duties of the wife, while cohabiting with her husband, form the consideration of his liability for her necessaries :" Mc- Cutchen v. McGahay, 11 Johns. 281. This doctrine is approved by Kent in his Commentaries, vol. 2, 146. The argument urged to maintain the responsibility of the husband for the torts of the wife, because he may still be bound to provide necessaries, is not appropriate. Upon the marriage, at common law, his assent to her contracts for necessaries was presumed, upon proof of cohabitation. If she eloped, though not with an adulterer, the husband was not chargeable for neces- saries. But elopement did not release him from liability for her debts dum sola, or for her torts. The rule at common law, as to the liability for necessaries, is, if a man, without justifiable cause, turns away his wife, he is bound for her contracts for necessaries suitable to her degree and estate. If they live together, and he will not supply her, or the necessary means, she can then pledge his credit for necessaries strictly ; but if he provides for her, he is not bound by her contracts, unless there is evidence to prove his assent. He is not bound by her contracts unless they are made by his authority or with his concurrence, except he makes no provi- sion for her : Montague v. Benedict, 3 Barn. & Cress. 631 ; Montague v. Espinesse, 1 Car. & Payne, 502 ; Atkins v. Cur- wood, 7 Car. & Payne, 756. The plain reason for the obligation was the cohabitation, or the right to enforce it, and the consequent right to her obedi- ence and services. Even though she lived separate from him, supported her children, and earned a salary, the party owing her had no right to pay her after notice from the husbaud not to do so. He could, in such case, sue for and recover the salary : Glover v. Proprietors of Drury Lane, 2 Chittj', 117. Now, how changed ! Her earnings, except for services she IN DOMESTIC KELATIONS. 121 may render to him and his minor children, are her exclusive property, whether living apart from or with him. No principle is better settled, at common law, than that the husband is not liable for necessaries furnished to the wife if she leaves him without any fault on his part. But he was respon- sible for her torts until a dissolution of the marriage, even in case of separation. Where the husband and wife lived apart, and she published a libel of a third person, he was held to be answerable,notwith- standing the separation : Head v. Briscol and Wife, 5 Carr. & Payne, 484. The foundation for the liability in the two cases is different. In the one case it was based upon cohabitation, and the enjoy- ment of the society and services of the wife as a necessary con- sequence. In the other case it rested more particularly, if not exclusively, upon the fact that the husband became the abso- lute owner of her personal property, and had the right to receive the rents and profits of her real estate. It is also urged, as a reason for the continued liability of the husband for the torts of the wife, that this obligation was imposed upon him at common law, whether she was poor or wealthy, and that therefore the statutes have produced no dif- ferent rule. If she did not enrich him with property — if she did not endow him with gold — she endowed him with a nobler gift and a greater excellence. She enriched him with her society, advised and encouraged him as one who had no separate inte- rests, and freely gave to him her time, industry, and skill. As a means of paying her debts and damages for her torts, her counsel and earnings might be as important as her accumulated property. The distinction between the liability of the husband for the contracts of the wife before marriage and for her torts during marriage — as for slander uttered by her alone — is too dim to be easily seen. He was made liable for her debts at the period of marriage, because the law gave to him all her personal estate in possession and the power to recover her personal property in action : Bright's Hus. & Wife, vol. 2, p. 2. 122 ILLUSTRATIVE CASES He was bound to pay her indebtedness because he adopted her and her circumstances together : Black. B. 1, 443. The law made him liable to the debts to which he took her subject, because he acquired an absolute interest in her personal property, had the receipt of the rents and profits of her real estate during coverture, and was entitled to whatever accrued to her by her industry or otherwise during the same period : Staph. Nisi Prius, vol. 1, p. 726. The reason for the liability, according to some authorities, is that, by the marriage, the wife was deprived of the use and disposal of her property, and could acquire none by her indus- try, as her person and earnings belonged to the husband : Tyler on Infancy and Gov., sec. 216. The same author, after declaring the husband's liability for the debts and torts of the wife, saj's : " The reason assigned for such liabilities at common law is, that he was entitled to the rents and profits of the wife's real estate during coverture, and to the absolute dominion over her personal property in posses- sion :" Sec. 233. The common law was never guilty of the absurdity of impos- ing obligations so onerous without conferring corresponding rights. Hence, besides the rights of property, the legal pre- eminence was exclusively vested in the husband. He was an- swerable for her misbehavior, and hence had the right of restraint over her person : Black. B. 1, 444. Lord Kaimes, in his Sketches, says : " The man bears rule over his wife's person and conduct; she bears rule over his inclinations ; he governs by law, she by persuasion." In the matter of Cochrane, 8 Bowl. P. C. 632, the wife was, upon the hearing of a writ of habeas corpus, restored to her hus- band upon the principle that she was under his guardianship, and that the law entitled him, " for the sake of both, to protect her from the danger of unrestrained intercourse with the world, by enforcing cohabitation and a common residence." So long as the husband was entitled to the property of the wife and to her industry ; so long as he had power to direct and control her and thus prevent her from the commission of torts, there was some reason for his liability. The reason has ceased. The ancient landmarks are gone. The maxims and authorities IN DOMESTIC KELATIONS. 123 and adjudications of the past have faded away. The founda- tions hitherto deemed so essential for the preservation of the nuptial contract and the maintenance of the marriage relation are crumbling. The unity of husband and wife has been sev- ered. They are now distinct persons, and may have separate legal estates, contracts, debts, and injuries. To this conclusion have all the decisions of this Court tended. So far as the separate personal property of the wife is concerned, she is now the same as a feme sole. She need not join her hus- band with her in a suit to recover it, or for the trespass to it, as her rights only are aflfected, and she must sue alone for any invasion of them. She may even prosecute a suit against her husband for any unlawful interference with her property, con- trary to her wishes : Emerson v. Clayton, 32 111. 493. The right of action for personal injuries to the wife is prop- erty. She may sue alone for the recovery of damages for such injuries, and the husband cannot, without her consent, release them: C. B. & Q. E. R. Co. v. Dunn, 52 111. 260. In the same case it is said that she can maintain, in her own name, an action for slander of her character. If she alone is entitled to receive and appropriate to her own use damages recovered for slander of herself, she should answer for her slander of others. Until the law of 1869, this Court adhered to the common law rule, that the husband was responsible for the debts of the wife contracted before marriage. It was repeatedly declared that the liability rested, not only upon the fact that the hus- band, upon the marriage, became the owner of the wife's per- sonal property, when reduced to possession, and of a life estate in her realty, but upon the ground that he was entitled to the entire proceeds of her time and her labor, and that, notwith- standing the law of 1861, he was still entitled to her earnings : Conner v. Berry, 46 111. 371 ; McMurty v. Webster, 48 Id. 123. The last decision was made in 1868. Then followed the law of 1869. In the first adjudication made under it, it was held that, as she now owned separate property, and enjoyed her own earn- ings, she must pay the costs incurred in attempting to main- tain her rights : Musgrove v. Musgrove, 54 111. 186. 124 ILLUSTRATIVE CASES In Howarth v. Warmser, 55 111. 48, the husband was declared to be discharged from his former liability to pay the debts of the wife contracted before marriage, by force of the legislation unxier consideration. A married woman may now be sued at law upon her con- tracts as to her separate property : Cookson v. Toole, 59 111. 515. She may now execute a valid lease of her separate real estate without joining her husband, and without his consent : Parent V. Callerand, 64 111. 97. So diverse are the rights and interests, the duties, obliga- tions, and disabilities of husband and wife now, that it would be most unreasonable to hold him still liable for the torts com- mitted without his presence and without his consent or appro- bation. If he is not bound to pay her debts, why should he be responsible for her torts ? When the ground-work is gone as to one, it is gone as to the other, and the structure of the past must fall before the innovations of the present. She is now, to a very great extent, independent of him, and is clothed with rights and powers ample for her own protec- tion ; and so far as her separate property is concerned, is re- sponsible for her debts and contracts with reference to it. They are not one, as heretofore. They are one in name, and are bound by solemn contract, sanctioned by both divine and human law, to mutual respect ; should be of the same house- hold, and one in love and affection. But a line has been drawn between them, distinct and inef- faceable, except by legislative power. His legal supremacy is gone, and the sceptre has departed from him. She, on the contrary, can have her separate estate ;■ can con- tract with reference to it ; can sue and be sued, at law, upon the contracts thus made ; can sue, in her own name, for injury to her person and slander of her character, and can enjoy the fruits of her time and labor free from the control or inter- ference of her husband. The chains of the past have been broken by the progression of the present, and she may now enter upon the stern conflicts of life untrammelled. She no longer clings to and depends upon man, but has the legal right and aspires to battle with him in the contests of the forum ; to outvie him in the healing IN DOMESTIC RELATIONS, 125 art ; to climb with him the steps of fame, and to share with him in every occupation. Her brain and hands and tongue are her own, and she should alone be responsible for slanders uttered by herself. Our opinion is that the necessary operation of the statutes is to discharge the husband from his liability for the torts of the wife during coverture, which he neither aided, advised, nor countenanced. The judgment is reversed and the cause remanded. Judgment reversed. Burt V. McBain, 29 Mich. 260 ; Baum u. Mullen, 47 N. T. 577 ; Minn. St. 78, c. 899, s. 286 ; Minn. Gen. Laws, 1889, c. 109 ; Id. 1891, c. 123. (d) Effect on the wife's personal property. At common law by marriage all the wife's personal property in possession passed to the husband. Morgan v. Thames Bank. Supreme Court of Connecticut, 1840. 14 Conn. 99. Storrs, J. The bank stock, for the value of which this action is brought, having been regularly transferred by the executor and trustee of Jeremiah Kinsman, deceased, the former owner, to his daughter, who was the wife of Benjamin Bacon, in pursuance of and agreeably to the terms of the will of said deceased, the title to it vested, on such transfer, in the said Bacon, and became liable to be levied on, as his property. No rule is better established than that personal property, accruing to the wife during coverture, including choses in action, vests immediately and absolutely in the husband, on the principle that husband and wife ai-e but one in law, and her existence, in legal consideration, is merged in his : Fitch v. Ayer, 2 Conn. Rep. 143 ; Griswold v, Penniman et al., 2 Conn. Rep. 564. And there is nothing which we discover in the circumstances of this 126 ILLUSTRATIVE CASES property which delivers it from the operation of this general principle. On this point, therefore, the charge was unexcep- tionable. But we think that the Court erred in charging the jury that the plaintiff was not bound to prove a conveyance of the stock to him, by the officer, other than by such officer's return on the execution. This would undoubtedly be sufficient proof of a transfer of ordinary personal estate, by a sale on execution ; no instrument of conveyance by the officer to the purchaser being made necessary by law in such cases. But the statute prescribing the manner of levying executions on rights or shares in the stock of any bank or other corporation, after pointing out the manner in which they shall be taken, posted, and sold, directs that the officer " shall thereupon give to the purchaser an instrument in writing, conveying to him such rights or shares ;" and, after further directing him to leave with the cashier, secretary, or clerk a true and attested copy of the execution, and of his return thereon, declares that "the purchaser shall thereupon be entitled to all dividends and stock, and to the same privileges, as a member of such com- pany or corporation, as the debtor was entitled to;" Stat. 65, tit. 2, s. 80 (ed. 1838). The reason for requiring such written conveyance, in these cases, probably arose from the peculiar nature of the property to be sold, which, being incorporeal and not susceptible of manual delivery, could not be placed in the visible possession of the purchaser, like ordinary personal property. By this provision, it is necessary, in order to vest the title in the pur- chaser, not only that the shares should be sold to him, but that the officer should also convey them to him by a written instru- ment ; for it is upon a performance of these acts that, by the express terms of the statute, he becomes entitled to the stock and to the privileges of a member of the corporation. This being the only mode by which the property can be transferred, under an execution, to the purchaser, it results that he must, in order to show his title, prove that these requisites have been complied with. One of these requisites being such written instrument of conveyance, that can only be proved (no question of secondary evidence, in consequence of its loss, being raised) IN DOMESTIC RELATIONS. 127 by the production of the instrument itself. For it is an obvi- ous principle, that where the law points out a particular mode by which alone property shall be transferred, a compliance with it must be shown ; and where a written instrument is required the production of it cannot be dispensed with ; nor can oral evidence be substituted for it, excepting where it is necessary to resort to it as secondary evidence. Thus, a conveyance of land, a will, or an agreement under the Statute of Frauds can be proved only by the production of the written instrument which the law requires in such cases ; and a defect in them cannot be supplied by parol evidence: Bay lis et al. v. Attorney- General, Bui. ]Sr. P. 298 ; s. c. 2 Atk. 239, 240 ; Woollam v. Hearu, 7 Ves. 211 ; Stark Ev., part 4, 602, 612, 995, 996. And we can see no more reason in the present case for dis- pensing with the production of the instrument which is required to be given by the officer than in the case where a purchaser claims title to real estate under a collector, by whom it has been sold and conveyed by deed for the non-payment of taxes. On this point, we think that a new trial should be granted. Therefore, a decision on the other questions made becomes unnecessary ; and as they are of great general importance, we are the less inclined to settle them here, since, if it should become necessary hereafter, we can have the benefit of a full Court, which was not present when this case was argued. In this opinion the other Judges concurred, except Church, J., who was not present. New trial to be granted. Sch. s. 80-83 ; 2 Kent, Com. 143 ; Legg v. Legg, 8 Mass. 99 ; Lamphir V. Creed, 8 Ves. Jun. 599 ; Winslow v. Crocker, 17 Me. 29 ; Hopkins v. Carey, 23 Miss. 54 ; McDavid v. Adams, 77 111. 155. 128 ILLUSTRATIVE CASES Marriage operates on choses in action as a condi- tional gift; they must be reduced to possession during the life of the husband. Tkitt v. Colwell. Supreme Court of Pennsylvania, 1858. 31 Pa. St. 228. Strong, J. Prior to the Act of Assembly of April 11, 1848, marriage, though not an absolute gift of the wife's choses in action, vested in the husband a right to them, on condition that he should reduce them into possession during the cover- ture. Her separate civil existence being suspended and merged in his, he succeeded necessarily to all her power and dominion over her chose, and could exercise that power as fully as she could have exercised it had she remained sole. That reduction into possession, which made the chose absolutely, as well as potentially, the husband's, was a reduction into possession not of the thing^ but of the UtU to it. Consequently, his legal as- signment of her chose in action barred the wife's right of sur- vivorship, for it took away her legal title, upon which alone that right rested. The only reason why an equitable assign- ment did not always work the same results was that the as- signee was compelled to go into equity (a thing in action not being assignable at law), and when in equity, a Chancellor would not interpose in favor of a volunteer against the conjugal rights of the wife. But when the assignee had an equity resulting from the payment of a valuable consideration, an equitable assignment was as available as a legal one — equally transferred the wife's title and equally barred her survivorship. The equit- able assignment was a declaration of trust, and a valuable con- sideration paid moved the Chancellor to decree its execution. While, therefore, the husband's equitable assignment of a wife's chose in action, without value received, was unavailing to de- prive her of the right of survivorship, an assignment for a valuable consideration did defeat it, and passed the title to the IN DOMESTIC RELATIONS. 129 assignee as fully as if it had been made by the wife before coverture. It is unnecessary to pursue this subject further. The mas- terly discussion of Chief Justice (4ibson in Siter's Case, 4 Rawle, 468, has left almost nothing unsaid. If, then, the transaction between George M. Phillips and William Graham was an assignment of the bond of Mrs. Phillips for a valuable consideration, it must prevail against the wife, even though she survived her husband. It is, however, contended that it was not an assignment, but a pledge. Undoubtedly, a pledge is insufficient to bar the wife's right, for it is no reduction into possession of her title. The instrument now before us is an assignment, not a pledge. It contains all the operative words fit and necessary to pass the title. It needs but one more witness to make it a legal assign- ment under the Act of 28th of May, 1715, such as to enable an assignee to sue in his own name. That it passed the bond to Graham as a security collateral to the obligation expressed in the instrument makes the transaction no less an assignment. The title was in the assignee, defeasible on the performance of a condition subsequent, to wit, the payment of the debt. That the existence of such a condition subsequent does not prevent the title from vesting in the assignee is the result of all the authorities, so far as I know, without exception. The case of Hartman v. Dowdel, 1 Rawle, 279, relied upon by the plaintiff in error, in truth, Asserts no other doctrine. Chief Justice Gibson, the author of the opinion, in speaking of it in Siter's case, remarks that : " However the opinion of the Court may have been expressed, it certainly was intended to rule the case expressly on the distinction between a voluntary assignment and one for value." There the consideration for the equitable assignment was not, as here, an advance of money at the time, but a pre-existing debt, which had been held in Petrie v. Clark, 11 S. & R. 377, not to be a valuable consideration. Bates V. Dandy, 2 Atk. 207, a case fully recognized in this State as of fundamental authority, was itself but an agreement to assign the wife's chose in action as a collateral security for a present loan of money, yet it was decreed to prevail against the wife. A mortgage is only a collateral security, yet it passes 9 130 ILLUSTRATIVE CASES the title. This is universally conceded : 2 Kent Com. 581 ; Addison on Contracts, 318 ; Storj's Eq. 1030. If, then, the assignment of George M. Phillips convej-ed to .Graham the title to the chose, as we have seen that it did, and was for a valuable consideration, the Court below correctly instructed the jury that it defeated Mrs, Phillips's right of survivorship. As was said in Woelper's Appeal, 2 Barr, 71, it is the hus- band's assumption of title, and nob the form of the act by which it is indicated, which is the criterion. An actual use of the wife's chose in action for his own purposes works a transfer of her ownership. The second error assigned is that the Court refused to charge the jury "that the facts as proved established that the transac- tion between the executors of John Colwell in taking the bond in the name of the wife and the release of the husband was an appropriation by him of the fund to the separate use of the wife, and took from the husband the right to dispose of it either absolutely or conditionally." Conceding now that it was a question for the Court, and not for the jury, what were the facts proved? There was no direct evidence that Phillips consented that the bond should be taken in the name of the executors for the use of the wife, and. when he received it it was endorsed for his use as W'ell as for that of Mrs. Phillips. He merely united with her iii a release to the executors. To hold that these acts constituted au appropria- tion to the sole and separate use-*f the wife woul4 be giving to them an effect far beyond what equity has ev^r allowed. While no particular language is indispensable, yet the claim of the wife to a separate use being against common Tight, the instrument under which it is made must clearly speak the donor's intention to har the husband's marital rights, or it cannot be allowed : 01an«y, 262. The only remainin'^ error assigned is to the charge of the Court relative to the'^ knowledge of the defendant«.t.hat the bond had been assigned -wheti he paid it to Mrs. Phillips, the cestui que use. The evi^dehce showed that at the -time when payment was made he aSked where the bond waB,iand was told by Mrs. Phillips- that she did not know, and ...ihat he re- ceived indemnity and -took a receipt. The CouPt iastructed IN DOMESTIC RELATIONS. 131 the jury that " if it was paid under circumstances which ought to have put a man of ordinarj' caution and prudence upon in- quiry which would enable him to ascertain the truth, then such payment would not defeat a recovery by the assignee." Why was not this proper instruction ? Payment to an equit- able assignee is certainly a good payment. And after notice that there is such a holder, payment to the legal holder is miavailing to discharge the debt. This is conceded. But why is this so ? Because it is inequitable that a debtor should pay to one who, in equity, is not entitled to receive, when he knows that such payment is injurious to another. In equity, the as- signment has the same force as if it had been legally made. The reason why a debtor is discharged by payment to the as- signor, without notice of such assignment, is that he has been guilty of no wanton or heedless disregard of the rights of an- other. But when he has reason to believe that another has become the owner of the chose, and, uninfluenced by that belief, makes payment to the original creditor, he cannot aver that he has been guiltless. In accordance with this view, it was said by Thompson, C. J., in Anderson v. Van Alen, 12 Johns. 343 : " It is a well-settled principle that courts of law will notice the assignment of a chose in action, and protect the interest of a cestui que trust, against any person who has notice of the trust ; and it seems also to be pretty well settled that actual notice is not necessary. If a person acts in the face of facts and circum- stances which were sufficient to put him upon inquiry, he acts contrary to good faith and at his peril." This is also the doc- trine of Johnson v. Bloodgood, 1 Johns. Ca. 51 ; and our own Court, in Guthrie v. Bashline, 1 Casey, 81, ruled that it was not necessary that direct notice of the assignment of a judgment be given by the assignee or his agent. It is sufficient if the in- formation be given under circumstances and in terms to arrest the attention of the debtor. The charge of the Court below was, therefore, unexception- able, and the judgment must be affirmed. Judgment affirmed. Sch. 8. 83 ; 2 Kent, Com. 135 ; Scawens v. Blunt, 7 Ves. Jun. 294 ; Needles v. Needles, 9 Ohio St. 432 ; Burleigh v. Coffin, 2 Post. 118. 132 ILLUSTRATIVE CASES Modified by Equity. When a married woman contracts a debt on the credit or for the benefit of her separate estate, there is an implied agreement springing from the nature of the consideration which the Court will enforce. Manhattan B. & M. Co. v. Thompson. New York Court of Appeal, 1874. 58 N. Y. 80. Church, C. J. As no opinion was delivered below, we cannot know the grounds upon which the Court affirmed the judgment. The case, in some of its facts, is unlike many of its predecessors, where the liability of married women, upon contracts made by them, was involved. The general principles applicable to this subject have been too firmly settled by repeated adjudications to justify a reconsideration of the grounds upon which they were arrived at. The most important of these principles is, that the statutes of 1848-49 and 1860-62 did not operate to remove the general disability of married women to bind them- selves by their contracts, not even to the extent of their separate estates : 18 N. Y. 265. This made it necessary to define spe- cifically in what cases and under what circumstances such con- tracts could or ought to be enforced against their separate prop- erty, and the difficulty of accomplishing this purpose has led to most of the litigation on the subject. It has been held that such liability may be enforced : — Ist. When created in or about carrying on a trade or busi- ness of the wife : 35 Barb. 78 ; Frecking v. Rolland, 53 N.- Y. 422. 2d. "When the contract relates to or is made for the benefit of the separate estate : 36 K Y. 600 ; 37 Id. 35. 3d. When the intention to charge the separate estate is expressed in the instrument or contract by which the liability is created : 18 K Y. 265 ; 22 Id. 450 ; Maxou v. Scott, Court of Appeals, not reported. IN DOMESTIC RELATIONS. 133 The property purchased was merchandise, to be used in the manufacture and sale of atmospheric oil-lamps. The defendant's husband applied to the plaintiff to purchase the goods, and rep- resented that he was " under a cloud" in his pecuniary affairs, but that his wife had a large separate estate, and that she would make the purchases. After inquiry by the plaintiff as to the responsibility of the defendant, it agreed to sell her the goods on credit. She thereupon signed and delivered to her husband, who delivered the same to the plaintiff, a writing, stating in substance that her husband was authorized to contract for her and in her name with the plaintiff for the goods in question, and that she would be responsible for the fulfilment of any contract made by him therefor. The goods were accordingly delivered from time to time to the defendant's husband and charged to the defendant, and the note upon which the action was brought was given for a portion of the goods thus deliv- ered. The referee found, as a fact, that the business was carried on by the husband and not by the wife, and that the goods were sold to the wife and delivered to the husband for his use in his business, and that her estate was not benefited by it. The conclusion of law, that the defendant was not liable, must have been arrived at upon the ground that the obligation of the wife was in the nature of a guarantee or surety for her husband, and that as no intention was expressed to charge her estate, the doctrine of disability applied. The facts developed at the trial, and found by the referee, present a strong case of moral liability against the defendant for the payment of this debt. There is no doubt that the plaintiff parted with its prop- erty relying entirely upon the security of the separate estate of the defendant, which its officers believed, and had reason to believe, was liable to pay the debt, and I have examined the case with some care to find a principle vvithin the adjudications which would justify a decision adjudging such liability, but have been unable to do it. It cannot be predicated upon the third o-round above stated, because the separate estate was not charged either in the note or the original order for the goods, but it is claimed under each of the other grounds. Was it a contract relating to, or for the benefit of, the estate of the defen- dant ? The finding of the referee is important upon this point. 134 ILLUSTRATIVE CASES lie found that the goods were delivered to the husband for his use, and were used by him. Is a married woman liable for property or money obtained upon her credit and contract, deliv- ered or paid to the husband for his use, and which is used by him and not for the benefit of her estate ? I think we are con- strained to answer this question in the negative by previous adjudications. White v. McNett, 33 K Y. 371, went much farther than this, and farther than, as an original question, I should be willing to go. There the husband and wife trans- ferred a bond and mortgage owned by the wife, with a guaran- tee of collection signed by both husband and wife, and because the consideration for the transfer was paid to the husband and was not in fact applied to the benefit of the separate estate, it was held by a majority of the Court that she was not liable upon the guarantee. In that case, the wife owned the property transferred, and the contract might properly have been held to relate to it, while here the goods, although purchased upon her credit, passed direct!}' from the seller to the husband for his use. Whatever may be said of the technical title, the property was never possessed for an instant by the wife, and never in legal contemplation applied to the benefit of her estate. Indeed, if we apply the established principle of giving the report the most favorable construction to sustain the judgment, it must be held that the delivery to the husband for his use by the seller was in accordance with the understanding and arrangement of the parties. It cannot be said that the contract related to any estate she then held, nor, in view of the findings, was it for the benefit of such estate. It was for the benefit of her husband. She purchased property to be delivered to him for his use. In no legal sense was her separate property benefited under such an arrangement, nor could it be, and adhering as the Courts have to the common-law disabilities of the wife, it must be held that the liability cannot be established under the second ground above stated. If, when the Legislature changed the common law in essential particulars in regarding the interests in prop- erty of the husband and wife to a considerable extent as distinct and independent, and in recognizing the capacity of the wife to judge and provide for what her own welfare requires in acquir- ing and holding the legal title to property, and managing and IN DOMESTIC RELATIONS. 135 disposing of the same as if unmarried and without Bubjection to the control of her husband, the Courts had adopted, as a rea- sonable and legitimate sequence, the correlative rule of capacity to contract debts as if unmarried, restricted only to their col- lection from separate property, it might well be claimed that the rights of married women would have been as well, if not better, protected practically, sound public policy and business morality more promoted, and a flood of expensive and vexatious litigation prevented. ' Gourts of equity in England have uniformly exercised a power of enforcing contracts of married women against their separate estates, which has practifally produced this result: 2 P. Wms. 144 ; 1 Or. & Ph. 48. But our Courts have adopted more conservative principles, and it is better to adhere to them until the Legislature in its wisdom and power shall see fit to change them. As to the first ground of liability, that the contract was made in or about carrying on a trade or business, the insuper- able difficulty is that the referee has expressly found that the wife did not carry on any trade or business, but that the hus- band did, and that the property was purchased for his and not her business. Looking at the evidence, it may be said that the business was , carried on in an equivocal manner as to ownership, but the facts fully warranted the finding that the husband owned and carried it on. We therefore see no legal ground for reversing the judgment, and it must be affirmed. Allen, Folgbr, and Andrews, JJ., concur. Grover, Rapallo, and Johnson, JJ., dissenting. Judgment affirmed. Brown Dom. Eel. p. 45 ; Sch. s. 136-141 ; Sch. H. & W. s. 246 ; 2 Kent, 111-164 ; Sohnyder «. Noble, 94 Pa. St. 286. 136 ILLUS'IRAIIVE CASES Modified by Modern Statutes. By the statutes of most of the States to-day, a mar- ried woman enjoys all the privileges of a feme «ole as respects her property, subject to the restraints over real property. 4 New York Revised Statutes, pp. 2600, 2606 ; Minn. Gen. Stat. 1878, c. 69. (e) Effect on the wife's chattels real and real estate. Marriage operates upon the chattels real of the wife as an execution gift. Little v. Marsh. Supreme Court of North Carolina, 1841. 2 Ired. Eq. 18. This was an appeal from an interlocutory decree of the Court of Equity of Anson County, his honor. Judge Pearson, presid- ing. The complainant, Alexander Little, filed his bill against Solomon Marsh, at the Spring Term, 1841, of Anson Court of Equity. In this bill the complainant al leged that at March Term, 1838, of Anson Superior Court of Law, a number of judgments were obtained against one William Ashcraft, of the County of Anson, of the several suits of Eichard Kingsland & Co., and others (particularly mentioning them) amounting to upwards of eight thousand dollars ; that executions issued on the said judgments returnable to September Term, 1838, of the said Superior Court ; and that the sheriff of Anson County levied the said executions on the following negro slaves, as the property of the said James Ashcraft, viz. : Clarissa and her five children, Sanford, Matilda, George, Ann, and Harriet; and that the said sheriff did, on the 12th day of September, 1838, sell said negroes at the court-house door, in the town of Wades- borough, to satisfy said several judgments ; and that the com- IN DOMESTIC RELATIONS. 137 plainant became the last and highest bidder for the sum of one thousand four hundred and fifty -five dollars. The complainant further charged that the defendant in the said executions, viz. : the said James Ashcraft, married the daughter of the defendant, Solomon Marsh, several years ago ; and that upon the marriage of the said James Ashcraft with the daughter of this defendant, or in a short time thereafter, the defendant gave the said woman Clarissa, who was at the time a small girl, and who is the mother of the said Sanford, Matilda, George, Ann, and Harriet, that were sold by the sherifi" as aforesaid, to the said James Ashcraft or his wife, and executed and delivered a deed of gift or bill of sale, or some other instrument of writing, whereby the defendant, Solomon Marsh, conveyed all his interest and title in said negro girl Clarissa unto the said James Ashcraft or his wife ; and that said negro girl Clarissa remained in the possession of the said James Ashcraft for fifteen or twenty years, during which time she had the five children before mentioned ; and that the said James Ashcraft continued in the possession of the said negro slaves, exercising all acts of ownership over them, paying taxes for them, and receiving credit in part on account of his interest and property in said slaves, until the said James Ashcraft be- came embarrassed in his circumstances, and until a short time before the levy and sale were made by the sherifi:' as aforesaid, when the said James Ashcraft and the defendant, combining and confederating together how to injure and defraud the cred- itors of the said James Ashcraft, came to an understanding and agreement of some kind, whereby the said James Ashcraft surrendered up the possession of the said negroes to the de- fendant, Solomon Marsh, and at the same time surrendered up and delivered over to the said Solomon Marsh the deed of gift or bill of sale for the said Clarissa, the mother of the said chil- dren, which bill of sale or deed of gift the complainant charged had never been recorded. The complainant further set forth, that the said James Ash- craft resided in the immediate neighborhood of the defendant ever since the marriage of the said James with his daughter, and that it was generally understood and believed in the neigh- borhood that the said slave Clarissa and her said children were 138 ^ ILLUSTRATIVE CASES the property of the said James Ashcraft ; and that the said Solomon Marsh never pretended to claim the said negro slaves from the time he gave them to the said Ashcraft until about the time the said executions were levied by the sherifi" as afore- said on. said slaves ; and that, so far from xilaiming the said slaves as his, the defendant's own property, the complainant was informed and believed that the defendant did, on some occasion, when inquiry was made of him as to the title to said slaves, say that he expected the title to ; them was in one Joseph White, inasmuch as said White was security for the said Ashcraft, and he expected that the said White had taken a deed of trust for said negroes to save him harmless, or words to that effect. The complainant further charged, that after the levy made by the sheriff", and before the day of sale, the complainant,. upon learning that the defendant pretended to cMm the said slaves, proposed to'the defendant that if he, the defendant, would show to the complainant the deed of gift or bill of sale which the defendant had executed to the said James Ashcraft or his wife, for said slaves, then, in case the writing did not convey the title to the said Ashcraft or any title liable to execution for debts of said Ashcraft, the complainant would release the levy so far as he was concerned in the executions against said Ashcraft ; but that the defendant refused to do so or to give the complainant any satisfaction in any manner as to the same. The complainant further set forth that he, together with Robert Strange and Thomas S. Ashe, Esquires, were counsel and attorney for the plaintiffs in the executions against Ash- craft, and that they jointly gave the sheriff a bond of indemnity to sell the said slaves, and that the sheriff" did sell the said slaves, and that the complainant became the purchaser for the sum of $1455, and took and now has the said slaves in his pos- session. The complainant further set forth that the defendant was present at the sale, and forbid the same ; but the com- plainant was informed, and was informed so on the day of sale, that the defendant had procured one Jesse Llewellen, a man of property, and a friend and neighbor of the defendant (who is now dead), to bid off the said slaves for him, the said Solomon IN DOMESTIC RELATIONS. 139 Marsh, and that in consequence thereof the said Llevvellen did bid several times for the said negroes or some of them. The complainant further set forth that the said Solomon had since sued the complainant at law in an action of trespass vi et armis, claiming said slaves as his own and seeking to recover damages of the complainant for wrongfully selling the same. The com- plainant further charged, that although the defendant Solomon ^larsh did actually make, sign, seal, and deliver a deed of gift or bill of sale for said girl Clarissa to the said James Ashcraft or to his wife, yet that the said deed of gift or bill of sale never was recorded as required by law, and that the complainant was unable to avail himself of the benefit of his defence in a Court of law for want of the said recording, of the said deed of gift or bill of sale. The complainant, then, after asking that the defendant might be required to answer on oath particularly and specifically all the matters charged in this bill, prayed that the said defendant might be compelled by a decree of the Court to have the deed of convej'ance made by the defendant to the said Ashcraft surrendered up to be recorded, or that he might be compelled to convey all his title and interest in said negro slaves to the complainant, and that he should be perpetually enjoined from his action at law against the complainant ; and that the complainant should receive such other and further relief as to the Court should seem meet. This bill of complaint was sworn to in due form. At the same term the defendant put in his answer. In this answer he admitted that he had understood there were several judgments obtained against James Ashcraft about the time charged in the bill — but the amount thereof, or by whom, the defendant did not know, nor did he recollect at what particular term of Anson Court ; and he supposed, but did not know, that execu- tions issued on the said judgments. He also admitted that James Ashcraft, several years ago, married his daughter Eunice, and resides within a few miles of the defendant, in Anson. The defendant, for further answer, stated, that after the said James Ashcraft was married, and, he thought after he had two children, and his wife was in much need of a nurse, the defendant, being the owner of a negro girl named Clarissa, then some ten or twelve years old, placed the girl with the 140 ILLUSTRATIVE CASES defendant's said daughter, to assist her in taking care of her children, and intending for his said daughter to have the ser- vices of the said Clarissa to her separate use, and for the said slave and her increase to be enjoyed by the children of the said Eunice ; and to carry out this intention, some time thereafter, the defendant could not now state how long, he executed a paper writing to that effect, which he handed to his said daughter, therein couveying and securing the said slave, Cla- rissa, to the separate use of his said daughter, he thought, for life, and after her death to her children equally ; this paper writing was never delivered to James Ashcraft at all, nor in his possession, as this defendant believed, and he knew it was not intended that said Ashcraft should take any benefit under it ; and defendant handed this paper writing to his daughter, Eunice, he thought, about twelve or thirteen years ago ; the defendant could not recollect the precise time, but he believed said paper was signed and handed to her about that time ; and she retained the possession of it until about the mouth of January' or February, 1837, according to the best of the de- fendant's recollection, at which time the said Eunice handed back the said paper writing to the defendant, upon application. And the cause of the defendant's so applying to his daughter for it, was that it was understood among the said slaves (to wit, Clarissa and her children) that the said Ashcraft was going to convey off to Mississippi all his own negroes, and he then had five valuable ones ; and it was believed that, in doing so, he would also run off privately with them Clarissa and her children, and thereby Eunice and her children would be defeated of their claim to the property altogether ; and to pre- vent this, the defendant took back said paper writing, which (as he thought) was destroyed. He averred that he had it not in his possession, and was not able to produce it, which he cer- tainly would readily do had he the said paper to produce; for it was no intention whatever of defeating any of Ashcraft's creditors, which caused the defendant to take back the said paper writing ; for the slave, Clarissa, and her children, were never liable, directly nor indirectly, for Ashcraft's debts, by the said paper writing, which the defendant delivered to his daughter as aforesaid, and the defendant further averred, that IN DOMESTIC RELATIONS. 141 at the time he took back from his daughter the said paper writing, the said Ashcraft had five or more valuable negroes of his own, a considerable store of goods, and much other valuable property, and, the defendant believed, more than sufficient to have paid all his debts, if the same had been prudently man- aged. The defendant further stated, that some time therea'fter Clarissa and her children, under apprehension of being sent off to the South with Ashcraft's own slaves, as the defendant understood and believed, ran away of their own accord and came to the defendant's house, where they remained till seized by the sheriff of Anson County, and taken off and sold, as charged in the bill. And the defendant further stated, that the said Ashcraft did send off his own slaves to the South, and they have never returned, as the defendant understood and believed. The defendant, further averring, stated that Ash- craft, when he married the defendant's daughter, had but very little property, if any, besides a horse, and, aided by his father, he procured a tract of land ; and the defendant had but very few slaves indeed, and was altogether unwilling to make title to a slave to him, and opposed to putting one in his power or under his absolute control, though the defendant was willing and desirous to assist his daughter in taking care of and nurs- ing her children, and his whole object was to secure the services of the slave, Clarissa, to the separate use of his daughter, and for the said slave and increase to goto his daughter's children ; and the said paper writing, which he signed and handed to his daughter, as aforesaid, was to that effect, and so expressed upon the face of it, to the best of the defendant's recollection and belief; and the said slave, Clarissa, was not to be subject to the debts, disposition, or control of the said Ashcraft. The defendant, further answering, admitted that the slave, Clarissa, was permitted to remain at the house of the said Ashcraft, from the time she first went there, as aforesaid, until she ran away, as before stated, with her children, and came to the defendant, and during the time that she remained at Ashcraft's, said Clarissa had four of the children stated in the bill ; and defendant said he thought it likely said Ashcraft might have paid taxes for the said Clarissa, but he did not know; and thought it most probable that said Ashcraft exer- 142 ILLUSTRATIVE CASES cised some control over Clarissa and her children while at his house, for such was to be expected ; but the defendant did not admit that said Ashcraft ever obtained any credit on account of having said slaves at his house, for no person ever could have relied, with any certainty, or had any assurance that said Ash- craft had any title or held any interest in said slave Clarissa and her children, for he never had any title or interest in or to said Clarissa and children. And the defendant denied that there ever was any combination or understanding between said Ashcraft and himself in regard to taking said Clarissa and her children back as charged in the bill ; and so far from it, the defendant stated that a misunderstanding and unfriendly feel- ing existed between the said Ashcraft and himself, from the time he first set up merchandize in Anson until the present time, and the said Ashcraft had never been at the defendant's house on a visit since ; and although he kept store for some years, the want of friendship was such that the defendant never traded nor bought goods at his store. And the defen- dant denied that the said slaves, Clarissa and children, and the said paper writing were surrendered up to him by said Ash- craft as charged in the bill, but alleged, on the contrary, that the said slaves left Ashcraft's house in the night time, and Ashcraft was much displeased thereat, and came to the defen- dant's and said that he (Aschcraft) knew nothing of it, as the defendant had heard and believed ; and the said paper writing was handed back by the said Eunice, as before stated, without the knowledge of the said Ashcraft, and the defendant ad- mitted that the said paper writing was not recorded before it was destroyed, as aforesaid. The defendant denied that he ever informed any person, to his knowledge or belief, that the title to said Clarissa and children was in Joseph "White, or any other person, nor does he recollect that he ever mentioned to any person that the title of the said slaves was in his daughter, or any other person, to the best of his recollection and belief, or say any thing upon the subject, or that the subject was ever talked about. The defendant admitted that the complainant applied to know about, or to see the title, to Clarissa and chil- dren the day of the sale, and the defendant assured him that said Aschcraft never had a title of any kind to said slaves, and IN DOMESTIC RELATIONS. 143 that. his daughter had none then ; he also admitted that Clarissa and her children were sold by the Sheriff of Anson, at Wades- borough, some seventeen miles from the defendant's residence, and were j>urchased by the complainant at $1455, or there- abouts, as charged. The defendant also admitted that he was present at the sale of the said slaves, and forbid the sale thereof, as he believed he had the right to do ; but he denied most expressly that he employed Jesse Llewellen, or any other person, directly or indirectl}', to bid for said slaves for him or any other person. The defendant admitted that ho had since sued the complainant for the said slaves, Clarissa and children, and that suit was now pending in Anson Superior Court of law. The defendant, further answering, averred that he fully believed that the whole cause of the said negroes coming into his possession was to avoid being sent off, and that was his entire object in taking up the paper writing, before alluded to, from his daughter, and not on account of any embarrassment under which the said Ashcraftwas then laboring^ or with which he was theatened, for the defendant, in fact, knew but little about his circumstances, but knew he had much property, and fully believed him good for all his debts, and still believed he was ; but the defendant's entire object was to prevent the said slaves from being sent off from the State, and his daughter and children being deprived of their just rights, for the defendant never expected that said Clarissa and children would be made, or be attempted to be made, liable for Ashcraft's debts. He further stated four of Clarissa's children were born, as he be- lieved, while she was at Ashcraft's house, and one, named Harriet, was born at the defendant's house after her return to him. This answer was duly sworn to. At this term a motion was made for an injunction to stay proceedings in the suit at law, which was refused by the Court. At the Fall Term, 1841, the following interlocutory decree was made : " On motion and argument, and it appearing to the Court that since the last Term a judgment has been obtained at law in an action of trespass by the defendant against the plain- tiff for the sum of and upon consideration of the 144 ILLUSTRATIVE CASES ~ bill and answer, it is ordered, adjudged, and decreed that the defendant be enjoined from taking out any execution upon his judgment at law until the further order of this Court." From this interlocutory decree the defendant prayed an appeal, which was allowed upon condition that the defendant should not in the meantime take out any execution upon his judgment at law, but await the decision of the question in the Supreme Court. Winston and Mendenhall, for the defendant, contended that a parent may put negroes in possession of his child, and suffer them to remain during his life, and they are not on account of such possession liable to creditors ; for a title from a parent to a child can only pass by deed ; that the plaintiff had notice that Ashcraft had no title, and therefore could not complain : Parker v. Brook, 9 Ves. 582 ; that a wife can assert her right under a direct gift to her, for her separate use, against any purchaser who has notice: 3 Bro. Ch. R. 381, Kirk v. Paulin, 7 Vin. Ab. 95, s. 43 ; Bennett v. Davis, 2 P. W. 816. That where there is a gift from a father to a married daughter, a presumption arises that it is for her separate use : Graham v. Londonderry, 3 Atk. 393. Strange, for the plaintiff, insisted that if an injunction had been granted, the defendant would not have entitled himself by his answer to have it dissolved, because he showed he had parted with all his title ; therefore he could not oppose the granting of the injunction ; that there being no trustee, even admitting all the defendant said to be true, the legal title still passed to the husband, whether burdened with a trust or not was immaterial, as the trust, if there was one, might be enforced against the purchases ; that the defendant's answer exhibited so much doubt, prevarication, fraud, and corruption that the Court ought to grant the injunction ; that the deed, ought to be produced, or its loss fully proved ; that the words used in the deed should be particularly set forth that the Court might see whether it created a separate estate in the wife. See Rudi- sil V. "Watson, 2 Dev. 431 ; that a gift of personal property is 'prima facie absolute, and that when deeds are suppressed all IN DOMESTIC RELATIONS. 145 things are presumed against the spoliator; Grounds and Rudi- ments of Equity, 146, 148 ; 1 Ch. Ca. 291 ; 1 Vern. 2o7. Daniel, J. If the paper writing in this case was witnessed, which the answer does not deny, it passed the title of the slave from the donor by force of the Act of 1806 (Rev. St. c. 37, s. 17), except that the ceremony of registration was required to give it full efi'ect; and this title enured to the husband, at least for life (as remainders in slaves created by deed or writing after a life estate are good: Rev. St. c. 37, a. 22), unless the husband dissented therefrom ; and his possession for twelve years is evidence that he did assent : 1 Prest. Touch. 142. If a bond, note, or bill be given to the wife, or to the husband and wife during coverture, the legal title vests in the husband on his assent, and he may sue alone, or he may elect to join his wife : 2 Leigh's E". P. 1109, and the authorities there cited. The husband being entitled to the instrument, could have had it proved and registered under the Acts of Assembly giving fur- ther time for registering deeds, writing, etc., and then the hus- band's inchoate title would have been complete, at least for his life. The wife had no power to redeliver the paper writing to the donor. But it is said, if the facts were so, Ashcraft would still have been but a trustee for the separate use of his wife and children, and the slaves would not have been liable to be taken in execution for his debts. If there was no doubt left upon the mind of the Court that the paper writing contained that which the defendant in his answer says it contained, and contained that, so expressed as to deprive the husband of any beneficial interest in the slave conveyed, we should cer- tainly hold that the plaintiiF was not entitled to the interfer- ence of a Court of Equity in his behalf. But the question in this case is whether Ashcraft took as a trustee or in his own right. And the answer of the defendant appears to us to be illusory, and to want frankness, candor, and precision. The ■ defendant admits that he took back the paper in 1837. If it were such as he states it, it might operate materially against the plaintiff or the creditors of Ashcraft. There was a strong inducement, therefore, for him to preserve the paper, if it was written as he would have us to suppose. But although he 10 146 ILLUSTRATIVE CASES speaks with some degree of positiveness as to his intent in executing the instrument, he is vague and uncertain as to the language of the instrument, which declares that intent. He describes it as having been made "to that effect," and "he thinks" it was to her separate use for life, and afterwards to her children. His answer is equally unsatisfactory as to the destruction of the instrument. His words are, " he thinks it is destroyed," " he has it not in his possession," etc. Spoliation is always looked upon by a Court of Justice with suspicion. The defendant, to be sure, was not interrogated by the bill (as he yet may be), whether there was a subscribing witness, and who he was, nor in whose hands the defendant placed the paper after he got it back in 1837. He, however, is particularly cau- tious in not giving us any information on these points. Under all the circumstances, we think the Judge was right in directing an injunction until the hearing. This opinion must be certified to the Court of Equity of Anson County, with instructions to proceed according to the same ; and judgment must be entered for the plaintiff for the costs of this Court. Per Curiam. Ordered and decreed accordingly. Sch. s. 87, 88 ; 2 Kent, 134 ; 2 Leigh, 1109 ; Estate of Hinds, 5 "Wliart. 138 ; Gavforth v. Bradley, 2 Ves. Sen. 675 ; Schuyler v. Hoyle, 5 John. c. 196 ; Cart. v. Taylor, 10 Ves. Jun. 578. By marriage at common law, the husband acquired complete ownership of all the usufruct of all the real estate the wife owned at the time of marriage or ac- quired subsequently. Shaw v. Partridse. Supreme Court of Vermont, 1845. 17 Vt. 626. Hebard, J. This action is based upon a lease from William L. Harrington to the defendant, dated April 1, 1820, which IN DOMESTIC RELATIONS. 147 lease contains a covenant on the part of the defendant to pay to the said Harrington, his heirs, or assigns, a yearly rent. On the first day of November, 1828, the said Harrington as- signed this indenture, and all his interest in the premises, to Jabez Penuiman as administrator of the estate of George Y. Harrington. This interest was, by the Probate Court, on the first day of January, 1839, set off to the widow of the said George Y. Harrington, as part of her dower in his estate. Afterwards the said Moody intermarried with the widow, and, after suit brought, but before trial, he deceased. To the action the defendant has pleaded several pleas in bar, some of which were traversed, and the others demurred to. Upon these pleas several questions are presented. And the first is, whether this suit can progress, after the decease of Moody, in the name of his administrator. By the marriage Moody became possessed of whatever interest his wife had in the premises ; and the rent, that became due in his life- time, was his, and subject to his control. This rent having accrued during coverture, it was- not necessary to join his wife in the suit, and it does not survive to the wife. The result would be, that, if the husband, in his lifetime, had not com- menced the suit, after his decease this rent, which accrued in his lifetime and during coverture, would be assets in the hands of the administrator and must be collected by him. It is farther objected to the plaintiff's right of recovery, that there is no such privity of contract between the parties as gave Moody any right to recover, — on the ground that the defendant, before this rent had accrued, had transferred and assigned all his interest in the lease and the premises to another person. This objection would as well lie, if the action had been brought by Harrington, the lessor, as when brought by an assignee of the lessor; and this must depend upon the covenant. The plea upon which this question arises, and to which there is a demurrer, alleges that, before any of this rent accrued, the defendant set over and assigned all his interest in the premises to one Blood, who entered and took possession of the same ; and that afterwards the said Moody received of said Blood one year's rent, and then and there accepted said Blood as the only true and proper tenant of the premises. All that may be true, 148 ILLUSTRATIVE CASES and not discharge the defendant from his covenant. If the action had been debt, instead of covenant broken, it would be different. When the landlord leases the premises, he takes into consid- eration the fitness and responsibility of the lessee. The lessee assigns the premises to whom he pleases ; the landlord has nothing to do in selecting the under-tenant. But it is a com- mon principle of law, that, when a man enters into an express covenant to pay rent, that covenant continues binding upon him notwithstanding he have assigned the lease. The same rule of law that would thus relieve him from his liability on his covenant, would absolve him from any liability upon his promise to pay a stipulated sum for the purchase of property, if he should see fit to divest himself of that property before the promise was enforced. This point is fully established in the case of Auriol v. Mills, 4 T. E. 94. This is a strong case and establishes more than is necessary in the present case. There the lessee had been dispossessed of the demised premises before the rent became due by the -operation of law and the acts of other persons. In the case at bar the defendant, by his own deed, assigned the premises to Blood voluntarily. The main question remains to be considered ; and that is, whether Adelia A. Harrington, the widow of George Y. Har- rington, was legally the assignee of the lessor, so that she or any other person in her right, could maintain this action. The objection to this is, that the decree of the probate Court was inoperative and gave her no interest in the premises. It is not pretended, but what here was such an interest in land as would make it the subject of such a decree, if this interest was legally in the estate of the said George Y. Harrington. This was a durable lease and William L. Harrington had an assignable interest in the estate, and, by his deed in the usual form, assigned all his interest in the premises to Jabez Penniman, as administrator of the estate of George Y. Harrington, to hold in his capacity of administrator. The inquiry may naturally arise here, — in what other way could this interest have been assigned so as to have vested it in the estate of George Y. Harrington ? If it had been assio-ned to the estate in terms, it would have been void. There beino- IN DOMESTIC RELATIONS. 149 no other depositary appointed by law, the administrator was the proper person for this purpose to receive the title for the time being. lie is, pro hae vice, the representative of the de- ceased, and, with reference to the property, stands in his place. If, then, this interest was held by Peuniman in his capacity of administrator, it was held by him in the same manner and for the same purpose that the other property of the estate was held, and subject to the same orders of the Probate Court. When it was thus assigned to the administrator it became, by operation of law, the property of the estate, or, more properly speaking, a part of the estate of George Y. Harrington ; and, by virtue of the decree of the Probate Court, it became the property of Adelia Harrington. This was a covenant that run with the land ; and, as the interest in the land passed, it carried the covenant along with it ; so that there was the same privity of contract and privity of estate between the parties that there would have been if the assignment had been made to George Y. Harrington in his lifetime, and had then passed to his widow by the decree of the Probate Court, as in the present instance. This also disposes of the question of variance ; for, with this view of the case, the plaintiff declared, at least, according to the legal effect of the assignment. Judgment affirmed. Sch. s. 89 ; 2 Kent, 131 ; Perkins v. Cottrell, 15 Barb. 446 ; Litchfield v. Cudworth, 15 Pick. 23 ; Barber v. Boot, 10 Mass. 260. 150 ILLUSTRATIVE CASES This matter is all now regulated by statute, and to- day in Minnesota marriage places no restraint on the wife's disposition of her property other than found in s. 4 «& 5, c. 69, Gen. St. 1878. Yager v. Merklb. Supreme Court of Minnesota, 1880. 26 Minn. 429. Berry, J. On March 19, 1872, Henrietta Hemerick exe- cuted, acknowledged, and delivered to the defendant a mort- gage upon certain real estate, of which she was owner in fee simple. She was a married woman, living with her husband, but he did not join in with her in the mortgage. The mort- gage was not given to secure purchase-money of the mort- gaged land. It was duly recorded. On May 17, 1878, the said Henrietta, her husband joining, sold and duly conveyed the land to the plaintiff", who brings this action to prevent a threatened and pending foreclosure of the mortgage, and to remove the cloud created by it upon his title. The statute in force at the time of the execution of the mortgage : Laws 1869, c. 56 (Gen. St. 1878, c. 69), provides in section 2, " that no conveyance or contract for the sale of real estate, or of any interest therein, by a married woman, other than mortgages on lands to secure the purchase-money of such lands, and leases for terms not exceeding three years, shall be valid, unless her husband shall join with her in such conveyance," with a sav- ing not here important. There is no doubt that under this statute the mortgage involved in this case is void. The prin- cipal fact which makes it void, to wit, that the person execut- ing it is a married woman, does not appear upon the face of the mortgage or of its record. But to avoid the mortgage this fact must be shown by extrinsic evidence. The mortgage is therefore a cloud upon the plaintiff' 's title in the sense in which that term is used in equity. The mortgage being void under the statute, and a cloud upon plaintiff"'s title, he is IN DOMESTIC RELATIONS. 151 clearly entitled to have the foreclosure proceedings stopped and the mortgage declared void. The order sustaining the plaintiff's demurrer to defendant's answer is affirmed. Place V. Johnson, 20 Minn. 219 ; Tidd v. Rlnes, 26 Id. 201 ; Dodge v. Hollingshead, 6 Id. 25 ; Annan v. Folsom, 6 Id. 500 ; Merrill v. Nelson, IS Id. 360 ; Minn. Gen. St. 1878, c. 69, s, 2, 4, & 5. B. The wife's separate earnings and power to trade. At the common law, and in equity, the term sepa- rate earnings of the wife was unknown, all the wife's earnings being the husband's. McDavid v. Adams. Supreme Court of Illinois, 1875. 77 111. 155. Scott, J. This was a claim filed against the estate of Joshua H. Wilson, deceased, for the personal services of appellee, rendered to him in his lifetime as his housekeeper. The services for which compensation is sought were rendered prior to the year 1864, during all which time appellee was a married woman, being the wife of Eli Adams, who is still living. While appellee was engaged in the services of the deceased, her husband was temporarily absent in the military service of the United States for nearly all the time. As the law was then, whatever wages the wife earned be- longed to the husband, and the right of action was alone in him. The Act of 1869, which gave a married woman the right to recover for her personal services, had no retroactive operation. It did not and could not have the effect to invest her with the authority to sue for and recover for indebtedness that never accrued to her, but to her husband. It is no answer to this view of the law, to say there is evi- dence in the record tending to show the services of appellee 152 ILLUSTRATIVE CASES were never paid for. As we have seen, tlie right of action was alone in the husband, and his remedy has long since been barred by the Statute of Limitations. The verdict is contrary to the law and the evidence. The judgment will be reversed, and the cause remanded. Judgment reversed. Seitz V. Mitchell, 94 TJ. S. 580 ; Hinman v. Parkis, 33 Conn. 188 ; Skill- man V. Skillman, 15 N. J. Eq. 478. Generally by statute in the United States, and by the English, Married Women Act of 1870, the wife by showing an intention is entitled to all her earnings. BiKKBECK V. ACKROYD. New York Court of Appeals, 1878. 74 N. Y. 356. Andrews, J. By the Act chap. 90 of the Laws of 1860, con- cerning " the rights and liabilities of married women," the common-law doctrine that the husband is entitled to the ser- vices and earnings of his wife, was essentially modified. The Acts of 1848 and 1849 divested the title of the husband, jure mariti, during coverture, to the real and personal property of the wife, and enabled her to take from any person other than her husband and hold to her sole and separate use any property or estate and the rents, issues, and profits thereof, in the same manner as if she were unmarried. Under these statutes it was held that she had, as incident to her right of property, the power of management and control, and that gains arising in the use of her separate estate or from business in which she engaged upon the credit of her separate estate, belonged to her and not to her husband : Knapp v. Smith, 27 K Y. 278 ; Buck- ley V. Wells, 33 Id. 518 ; Draper v. Stouvenel, 35 Id. 507. But the Acts of 1848 and 1849 did not change the rule of the com- mon law giving the husband the right to the services and earn- IN DOMESTIC RELATIONS. 153 iugs of the wife, in cases where she had no separate estate, and where her labor was not connected with the use of her separate property. This state of the law left a wife, who might be dependent upon her own labor for her support and the support of her children, without the legal power to control her earnings, and they were subject, as they were before these Acts were passed, to be appropriated by the husband. The hardship of this in cases where the husband was unable or unwilling to support his family, or was idle or dissolute, was apparent. The Act of 1860 remedied this defect in the prior laws. By the second section a married woman is authorized " to cai'Vy on any trade or business, and perform any labor or services, on her sole and separate account." The section con- fers upon her the capacity of a feme sole, in respect to any business in which she may engage, and empowers her to labor on her own account. But it does not wholij' abrogate the rule of the common law. She may still regard her interests and those of her husband as identical, and allow him to claim and appropriate the fruits of her labor. The bare fact that she per- forms labor for third persons, for which compensation is due, does not necessarily establish that she performed it, under the Act of 1860, upon her separate account. The true construction of the statute is that she may elect to labor on her own account, and thereby entitle herself to her earnings, but in the absence of such an election or of circumstances showing that she intended to avail herself of the privilege and protection conferred by the statute, the husband's common-law right to her earnings remains unafl'ected. This construction is supported by the language of the first section, which defines what shall constitute the sole and separate property of a married woman, and, among other thing's, " that which she acquires by her trade or business, labor or services, carried on or performed on her sole or separate account" and the concluding clause of the second section, which declares that the earnings of any married woman from her trade, business, labor, etc., " shall be her sole and separate property" isto be construed in connection with the preceding section, and as referring to earnings from business or labor conducted or performed on her separate account. When, therefore, the question arises as to the right of a hus- 154 ILLUSTRATIVE CASES band to recover for the labor and services of the wife, it must be determined upon the facts and circumstances of the case. When the labor is performed under a contract with the wife, and by the contract payment is to made to her, the inference would be strong, if not conclusive of her intention to avail her- self of the protection of the statute. So where the wife is liv- ing apart from her husband, or is compelled to labor for her own support, or the conduct or habits of the husband are such as to make it necessary for her protection that she should con- trol the proceeds of her labor, the jury might well infer that her labor was performed on her separate account. But where the husband and wife are living together, and mutually engaged in providing for themselves and their family, — each contribut- ing by his or her labor to the promotion of the common pur- pose, — and there is nothing to indicate an intention on the part of the wife to separate her earnings from those of her husband, her earnings, in that case, belong, we think, as at common law, to the husband, and he may maintain an action in his own right to recover them. Where the wife is engaged in a business, as that of a trader, and it is conducted in her name, there would be no room to question her right to the avails and profits. The duty still rests upon the husband to maintain and support the wife and their children, and it is not necessary, in order to give the wife the protection intended by the statute to hold that, irrespective of her intention, her earnings, in all cases, belong to her and not to the husband, and the language of the Act does not admit of this interpretation. The construction we have given to the statute supports the conclusion of the referee, that the plaintiff was entitled to re- cover the value of his wife's services. She worked with him and their minor children in the mill, under no special contract, BO far as appears, that she should receive the avails of her labor. The family were supported out of the joint earnings of the family, and the wife has never claimed her earnings as her sep- arate property. Under these circumstances, the plaintiff was entitled to recover their value. The same considerations apply to that part of the judgment founded upon the services rendered by the wives of the plain- IN DOMESTIC EELAtlONS. 155 tiflF's sons, the claim for which was assigned by them to the plaintiff. There is no other question in the case requiring special con- sideration. We think the judgment is right and should be affirmed. All concur, except Miller and Earl, JJ., absent. Judgment affirmed. Meriwether v. Smith, 44 Ga. 541-543 ; Martin v. Eobson, 65 111. 129 ; Musgrove v. Musgrove, 54 Id. 186 ; Haas v. Shaw, 91 Ind. 384 ; Brooks v. Schwerin, 54 N. Y. 343 ; Minn. Gen. St. 1876, c. 69. A wife may contract debts to commence as well as to carry on business. Frecking v. Rolland. New York Court of Appeals, 1873. 53 N. Y. 423. Andrews, J. If the defendant signed the note as surety for her husband merely, as the evidence on her part tended to show, the judgment is clearly right: Yale v. Dederer, 18 IT. Y. 265 ; 22 Id. 450. But in determining whether the Court was justified in directing a verdict for the defendant any evi- dence tending to establish her liability for the debt is to be considered, and if the jury would have been authorized, if the case had been submitted to them, to have found a verdict against her, the direction was erroneous. It was not necessary that the plaintiff should have requested the Court to submit the case to the jury in order to give him the benefit of his ex- ception : Stone v. Flower, 47 K Y. 566. The case, as the evidence would have warranted the jury in finding, if they had credited the testimony on the part of the plaintiff, was this : The defendant, a married woman, owning and holding at the time real estate to her sole and separate use, made a contract ISTovember 14, 1870, to purchase a vinegar fac- 156 ILLUSTRATIVE CASES tory in the city of IsTew York, at the price of $2500, with a view of entering upon and couducting the business of juauu- facturing vinegar. The purchase was completed by the pay- ment of the purchase price and the transfer of the property purchased to the defendant JSTovember 27, 1870, and on that day she commenced the business. The plaintiflF acted as her agent in negotiating the purchase, and JSTovember 17, 1870, after the contract of purchase had been made, he, upon the solicitation of the husband of the defendant (acting for himself and as the agent of his wife), loaned to them $950, to be ap- plied, and which was applied, in part payment for the factory. The note upon which this action is brought was given for the money loaned, and for services rendered by the plaintiff in ne- gotiating the purchase, and for the loss of interest on money withdrawn by him from the savings bank to make the loan. It does not distinctly appear whether the property purchased was real or personal. There seems to have been a chattel mort- gage on it, which was paid out of the purchase-money. The statute of March 2, 1860, " concerning the rights and liabilities of married women," provides that a married woman may carry on any trade or business and perform any labor or services on her sole and separate account, and that the earnings therefrom shall be her sole and separate property. The power of a married woman to make contracts relating to her separate business is incident to the power to conduct it. It cannot be supposed that the Legislature, while conferring the power upon a married woman to enter into trade or business on her own account, intended that ber common-law disability to bind her- self by contract should continue as to contracts made in carry- ing on the business in which she was permitted to engage. The power to engage in business would be a barren and useless one disconnected with the right to conduct it in the way and. by the means usually employed. By the eighth section of the Act of 1860, as amended in 1862, the authority of a married woman to bind herself by executory contracts in relation to her separate business is recog- nized in the provision which exempts the husband from liabil- ity thereon. The power to carry on a separate trade or busi- ness includes the power to borrow money, and to purchase IN DOMESTIC RELATIONS. 157 upon credit implements, fixtures, and real or personal estate necessary or convenient for the purpose of commencing it, as well as the power to contract debts in its prosecution after it has been established : Chapman v. Foster, d Allen, 136. The case should have been submitted to the jui'y. There was evidence tending to establish the liability of the defendant, and no question was made upon the pleadings. It is now too late for the defendant to object that the facts showing that the contract was one by which she was bound should have been specially averred in the complaint. But we are of opinion that a general complaint in an action upon a contract of a married woman is proper. The law makes her liable as a /erne sole if the contract was made in her separate business or in relation to her separate estate. If the contract sued upon is one she is not authorized to make, the objection should be taken by answer and raised upon the trial. The judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur. Judgment reversed. Sch. s. 167 ; Sch. Hus. & "Wife, s. 310 ; Foster v. Conger, 61 Barb. 145 ; Burk V. Piatt, 88 Ind. 283 ; Lovell v. Newton, L. R. 4, C. P. D. 7 ; Brown, p. 49. C. Ante-nuptial Settlements. These are contracts entered into between parties be- fore and in view of marriage, whereby certain property is settled in consideration of marriage or other con- sideration upon one or other of the parties. Desnoyer v. Jordan. Supreme Court of Minnesota. 27 Minn. 295. GiLEiLLAN, C. J. The appellant and Stephen Desnoyer were married in this State May 7, 1873, and he died December 3, 15& ILLUSTRATIVE CASES 1877, she surviving him. His estate being in course of admin- istration, she applied to the Probate Court in E-amsey County, in which the administration was pending, asking that one-third of the real and personal property might be set off to her as the widow, and as her portion of the estate, pursuant to the statute. The application was opposed by the heirs, and the Probate Court denied it. She appealed to the district Court, and tliat Court found as facts that " previous to their marriage, and just prior thereto, and in contemplation thereof, said parties (ap- pellant and Stephen Desnoyer) entered into a nmtual agreement in writing, executed by each of them under seal, and acknowl- edged before a notary public, and witnessed by two witnesses, whereby, in terms, Stephen Desnoyer, in contemplation of said marriage, and in consideration thereof, and in consideration of the services theretofore rendered to him by said Sally Johnson (appellant) as housekeeper, did grant and convey to said Sally Johnson, after his death, and for the term of her natural life, the real estate and appurtenances situate in the county of Ram- sey, and State of ilinnesota, described as follows (description), and did give and grant to her after his death, and during her life, the sura of $500 per year out of his estate, to be paid to her in equal semi-annual instalments, and did make the same a charge upon all his estate, and did also give to her absolutely at his death a horse, a buggy, a harness, a sleigh and a cow. In consideration thereof, said Sail}' Johnson did, by said agree- ment, in terms release said Desnoyer for past services, and did release all dower and right of dower in his lands, and all her interest or claim of any kind in and to the estate and property of said Desnoyer, which might arise by reason of said marriage, except as to the provision made for her in said agreement." The Court also found the agreement was not cancelled or abro- gated. The agreement was not recorded. The land described in it was owned and occupied as a residence by Desnoj-er at the time of making the agreement and of his death, and was parcel of a tract owned by him of about 300 acres. The contract was not produced on the trial, but the evidence as to its execu- tion and contents was fully sufficient to sustain the finding of the Court below. Indeed, it is difficult to see how the Court IN DOMESTIC RELATIONS. 159 could have found otherwise. And there is little, if any, evi- dence tending to show that it was afterwards cancelled. The question of appellant's homestead right (if it were to be conceded that it is not disposed of by this antenuptial agree- ■ ment) cannot be considered ; for, in her petition on which this proceeding is based, she expressly disclaims any intention to claim such right, and the evidence is not such as to identil'y any homestead beyond that described in the agreement. The agreement contemplated that, except as provided in the agreement itself, the appellant should be excluded from any right or interest in Desnoyer's estate that might otherwise accrue to her by reason of the marriage about to take place between the parties, in the absence of a valid agreement between the parties the law fixes the rights which either the husband or the wife shall have in the property of the other, both during life and after the death of either. But it has always been permitted to the parties in contemplation of mar- riage to fix those rights by agreement, equitable and fairly made between them, and to exclude the operation of the law in respect to fixing such rights ; so that, so far as the agreement extends, it, and not thelaw, furnishes the measure of such rights. That such antenuptial agreements might be made was recog- nized in the statute in force when this agreement was made: Gen. St. (1866) c. 69, §§ 1, 4 ; c. 48, §§ 14-17. The letter of these statutes did not limit (as appellant argues) antenuptial contracts to barring dower alone. It only prescribed what sort of provision for the wife, in any such contract, should have the effect to bar dower; that it must be a jointure of a freehold estate in her lands for her life, at least, to take effect in posses- sion or profit immediately on the death of the husband, or a pecuniary provision for her benefit in lieu of dower; such jointure or pecuniary provision to be assented to by her before the marriage. But it did not disable the parties to ma;ke an antenuptial contract which should, in any other respect, fix the rights of the parties in the property of each other. The parties having made their contract,and it being one which they were competent to make, and there being nothing to im- peach its fairness or equitable character, and it clearly provid- ing that the wife shall have no right or interest in the estate of 160 ILLUSTRATIVE CASES the husband other than that provided in the contract, this would seem to dispose of the case. But it is claimed that sub- sequent Acts of the Legislature confer on the wife, surviving her husband, rights in his estate which obtain, notwithstanding the antenuptial contract stipulates she shall have none other than ■ it provides for. At the time this contract was made, a widow was entitled to dower in the real estate of her deceased hus- band (unless barred, as in the statute provided), and in case of intestacy to certain allowances out of, and to the same distribu- tive share of, his personal estate as a child of the intestate would have. Afterwards dower was abolished, and in 1876 the Legislature passed an Act (Laws 1876, c. 37 ; Gen. St. 1878, c. 46, §§ 2, 3) which entitles the surviving husband or wife to a life estate in the homestead of the deceased, free from all claims on account of debts of deceased, and also absolutely to one- third of the real estate of which the deceased was seised during coverture, subject in its just proportion with the other real estate to such debts of deceased as are not paid out of the personal estate. Unless the operation of this statute is prevented by the ante- nuptial contract, the appellant is entitled, as to the real estate at any rate, to what she claims. But, inasmuch as the contract excludes all such rights as the statute assumes to give, the latter can have no effect without overriding the former ; that is, without impairing its obligation. Now, though the con- tract of marriage and its incidents, including rights of property depending on it, while such rights of property remain inchoate and are mere expectancies, may be within the power of the Legislature to vary or affect by subsequent legislation, it is not so with an antenuptial contract. Such a contract is founded on a high consideration. Rights under it are contract rights as much as any can be, not merely resting upon or incident to the relation of husband and wife. They are independent of such incidents. Such a contract is under the constitutional protection as much as any contract. So, even if the Legislature intended, by the statute last cited, or by that in 1876, regulat- ing distribution of personal estate of a deceased person (Laws 1876, c. 42 ; Gen. St. 1878, c. 51, § 1), to give rights contrary to the provisions of antenuptial contracts then existing, the statute would, to that extent, by reason of the constitutional IN DOMESTIC RELATIONS. 161 inhibition against laws impairing the obligation of contracts, be inoperative ; but we do not think the Legislature intended to affect such contracts in any way. Judgnaent affirmed. 2 Kent, 165 ; Brown, 55 ; Sch. s. 171-183 ; Bradish v. Gibbs, 3 John. Ch. 5-23 ; Cannel v. Buckle, 2 Peere Williams, 243 ; Henry v. Henry, 27 Ohio St. 121 ; Kussell's Appeal, 13 Pa. St. 269. D. Post-nuptial Settlements and Transactions between husband and wife. Post-nuptial settlements do not have marriage for a consideration. They are gifts from husband to wife which equity enforces when not prejudicial to the rights of third persons or given in furtherance of fraud. Shephard v. Shbphard. New York Court of Chancery, 1823. 7 John. Ch. 57. Tlie bill stated that the plaintiff was the widow of Hazel Shepard, deceased. That before their marriage, in May, 1806, H. S., being seised of fifty acres of land, in Pittstown, and part of lot 8, in Hoosick's patent, in Rensselaer County, executed a deed, dated April 12, 1806, reciting their intended marriage, and that if they should purchase any real estate during their marriage the plaintiff should have a right of dower in the same during her widowhood, and he released to her dower therein ; " but no other right of dower to any other real or personal estate he then had, or might have, by means of selling any real or personal estate he then had, and buying and paying therewith." The plaintiff, on the same day, executed a deed to H. S., reciting their intended marriage, and releasing to him all right of dower in his estate, real or personal, by virtue of the intended marriage. That after their marriage, on the 26th of December, 1808, H. S. executed a deed to the plaintiff (she 11 162 ILLUSTRATIVE CASES being his wife), in consideration of natural affection, and to make provision for her when a widow, of a lot of land de- scribed, to hold during her widowhood. And afterwards, on the 6th of January, 1817, H. S., in consideration of natural affection, executed the deed to the defendant, bis son, releasing to him the same laud he had before released to the plaintiff". That on the same day the defendant, by deed, in consideration of $1000, released to H. S. 48 acres of the land described, during his life ; and the defendant covenanted with H. S. that he would pay annually to the plaintiff", during her widowhood, the sum of $60, or at his election the sum of $400, in two equal annual payments, to commence from the day of the death of H. S., if the defendant should so elect ; and the payment of the annuity, or of the $400, was to be on condition that the plaintiff" should release to the defendant all right, as widow of H. S. or by virtue of any deed or otherwise, to the said estate of H. S. ; and if she refused so to do the covenants of the defendants were to be void. The land described in the deed of the 26th of December, 1808, and that of the 6th of January, 1817, was the same land. fl. S. died on the 25th of April, 1819, and the plaintiff' remains bis widow, without any provision for her support. The defendant is in possession of the land described in the last-mentioned deed ; and the plain- tiff having brought an action against him, upon the deed from H. IS. to her, the defendant set up in defence that the deed was void in law. The defendant never made his election to pay the plaintiff $400. The plaintiff had offered to release to the defendant all her right to the estate of H. S. mentioned in the deed, provided the defendant would pay to her the annuity, which he refused to do. IsTo land was purchased by H. S. and the plaintiff during their marriage. The defendant had the title deeds, and refused to assign to the plaintiff her dower. Prayer that the defendant be decreed to release to the plaintiff all his right to the land described in the deed of the 26th of December, 1808, for her life, or widowhood, to take eff"ect as of the 28th of April, 1819, and to deliver the possession thereof, and account for the rents and profits from the death of H. S. ; or, if the plaintiff should so elect, that the defendant be de- creed to pay to her the annuity during her widowhood, upon IN DOMESTIC RELATIONS. 163 her releasing to him all her right in the land, and that he secure such annuity by a mortgage on the land, or otherwise ; or if that cannot be done, that the defendant be decreed to assign to the plaintift" her dower, and account for the mesne profits, &c. The defendant, in his answer, admitted the deeds as stated in the bill ; and that the deeds between H. S. and the plaintift", before their marriage, were in his possession. lie insisted that the deed of the 16th of December, 1808, from H. S. to the plaintiff, was void. That the covenants of the defendant in favor of the plaintift", were without consideration. That on thellthof October, 1817, H. S. being indebted to him, on various accounts, H. S. in consideration that the defendant would discharge him from those demands, agreed to discharge the covenants, and mutual releases were accordingly executed. He admitted that he had made no election to pay the plaintift $400, or the annuity, and insisted that he was not bound to make an election ; that the yearly value of the lands is not $60. He admitted that he had refused to assign to the plaintiff her dower, and submitted that her claim was matter of law, and triable at law, and not in chancery. He alleged that the consideration of the deed of H. S. to him vi^as $25, which he paid, and the life-estate was conveyed to H. S. in the premises. The cause was heard on the bill and answer. J. Paine, for the plaintiff. W. Raleigh, for the defendant. The Chancellor The plaintiff, upon the facts arising out of the bill and answer, claims the assistance of the Court (1), to make effectual, according to the terms of it, the deed to her from her husband. Hazel Shepard, of the 26th of December, 1808 ; or, if that deed cannot be enforced as against the de- fendant, that then (2) the defendant be decreed to pay to her the annuity of $60 according to the terms of his covenant made to her husband on the 6th of January, 1817 ; or (3) that her dower in the real estate, whereof her husband w^as seised, and which is now claimed by the defendant, be duly assigned 164 ILLUSTRATIVE CASES to her, and that an account be also rendered to her of the rents and profits from her husband's death. 1. The deed from H. S. to the plaintiff was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife during coverture : Co. Litt. 3 a. And in equity, the Courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus in Stoit V. Ayloff, 1 Ch. Rep. 33, the husband promised to pay his wife £100 ; they separated, and she filed a bill for that sum. But the Court would not relieve the plaintiflT, " because the debt was sixteen years old, and the promise made by a husband to a wife, which the Court conceived to be utterly void in law." Again, in Moyse v. Giles, 2 Vern. 385, Prec. in Ch. 124, the husband made a grant or assignment of his interest in a church lease, to his wife ; she brought a bill, after his death, to have the defective grant supplied, and the Court held the grant to be void in law, and dismissed the bill, as the grant was voluntary and without consideration. So, in Beard v. Beard, 3 Atk. 72, the husband by deed poll gave to his wife all his substance which he then had or might thereafter have. Lord Hardwicke considered the deed poll to be so far effectual as to be a revocation of a will, by which the testator had given all his estate to his brother ; yet that it could not take effect as a grant or deed of gift to the wife, " because the law will not permit a man to make a grant or conveyance to the wife in his lifetime, neither will this Court suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to." It is to be observed that none of these cases were determined strictly and entirely upon the incapacity of the husband to convey to the wife according to the rule of law ; and they do not preclude the assertion of a right, in a Court of Equity, under certain circumstances, to assist such a conveyance. The Court relied upon the staleness of the demand in the first case, and upon the want of consideration in the second, and upon the extravagance of the gift in the third, as also constitutino- grounds for the decree ; and it is pretty apparent, that if the grant in each case had been no more than a suitable and IN DOMESTIC RELATIONS. 165 meritorious provision for the wife, the Court would have been inclined to assist it. In Slanning v. Style, 3 P. Wins, 334, Lord Talbot said that Courts of Equity have taken notice of and allowed feme coverts to have separate interests by their husbands' agreement, especially where the rights of creditors did not interfere. And in More v. Ellis, Bunb. 205, articles of agreement, executed between husband and wife, were held binding without the intervention of trustees. So in Lucas v. Lucas, 1 Atk. 270, Lord Hardwickb admitted that in chancery gifts between husband and wife have often been supported, though at law the property is not allowed to pass ; and he referred to the case of Mrs. H. and to that of Lady Cowper. And in the very modern case of Lady Arundel v. Phipps, 10 Ves. 146, 149, Lord Eldon held that a husband and wife, after marriage, could contract, for a bond fide and valuable considera- tion, for a transfer of property from the husband to the wife, or to trustees for her. The consideration for the deed to the wife, in the case before me, was very meritorious. It was " natural aft'ection, and to made sure a maintenance for the said Anna S., wife and consort of H. S., in case she should survive him." She had been induced, prior to the marriage, to release to H. S. all right and claim of dower to arise under the intended marriage, and the consideration of this release was an engagement on his part that she should have dower in any real estate to be purchased by them " by their prudence and industry during the cohabitation." But no estate was purchased by them by those means, and, according to the literal terms of those deeds, she was barred of her dower without any substitute. The deed to the wife of certain lands, being part and parcel of his estate, for and during her widow- hood, was, therefore, no more than a just and suitable provision, and one that a Court of Equity can enforce consistently with the doctrine of the cases. The defendant does not stand in the light of a creditor, or of a purchaser for a valuable consideration without notice, and we have none of the difficulties before us which such a character might create. He does not deny notice of the existence of the deed to the plaintiff, when he received the deed of the same lands from H. S. ; and he does not pre- tend that he gave any thing more than the nominal considera- 166 ILLUSTRATIVE CASES tion of $25, though the consideration of $1000 was inserted in the deed. The fact that he did, on the day of the date of that deed, reconvey the lands to H. S., his father, for life, and did annex thereto a covenant to pay to the plaintift" an annuity of 860 during her widowhood (and which he now says is more than the annual value of the land), is decisive evidence that he took the land of his father with knowledge of the equitable claim of the plaintiff", and with an engagement on his part to give her a reasonable compensation in extinguishment of that claim. I conclude, accordingly, that the deed from the husband to the wife may and ought, in this case, to be aided and enforced by this Court. This would seem to be the most safe and effectual relief to her, and it is one that her husband intended, before the alienation of his affections. The defen- dant would deprive her not only of her rights under this deed, but of all right and title to dower, by reason of her ante- nuptial release, and also of all compensation, in lieu of dower, under his covenants, which were made to the husband, and by him subsequently released. 2. But if the deed of 1808 was out of the question, I should then have no difficulty in declaring that the defendant was bound to pay her the stipulated annuity, or the gross sum of $400 in lieu of it, on her releasing all right and title, as wife of H. S., to his estate, as described in the deed of the defendant. The relationship between the husband and wife was sufficient to entitle the plaintiff' to her action upon the covenant to her husband, and which was made for her benefit. The consideration enured fi'om the husband, and arose from the obligations of that relation ; and the release of the defen- dant from his covenants by H. S. was fraudulent and void, as respected the plaintiff, who had the sole beneficial interest in the covenants, and who was alone entitled in equity to release them. In Button v. Poole, 2 Lev. 210, 1 Vent. 318, T. Jones, 103, the defendant in consideration that his father, at his re- quest, would not cut and sell certain timber growing, promised to pay the plaintiff, his sister, £1000, and it was held, after solemn argument, that an action of assumpsit lay, at law, in the name and behalf of the sister, and the judgment was affirmed IN DOMESTIC RELATIONS. 167 on error to the Exchequer Chamber. It was said that the beneficial interest was in her, and she was the party who might have released. Lord Mansfield in Martyn v. Hind, Cowp. 443, Doug. 142, said that it was difficult to conceive how a doubt could have been entertained about this case of Dutton V. Poole. The same doctrine appears in the more early case of Starkey v. Mill, Sty. 19G, and it has had the sanction also of Mr. Justice Buller, in Marchington v. Vernon, 1 Bos. & Pul. 101, in noiis : see Scherraerhorn v. Vanderheyden, 1 Johns. B,ep. 139, S. P. But it is quite unnecessary to dwell longer on this second point. The plaintiff is entitled to the use and enjoyment of the land contained in the deed, for and during her widowhood ; and as the deed is void at law, and can only be sustained in a Court of Equity, it becomes necessary that the remedy should be afforded here, and it forms a just and proper subject of equitable jurisdiction. I shall, therefore, direct a reference to ascertain the net value of the rents and profits, from the death of the husband, on the 25th of April, 1817, to the date of the report ; and that the defendant, within thirty days after notice of this decree, deliver up possession to the plaintiff" of the premises contained in the deed to her, and included in the deed from H. S. to the defendant ; and that the defendant, and all persons under him, be enjoined from disturbing the plaintiff", after she shall have obtained possession of the land and been put into the pernancy of the future rents and profits, and in the enjoyment thereof, to her own use and benefits, during her widowhood ; and that he pay to her the rents and profits so to be ascertained, within thirty days after the report made and confirmed, together with her costs of this suit, to be taxed, or that the plaintiff have execution therefor. Decree accordingly. Brown, 57 ; Sch. 184^194 ; 2 Kent, 173-178 ; Beal v. Warren, 2 Gray, 447 ; Livingston v. Livingston, 2 John. Cli. 537 ; "Wallingford v. Allen, 10 Pet. 583 ; Putnam v. Bicknell, 18 Wis. 351 ; Huber v. Huber, 10 Ohio, 371 ; Simmons v. McElwaine, 26 Barb. 419 ; Stockett v. Holliday, 9 Md. 480 ; Majors v. Everton, 89 111. 56. 168 ILLUSTRATIVE CASES A conveyance from a husband directly to his wife without the intervention of a trustee is void at law. Mabtik v. Martin. Supreme Judicial Court of Maine, 1821. 1 Me. 394. The appellee filed his petition in the Probate Court for par- tition of the real estate of which his father died seised, and the Judge thereupon decreed that partition be made. From this decree the mother of the petitioner appealed to this Court, and filed the following as the cause of her appeal : — " Because Ezekiel Martin, her husband, on the 20th day of June, 1808, being then in full life but since deceased, by his deed of bargain and sale, with general warranty, duly acknowl- edged July 28, 1818, and recorded, for the consideration of four hundred dollars therein acknowledged to have been re- ceived of said Mary, did give, grant, bargain, sell, and convey to said Mary and her heirs and assigns forever in fee, the land described in the petition aforesaid, by force of which deed she became and still is sole seised and possessed of said land in her own demesne as of fee," etc. And the question was upon the effect of this deed. Greenleaf, for the appellant. No other reason is given against the validity of a deed of conveyance from the husband directly to the wife, but this, that they cannot contract with each other, being in law but one person. But this maxim is not universally true, and the reasons on which it is founded do not apply to cases like the present. The incapacity of &feme covert arises not from her want of skill and judgment, as in the case of an infant ; but 1st, from the hus- band's right to her person and society, which would be violated if a creditor could arrest and take her away, and 2d, from his right to her property. IN DOMESTIC RELATIONS. 169 1. She may sue and be sued as a feme sole where the hus- band is banished: Co. Lit 432 6; or has abjured the realm for felony : case of the wife of Weyland, cited in Co. Lit. 133 a; or is an alien enemy : Duchess of Mazarine's case, 1 Salk. 116 ; 1 Lord Raym. 147 ; 2 Salk. 646. She may contract with her husband to live separately, and he cannot compel her to live with him again : Mrs. Lester's case, 8 Mod. 22 ; Rex v. Lester, 1 Stra. 478 ; Rex v. Mead, 1 Burr. 542. For in these cases he is understood to have renounced -his marital right to her person. 2. Where the husband covenanted that she might enjoy, to her own use, her estates, real and personal, and that he would join her in the surrender of her copyholds, her surrender with- out him was holden good : Compton v. Collinson, 1 H. Bl. 334 ; 2 Atk. 511. Husband gave his wife a note of 3000^. to be paid if he should ever again treat her ill ; and he did so, and the note was decreed in Chancery to be paid : Reeve Dom. Rel. 94, cites 2 Veu. 217 ; 2 Vern. 67. But even his right to her property has its limits. She may take separate property by devise ; and if no trustees be appointed by the will the husband shall be trustee for her use: Bennet v. Davis, 2 P. Wms. 316. So of a legacy of stock : Rich. v. Cockell, 9 Ves. Jr. 369. So of a gift from the husband to the wife : Moore v. Freeman, Bunb. 205. And she may even have a decree against him in respect of such estate: Cecil v. Juxon, 1 Atk. 278. She may accept a gift of personal ornaments from her husband. She may lend money to him, which his executors shall be bound to repay : Slanning V. Style, 3 P. Wms. 334 ; lb. 337. And she may bequeath her own personal property, of which she was endowed ad ostium eo- clesice ; Reeve, 145-150, and authorities there cited. The reason of all these cases applies with as much force at law as in equity, viz., that the husband's right to her property is not thereby affected. The wife may also act in aider droit as a, feme sole. She may be an attorney : Co. Lit. 52 a, or a guardian ; and her receipt separate from her husband is good : Reeve, 121, cites 13 Ves. 517. So if she have power to dispose of lands to whom she pleases she may convey without her husband : Daniel v. Upley, W. Jon. 137, cited in note 6 to Co. Lit. 112 a ; because, as Mr. 170 ILLUSTRATIVE OASES IIakgravb observes, " he can receive no prejudice from her acts." She may in such case convey to her husband : E,eeve, 120. She may be an executor — and if & ferae sole be appointed sole administrator, and take husband, he becomes joint admin- istrator ; but she alone may perform any acts which a joint administrator may perform : 1 Com. Dig. Administration (Z).). She may also release her dower by her separate deed, subse- quent to the husband's sale of the estate : Fowler v. Shearer, 7 Mass. 14. From these authorities this general principle is deducible — that the wife is to be considered capable to act as a feme sole, wherever the marital right to her 'person is not infringed — and wherever the estate of the husband can receive no prejudice from her acts. Now what prejudice can his estate receive, or what right of his can possibly be infringed, by considering her as capable to take directly from him by deed ? He may convey to trustees for her use. He may convey to a third person, and this per- son, at the same time, in pursuance of a previous agreement, may convey to the wife, with the husband's assent, and it will be good at law against him and his heirs. And yet divers deeds thus executed are to be taken as parts of one entire transaction : Holbrook v. Finney, 4 Mass. 566 ; Hubbard v. Cummings, ante p. 11. He may covenant to stand seised to her use ; and the Statute of Uses, 27 Hen. 8, vests the possession iu her : Co. Lit. 112 a. And in all these cases the estate descends not to his heirs, but to her own. The coverture may well operate to sus- pend any remedy on the covenants in a deed from the husband to his wife during the life of the husband ; and this for the pre- servation of domestic peace, and of his right to her person, which would be infringed if she could imprison him ; but this would not affect her capacity to take. M Whitman, for the appellee. It is a sufficient answer to the argument on the other side to say that the law of the land is otherwise. It has ever been considered as law here, from the first settlement of the country, that the wife was incapable to take by direct conveyance from her husband ; and conveyances have been regulated accord- ingly. Indeed the intervention of trustees on all occasions IN DOMESTIC RELATIONS. 171 proves that estates cannot be thus conveyed without them. No instance can be found of any attempt to sujiport a deed like this. The same has been the common law of Evgland from time im- memorial : Lit. sec. 168 ; Co. Lit. 112 a. And it is founded in good reason. It frees the husband from the constant importunity of the wife while he is in health, and from the effect of her influence over his mind when it becomes enfeebled by disease. If it were otherwise, this barrier which the presence of trustees interposes, would be broken down and every artful woman might disinherit the children of a former wife at her pleasure. Greenlcaf, in reply. The argument arising from the presence of trustees, as the protectors of a weak husband against the arts of an ambitious or an avaricious wife, is of little weight in the cause. Pliant trustees are as easily found as imbecile husbands ; and a wife, artful or eloquent enough to obtain her husband's consent to convey, will always be able to introduce some convenient rela- tive or friend of her own as trustee. As to the course of decisions, no adjudged case directly to this point is to be found in the books. Dicta, indeed, to this effect, are not infrequent ; but if the reason of the law does not support them, why should they be treated as law ? If the principle now contended for could operate to unsettle the titles to any estates, or to disturb vested rights, there might be good reason to reject it, and to adhere even to harmless errors, rather than do mis- chief by correcting them. But it does not go to disturb titles, it shakes no established principles or decisions, it abridges no rights ; on the contrary it vindicates the consistency of the law on this subject, and takes from it the reproach to which it is otherwise exposed. Mbllen, C. J. The only question presented in this case is whether the deed from Ezekiel Martin, the late husband of the appellant, directly to her is a legal conveyance by which the estate passed from him to her. If any principle of Common Law is settled and perfectl}' at rest, it seems to be this, that a hus- band cannot convey an estate by deed to his wife. The appel- lant's counsel has not attempted to show any authority shaking 172 ILLUSTRATIVE CASES this principle : and even the learned author of the Treatise on Domestic Relations — though an able advocate for the rights of married women in regard to the control or disposition of pro- perty belonging to them — does not contend that such a deed would be an operative conveyance : on the contrary he admits it would not. See pages 89, 90. The numerous cases cited by the counsel in support of the deed are principally Chancery de- cisions ; and those which are nol such have reference to questions totally different from that now under consideration. If either class of cases, then, can be relied upon as authorities in the de- termination of this cause. It can be of no use for the Court to disturb or attempt to disturb a legal principle, which has never before been agitated in our Courts or till very lately been even doubted. It is not necessary for us to answer the inquiry which has been made, " why a deed from a husband to his wife should not be a valid conveyance ?" in any other manner than by ob- serving that the law of the land declares such a deed to be a mere nullity. Accordingly, without a particular examination of the authorities cited on either side, we affirm the decree of the Judge of Probate and direct the record and proceedings to be remitted to the Probate Court that such further proceedings may be had therein as the law requires. Sch. s. 192 ; McMullen v. McMullen, 10 la. 412 ; Voorhees v. Presby- terian Church, 17 Barb. 103 ; Ransom v. Ransom, 30 Mich. 328 ; Minn. Gen. St. 1878, e. 69, s. 4 ; Gen. Laws Minn. 1881, c. 148 ; Gen. Laws Minn. 1889, c. 31 ; Leonard v. Green, 34 Minn. 137. IN DOMESTIC RELATIONS. 173 E. Rights and liability of the surviving husband. Resting upon the Statute of 31 Edw. III., as well as upon juri mariti, it was established in English law that the surviving husband has a right to administer on his wife's estate. This same right is generally recognized by statute in this country. Judge of Probate v. Chamberlain. Supreme Court of Ifew Hampshire, 1824. 3 N. H. 129. This was an action of debt upon a probate bond given by the defendant upon his taking upon himself the burthen of ex- ecuting the will of Moses Chamberlain, deceased. The de- fendant was defaulted, and upon a hearing of the parties as to the sum, for which ej^ecution ought to be awarded, it ap- peared that the said Moses, the testator, by his will gave to his daughter Rhoda $100, to be paid to her in one year after the decease of her mother. Rhoda, having married Lemuel Wheelock, died without issue after the decease of her father, but before the decease of her mother, leaving several brothers and sisters. The mother of Rhoda died in the year 1819. The question was. Whether the husband of Rhoda was entitled to the said legacy ? Richardson, C. J. At the common law administration of the estate of a person dying intestate belonged of right to no particular person, but it was in the discretion of the ordinary to ffrant administration to whom he saw fit. But the statute of the 21 H. VIII. gave the administration to the next of kin • and when there happened to be more than one of equal akin, he who first took administration was entitled to the surplus of the personal estate after paying the debts. The law thus re- mained until, by the statute of 22 and 23 Car. II. cap. 10, ad- ministrators were made liable to make a distribution. But 174 ILLUSTRATIVE CASES that statute made no express mention of a husband's admin- istering to his wife, and as no person could be in equal degree to the wife with the husband, he was held not to be within the Act. And the statute of 29 Car. II. cap. 3, sec. 25, expressly declared that the husband might demand administration of bis deceased wife's personal estate, and recover and enjoy the same as he might have done before the statute of the 22 and 23 Car. II. cap. 10. Since that time it seems never to have been doubted that a husband may administer upon his deceased wife's estate, and that he is entitled for his own benefit to all her chattels real, things in action, trusts, and every other species of peraonal property, whether actually vested in her and re- duced to possession, or contingent, or recoverable only by action. And in case the husband dies before he administers, the right to administer and to the property goes to the heirs of the hus- band : Coke Litt. 351, note; 6 John. 112, Whitaker v. Whit- aker ; 4 Coke, 51, Ognel's case; 1 Wilson, 168, Elliot v. Collier; Eoll's Ab. 345 ; Comyn's Digest, " Baron & Feme" E. 3 ; Or-' phan's legacy, 248 ; Bacon's Ab. " Baron & Feme " C ; Lovelass on Wills, 2 ; Wentworth, 383 ; P. Williams, 380 ; Cro. Car. 106, Johns V. Rowe. We are therefore of opinion that the husband of Rhoda is entitled to the legacy given her by her father. Sch. s. 196-199 ; 2 Kent, 135 ; Hemphrey v. Bullen, 1 Atk. 459 ; Gen. St. Mass. c. 94, s. 1, clause 4 ; Weaver v. Chance, 5 E. L 356 ; Watt v. Watt, 3 Ves. Jun. 247. IN DOMESTIC RELATIONS. 175 By marriage the husband acquired a usufructuary interest in his wife's real estate. More than this, if a child capable of inheritance is born of the marriage, he receives a life estate in all the real property of which his wife was seised during coverture ; initiate upon birth of issue, consummate upon death of wife. Breeding v. Davis. Supreme Court of Virginia, 1883. 77 Va. 639. Lacy, J. It is conceded that Hardin L. Crura had no other nor greater interest in the land of Randolph Clark than such as he might have acquired by marriage with his daughter, Eliza L. The appellees contend that by reason of the said marriage of the said Krum, he, having had children born alive of the marriage, was seised of a vested right of curtesy in the land of the wife, contingent upon her dying before him, which was curtesy initiate. The appellant, on the other hand, contends that the Act of the General Assembly of Virginia, passed April 4, 1877, known as " The Married Woman's Act," had set apart the property of the wife, to be held free from any and every power of the hus- band, either to alienate or encumber the wife's land by any act, either directly or indirectly, and that no right of curtesy re- mains to the husband, except when he survives the wife. The said Act provides : " That the real and personal property of any female, who may hereafter marry, and which she shall own at the time of her marriage, and the rent, issues, and profits thereof, and any property, real or personal, acquired by a mar- ried woman, as a separate and sole trader, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall be and continue her separate and sole property ; and any such married woman shall have power to conti-act in relation thereto, or for the disposal thereof, and may sue and be sued, 176 ILLUSTRATIVE CASES as if she were a feme sole ; provided, that her hushand shall join in any contract, in reference to her real or personal prop- erty, other than such as she may acquire as a sole trader, and shall be joined with her in any action by or against her; and provided further, that nothing herein contained shall deprive her of the power to create, without the concurrence of her hus- band, a charge upon such sole and separate estate as she would be empowered to charge without the concurrence of her hus- band, if this Act had not been passed. 2. All real and personal estate hereafter acquired by any married woman, whether by gift, grant, purchase, inheritance, devise, or bequest, shall be and continue her sole and separate estate, subject to the provisions and limitations of the preced- ing section, although the marriage may have been solemnized previous to the passage of this Act ; and she may devise and bequeath the same as if she were unmarried, and it shall not be liable to the debts or liabilities of her husband ; provided, that nothing contained in this Act shall be construed to deprive the husband of curtesy in the Avife's real estate, to which he may be entitled by the laws now in force ; and provided further, that the sole and separate estate created by any gift, grant, de- vise, or bequest shall be held according to the terms and pow- ers, and be subject to the provisions and limitations thereof, and to the provisions and limitations of this Act so far as they are in conflict therewith. 8. Any married woman may, in her own name or by her next friend, file a bill in equity in any Court having jurisdic- tion over the subject matter, in the event of her husband's re- fusing, or being incompetent to unite in the conveyance or dis- posal of her separate estate ; and if the Court shall be of the opinion that the interest of the married woman will be promoted by a sale thereof, may make such decree as may be necessary to convey absolute title thereto:" Acts of Assembly, Sess. 1876- 77, pp. 333, 334. Let us consider what changes have been wrought in the law concerning the estates by the curtesy, which the husband may have in the lands of the wife, by the enactment of this statute. When a man takes a wife seised during the coverture of an estate of inheritance, legal or equitable, such as that the issue IN DOMESTIC KELATIONS. 177 of the marriage may by possibility inherit it as heir to the wife, has issue by her born alive, and the wife dies, the husband surviving has an estate in the land for his life, which is called an estate by the curtesy : 2 Bl. Com. 126. The requisites of an estate by the curtesy, then, are marriage, seisin of the wife, birth of issue alive, and death of the wife : 1 Lom. Dig. 77. The death of the wife is one of the requisites for curtesy. It is conceded in this case — indeed, it is proved — that the wife is alive. During the wife's life, after issue born alive, the husband is said to be tenant by the curtesy initiate. Upon her death only is he tenant by the curtesy consummate. Before the passage of the Act quoted above the husband ac- quired by the marriage an estate in the wife's land, more or less ample according to the birth or failure of issue. By the marriage, while yet no issue had been born of the marriage, the husband acquired a freehold interest during the lives of himself and wife, and in all such freehold property of inheri- tance as she was seised of at the date of its celebration, and also that which she became seized of during the coverture. The nature of this estate was not that the husband alone, but he and his wife together were, in right of the wife, seised of a freehold estate of inheritance in her freehold lands of inheri- tance. As soon as issue was born the estate of the husband was changed in its character. By the birth of issue he became ten- ant by the curtesy initiate, and as such took an estate in the lands of his wife in his own right. The husband upon the mar- riage was entitled to take during their joint lives the rents and profits of her freeholds. Under the feudal law before issue born the husband and wife did homage together, but after issue born alive he performed that service alone, and was called tenant by the curtesy initiate. Mr. Blackstonb says: "The husband by the birth of the child becomes tenant by the curtesy initiate, and may do many acts to charge the lands, but his estate is not consummate until the death of the wife, which is the fourth and last requisite to make a complete tenant by the curtesy." In this case, the wife being alive, it is not contended that the estate of tenant by the curtesy in the husband has been com- pleted. But the Circuit Court held, as we have seen, that the husband had a present vested interest in the wife's lands, such 12 178 ILLUSTRATIVE CASES as could be sold during the wife's life, and decreed the sale of this supposed interest of the husband in his wife's land. Ifow what was that interest ? Did he have " a freehold in- terest, such as has been described above, during the joint lives of himself and wife," which would have enabled him to take during their joint lives the rents and profits of her freeholds ? That cannot be successfully contended, for by the Act of As- sembly cited above the real and personal property of the female, and the rents, issues, and profits thereof, are declared not to be subject to the disposal of her husband, nor to be liable for his debts. Can this supposed interest, which the Circuit Court decreed to be sold, be that tenancy by the curtesy initiate, by which, after issue born, the husband did homage alone to the lord, or held such an estate, which, Mr. Blackstone says, he might do many acts to charge ? Let us turn again to the Act before referred to. By that Act the property of the wife is not only set apart to her own use as to the rents and profits, but she is authorized to devise the same as if she were unmarried, and it is declared not to be liable to the debts or liabilities of her hus- band. What possible interest or right of control can the hus- band be held to have in or to the lands of the wife under this statute during the coverture ? And as if to clear this question of every possible doubt, the third section of the said Act pro- vides that " if the wife shall Avish to absolutely dispose of her property her husband shall unite with her, and if he shall re- fuse she may carry him into Court to compel him." When the Court is to consider, not whether it is to the interest of the husband, but the Act declares, " and if the Court shall be of opinion that the interest of the married woman will be promoted by a sale thereof, may make such decree as may be necessary to convey the absolute title thereto." Ifow note the language, " tiie absolute title"— after consider- ing only, " whether it is to the interest of the married woman." Under a reasonable construction of this Act, what estate is left in the husband during the coverture? and under the very lan- guage of the Act, when is the interest or estate of the husband to vest upon these lands of the wife during the coverture? The Act, however, provides " that nothing contained in this IN DOMESTIC RELATIONS. 179 Act shall be construed to deprive the husband of curtesy in his wife's real estate." What is meant by this provision — how is it to be construed ? It should be construed so as to bring all parts of the Act in harmony with each other, but not so as to destroy the Act, and render all its provisions nugatory and valueless. What is it the husband is not to be deprived of? Curtesy. What does curtesy mean ? Mr. Bouvier says : " Curtesy is the estate to which by common law a man is entitled, on the death of his wife, in the lands or tenements of which she was seised in possession in fee simple, or in tail during their coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate," an estate to which he is entitled at the death of his wife. If this provision is con- strued according to its very letter and terms, it is in harmony with the whole Act, which would in substance then provide that the wife should have absolutely her property during her life, but that at her death her husband, if he survived her, might have curtesy in the land. If, as is contended, the Act means curtesy initiate, all the provisions of the Act are thus repealed, and the terms of the Act are made to conflict. For if the property, both real and personal, and the rents and profits of the same are to be in the wife, and the wife alone, they cannot at the same time be in the husband in any decree, in his own right, which, as we have seen, they would be if he held a tenancy by the curtesy initiate. Then we think it is clear that the husband has no interest whatever in the lands of the wife during the coverture ; and that in this case, therefore, Hardin L. Crum had no interest in his wife's lands, which the Circuit Court could sell, and that the Circuit Court erred in its decree complained of, whereby it dissolved the injunction which restrained the sherift'from sell- ing the lands of the wife to satisfy the debt of the husband, who had no interest in the land mentioned in the bill subject to levy and sale for his debts ; the right to the rents, issues, and profits of his wife's land never having vested in the said husband for the reason stated above daring their joint lives. The consequence of giving the wife, as the statute does, the control of her property free from the interference of her bus- 180 ILLUSTRATIVE CASES band, is to postpone his right of curtesy until her death, and hence to render it contingent on his surviving her. See Wells on the Separate Property of Married Women. The rights formerly acquired by the husband by virtue of the marriage have almost all been taken away, and the disa- bilities of the wife have nearly all been removed. She now controls her own estate entirely, except that she cannot convey her real estate without her husband: Beach v. Miller, 51 111. 209. But by the Virginia statute the Court may compel her husband to unite in the conveyance if it shall appear to be for her benefit. This is solely for her benefit, and to prevent her from squandering the estate. The husband has now only a modified tenancy by the curtesy, dependent upon a contingency, and no estate vests in the husband during the life of the wife. This is rather a shadowy estate. It is an interest which may possibly ripen into something tangible in the uncertain future. Previous to the Act it could be sold on execution against the husband. Now the wife has the sole control of her real estate during her life, and the husband has no interest until her death. This estate at best is now a bare possibility, dependent on his surviving his wife : Martin v. Robson, 65 111. 132 ; Hill v. Chambers, 30 Mich. 427. At common law the death of the wife was necessary to the estate by the curtesy. It is one of the four requisites, as we have seen. But upon the birth of a child another anomalous estate was created, called tenancy by the curtesy initiate. It was the increasing the estate for their joint lives, which he held before in his wife's lands, into an estate for his own life. The Married Woman's Act, as it prevented his acquiring any inter- est in his wife's estate during her life, destroyed the estate of tenancy by the curtesy initiate. The Act, however, does not defeat the husband's estate by the curtesy at her death ; provided the estate has not been aliened before her death. The Act only protects her estate during her life ; it does not at her death affect the law of succession as to real or personal estate : Porch v. Fries, 18 N. J. Eq. 208. By the former law the husband and wife were regarded as one person, and her legal existence and authority, to a degree were lost or suspended — merged in those of her husband. She IN DOMESTIC RELATIONS. 181 had not capacity to contract, nor had she administration of property. By the marriage, if the wife \Yas seised of an estate of inheritance, the husband became seised thereof, talcing the rents and profits during their joint lives, and by possibility during his life. Now he cannot enjoy the profits of her real estate without her permission. He has no control over her separate property. It is not subject to his disposal, control, or interference. All her separate property is under her sole control, to be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried. The product of her labor is her ex- clusive property, and she may use and possess it free from the interference of her husband or his creditors. The intention of the Legislature is plainly to abrogate the common law rule to a great degree that the husband and wife were one person, and give her the right to manage her separate property and contract with reference to it. Curtesy, as we have said, is preserved by the statute, but his wife is living ; so Crum has no title by the curtesy. Whatever interest he has in his wife's lands is depen- dent upon a contingency — whether he shall survive his wife ; and no estate can be said to vest in him during the life of the wife. The appellant, Breeden, has become by purchase entitled to the wife's land, and although he has sold to a third person for value, he has sold under a general warranty and under a special covenant to quiet the title to this land, and the purchase-money is withheld until he performs this covenant, and he is entitled to bring this suit by reason of his subsisting interest therein. It is objected by appellee that as the debt of the husband, Crum, is less than $500, this Court has no jurisdiction of this cause. But this is not a contest over, or indeed concerning the Crum debt to Davis, and it is of no concern to this case what is its amount ; the question here is, where is the title to Mrs. Crum's land vested ? If in Mrs. Crum, then the Circuit Court cannot sell it for Crum's debt. If the title is in Crum in any degree by reason of the coverture, then the Circuit Court may sell the interest of Crum in the land ; so it cannot be maintained that the title to this land is not involved. The title to this 182 ILLUSTRATIVE CASES land is exactly the question at issue, and the jurisdiction of this Court undoubted. As to the adjudications in the common law suit, they do not in any wise aftect Mrs. Crum, nor any land of hers, as she was not a party to that suit, and in no way connected with it. The decree complained of must be reversed and annulled, and the appellee perpetually enjoined from further proceedings under his judgment. 2 Bl. Com. 126 ; 1 "Wash. Eeal Prop. e. 6 ; Sch. s. 201 ; 4 Kent, 27-35. The estate of curtesy has been aboUshed in most of the States. For the Minnesota law see Gen. Laws, 1875, c. 40, s. 1-4 ; Gen. Laws, 1876, c. 37. F. Eights and liabilities of the surviving wife. While the widow is usually selected to administer upon the deceased husband's estate, it lies with the Court whether it will select the widow, next of kin, or both. Fawtkt v. Fawtry. Court of King's Bench. 1 Salk, 36. 1 Show. 351. S. C. Administration of H. 's goods may be granted to wife or next of kin, or of part to one, and part to the other ; but admin- istration of wife's goods must be granted to the husband. Administration cannot be granted of part of entire debt, part to one. and part to another : 1 Sid. 100 ; Br. tit. Administr. 24, 45, 47; 1 Vent. 414, 324 ; MoUoy de Jure Ma. 361 ; Comb. 289 ; 2 Strange, 891, 1118. H, died intestate, leaving a wife and a brother. The ordinary had granted the administration of some particular debts to the brother, and of the residue to the wife. M per Ward, the Court was moved for a mandamus to grant administration to the wife. Sed per Cur. "Where the husband dies, the ordinary is at elec- tion either to grant administration to the wife or next akin : Vide 1 Vern. 315 ; Eay ; 93 ; 2 Jon. 162 ; Str. 552 ; for this is IN DOMESTIC RELATIONS. 183 prrounded on the 21 H. 8, c. 5. Yet in that case she shall have her share on the statute of distributions. But where the wile dies, administration must be granted to the husband by 31 Ed. 3 ; vide Cro. Car. 106 ; Jon. 175 ; 1 Sid. 409 ; Mo. 871 ; Stat. 29 Car. 2, ch. 10. Also, the Court held the ordinary may grant administration to the brother quoad part, and to the wife for the rest; in which case neither can complain, since the ordinary need not have granted any part of the administration to the party complaining. But if the intestate leave a bond of £100, the ordinary cannot grant administration for 50£ to one person, and 50£ to another, because this is an entire thing, annua nee debitum, judex von separat ipsinn. Sch. s. 204 ; 2 Kent, 210-211 ; In the goods of Williams, 3 Hagg. 217 ; Anon. Str. 552; Mass. Eevised St. 1836 ; N. J. St. 1795 ; Elmer's Digest, 165 ; Minn. Probate Code Gen. Laws, 1889. Dower, that provision made by law for the wife out of the estate of her husband, consists of an undivided one-third interest for life in all the real estate of which the husband was seised during coverture. DicKiN V. Hamer. Court of Chancery, 1860. I Drewry and Smale, 284. In the month of November, 1843, Stephen Dickin, the first husband of the defendant, Mary Hamer, died intestate, leaving the infant defendant, Elizabeth Sarah Dickin, his only child and heiress-at-law. On the 2d of May, 1845, a bill for the administration of the estate of the intestate was filed by Elizabeth Sarah Dickin, by her next friend, against the defendant, Mary Hamer, then Mary Dickin, who had taken out letters of administration to the effects of the intestate. By her answer, filed on the 27th October, 1845, the defen- 184 ILLUSTRATIVE CASES dant, Mary Hamer, submitted that it ought to be ascertained whether she was entitled to dower out of the real estates of the intestate. By a decree in the cause, dated the 12th December, 1845, it was, amongst other things, referred to the Master to inquire and state whether the defendant, Mary Hamer, was entitled to dower out of any or either and which of the real estates of the intestate, and also whether it would be fit and proper that the whole of the said real estates, or any and what part thereof, should be let for coal mines. The Master by his report, dated the 16th of July, 1846 (amongst other things), found that the defendant, Mary Hamer, was entitled to dower out of all the intestate's real estate, sub- ject to certain debts charged thereon ; but he made no report respecting the letting any part of the estate for coal mines, the parties having declined to prosecute the inquiry before him. By an order, dated the 26th day of June, 1846, the defendant, Mary Hamer, was appointed guardian of the person of the infant plaintiff during her minority, or until furtherorderof the Court. By an order on further directions, dated the 24th day of July, 1846, it was declared that the defendant, Mary Hamer, was en- titled to dower out of the freehold estates of the intestate ; and it was referred back to the Master to inquire what was due to the defendant, Mary Hamer, in respect of her dower from the death of the said intestate ; and it was ordered that the defen- dant, Mary Hamer, should receive and collect the rents and profits of the real estate of the said intestate during the minority of the plaintifl", and keep down the interest on the mortgage to be created (as therein mentioned), and retain the annual sum of £60, or such other sum as the Court should direct, for the main- tenance of the plaintiflj"; and that the defendant, Mary Hamer, should from time to time pay the residue of the said rents and profits into the bank to the credit of the cause, to an account to be entitled "The Account of the Infant Plaintifi', Elizabeth Sarah Dickin ;" and it was ordered that the said Master should prosecute the inquiry by the decree on the hearing directed, re- specting the leasing of the intestate's estates, or any part there- of, for coal mines. By an order, dated the 7th day of March, 1855, it was ordered IN DOMESTIC KELATIONS. 185 that the defendant, Mary Ilamer, the receiver of the rents and profits of the real estates of the intestate, should cut down and sell by private contract certain poles and small timber standing and growing on part of the said real estates, and that the said Mary Hamer should account for the proceeds of such sales in passing her accounts as receiver. The said poles and small timber were cut down in pursuance of the said order, and the proceeds of the sale were duly accounted for by Mary Hamer in passing her accounts. On the 28th of April, 1855, the defendant, Mary Hamer, was married to her second husband, the defendant, David Hamer. On the 23d April, 1856, the Master made a report, by which he found it would be fit and proper that the whole estate should be let for coal mines. On the 8th of May, 1856, an order was made approving of the provisional agree- ment for a lease, and directing that the agreement should be carried out by a lease, to be settled by the Judge in chambers. The lease, which was settled in chambers, was dated the 15th November, 1857, and was made between the infant plaintiff", Elizabeth Sarah Dickin, of the first part, the said David Hamer and Mary his wife of the second part, Edward Williams of the third part, and G. B. Bloomer and Matthew Frost of the fourth part (and after certain recitals mentioned in his Honor's judg- ment), the said Elizabeth Sarah Dickin, with the consent and by the direction of the said Edward Williams, demised and leased, and the said Mary Hamer, as such guardian as afore- said, with the consent and approbation of David Hamer and of Edward Williams, demised, leased, and confirmed unto G. B. Bloomer and Matthew Frost, their executors, administrators, and assigns, all the mines, seams, rows, veins, and beds of coal, and veinstone in or under the real estate therein described, con- sisting of 155a. 3r. 12p., with the usual powers to dig and sink any pit or pits, or shaft or shafts, to build, erect, and set up engines, machinery, railway, devices, roads, and passages on any part of the land, except within 100 yards of the house therein mentioned (the said persons parties of the fourth part making satisfaction to the owners or occupiers for the time being of the land for any injury or damage done to the sur- face, except such as might arise from underground workings), 186 ILLUSTRATIVE CASES to have and to hold the said mines, etc., to G. B. Bloomer and Matthew Frost for twenty-one years, they paying to Elizabeth Sarah Dickin, her heirs and assigns, certain rents, rates, and royalties, and, amongst other things, a rent or sum of U. 4s. for every acre, and so in proportion for any less quantity than an acre, of the surface of the land entered upon and used for raising coal, etc. All the covenants were entered into by or with the infant plaintiff, and none by or with the defendant, Mary Hamer, or her husband. Several sums of money were received for royalties on the produce of the mines, and on proceeding to take an account of what was due to the defendant, Mary Hamer, for dower in pursuance of the decree on further directions, dated the 24th of July, 1846, from the death of the intestate, the defendant, Mary Hamer, claimed to be entitled to dower out of the pro- ceeds of the sale of the timber, and also out of the amounts so received for royalties paid under the lease ; but such claim was disallowed by the chief clerk, who was of opinion that what had taken place in the suit amounted to an assignment of dower. The case now came on by the adjournment of the summons from chambers. Mr. Tudor, for the defendants, in support of the claim of Mary Hamer to dower. What has taken place in this suit neither is, nor is equivalent to, an assignment of dower. There has been merely a declarar tion that the widow was entitled to dower. The decree does not in the usual form either direct that dower shall be assigned or direct a commission to issue to assign dower ; nor has the widow been put to her election to accept, nor has she accepted, anything in lieu of dower: Seton on Decrees, pp. 133, 331, 332 (2d edit.) ; Bamford v. Bamford, 5 Hare, 203. Moreover, by the decree on further directions, the widow, as the receiver, was directed to pay into Court the residue of the rents, after deducting the interest of a mortgage to be created, and a sum allowed for the maintenance of the infant plaintift", and with- out retaining anything on account of her dower. This she has done, and up to the present time has received nothing on account of her dower. The widow could not assign dower to herself: Perkins, sects. 45, 452. IN DOMESTIC RELATIONS. 187 With regard to the proceeds of timber and poles felled pur- suant to the order of the Court of the 7th of March, 1855, the case of Bishop v. Bishop, 10 L. J. Ch. 302, n. s. ; 5 Jur. 931, is an express authority that the widow is entitled to the interest of one-third thereof by way of dower for her life. [In answer to a question put by the Vice-Chancellor, Mr. Kenyon said that he could not contend that the widow was not entitled to dower out of one-third of the proceeds of the timber.] "With regard to the proceeds of the mines or royalties, if the case of the mines is to be considered as analogous to that of the timber, the widow is, upon the authority of Bishop v. Bishop, clearly entitled to have one-third thereof set apart each year, and to receive the income arisino; therefrom durino; her life. In the case of the mines, however, the widow is entitled to more, viz., to one-third of the proceeds or royalties for her life. As a general rule, a widow is entitled to dower of all the rents and profits of lands of which her husband was seised for an estate of inheritance. Amongst the profits of land must be reckoned the proceeds of coal mines, and, if they had been opened previously to the death of the husband, the widow would clearly be dowable of one-third of the proceeds : Stough- ton V. Leigh, 1 Taunt. 402, 409 ; Hoby v. Hoby, 1 Vern. 218. In this case, it is immaterial that the mines were not opened at the death of the husband, inasmuch as no assignment of dower has taken place, and the widow has accepted nothing in lieu of dower. Dower must, in fact, be assigned with reference to the state of things at the time of the assignment, and not with reference to the state of things at the time of the death of the husband. The time for determining what are the profits of the land out of which the widow is dowable is the time of the assignment. In the analogous cases of improvements effected on the land, as by draining or building, the widow is entitled to dower of the land in the state it is in at the time of the assignment of dower. Thus, it is laid down by Lord Coke, that "if the wife be entitled to have dower of three acres of marsh, every one of the value of twelve pence, [and] the heire by his industry and charge maketh it good meadow, every acre of the value of ten shillings, the wife shall have her dower ac- cording to the improved value, and not according to the value 188 ILLUSTRATIVE CASES as it was in her husband's time, for her title is to the quantity of the land, viz., one just third part. And the like law it is if the heire improve the value of the land by building: and on the other side, if the value be impaired in the time of the heire, she shall be endowed accordinsr to the value at the time of the assignment, and not according to the value as it was in the time of her husband :" Co. Lit. p. 32 a ; Roper's Husband and Wife, vol. i. p. 349 (ed. by Jac.) ; Bright's Husband and "Wife, vol. i. pp. 385, 386. Even in the case of the alienation of laud by the husband, if the land be improved by the alienee's building thereon, the widow is entitled to have a third in value of all the lands, estimating the value as at the time of the assignment, and not merely at the time of the death of her husband. In Doe d. Riddell v. Gwinnell, 1 Q. B. 692, Lord Denman says: " The right of dower unquestionably attaches on all the lands of which the husband was seised during the coverture, and as certainly attaches at the period of his death. If, indeed, the assignment of dower be postponed, the value must be taken at the period of assignment. And, as the sheriff", in case of any dispute, is the appointed judge for dividing the land by metes and bounds, it is difficult to see how that duty can be performed at any other time :" Bright's Husband and Wife, supra. It may be argued that, as in Bishop v. Bishop, it was held that the widow was dowable only of the interest of one-third of the proceeds of the timber, the same mode of estimating dower should be used in the case of mines, and it may be said that both cases proceed upon the same principle, namely, that the timber when felled and the coals when gotten from the mines are part of the inheritance. There is, however, no an- alogy between the cases. When mines are once opened by the owner of the inheritance, they become part of the profits of the estate, but that is not the case where the owner of the inherit- ance fells part of a wood. If, for instance, he were to begin to fell a wood which on his death was assigned to his wife for dower, she could not continue to fell the trees ; it would clearly be waste for her to do so. If, however, he had opened a mine, she could continue to work that, because her husband had, by opening it, made it, or the working of it, part of the profits of the estate. This is the reason given in Viner v. Vaughan, 2 IN DOMESTIC RELATIONS. 189 Beav. 466, by Lord Langdale, M. E., for an ordinary tenant for life being allowed to continue the working of open mines. Apply that reasoning to this case. Previonsly to the assign- ment of dower, mines had been opened by the heiress-at-law. She, being the owner of the inheritance, had, subject to the widow's right to dower, full power to open or let such mines ; she thereby made such proceeds part of the profits of the estate, and, as has been before shown, the time for ascertaining out of what the widow is dowable is not the death of the husband, but the time at which dower is assigned. The case of Stoughton v. Leigh is not an authority against this proposition, for there, although the Court was of opinion " that the widow was not dowable of any of the mines or strata which had not been opened at all," the question was not deter- mined which is raised in this case ; and that branch of the case of Stoughton V. Leigh only decides that where, at the time when dower is assigned, there are mines which have not been opened at all before the assignment of dower, they cannot be taken into consideration ; but here the mines have been opened before the assignment of dower. If part of the land containing a mine opened by the heiress- at-law were assigned to the widow, she might, as an ordinary tenant for life, continue to work it : Saunders's Case, 5 Co. 12 ; and so she is entitled to one-third of the proceeds of a single mine. The heiress has demised the minerals under all the estate, and it would be a great hardship to the widow if she is held not to be entitled to dower out of the royalties of the mines, because, by opening them, to use the words of Lord Denman in Doe d. Riddell v. Gwinnell, 1 Q. B. 694, " the land has been occupied and obliterated, making an assignment of it impossi- ble, and destroying the very means of ascertaining its indepen- dent value." The rental, moreover, of the land, which is only let to a ten- ant from year to year, will doubtless be diminished by the workino- of the mines and the operations on the estate connected with them. The widow having, before an assignment of dower, no estate in the land, joined in executing the lease merely as guardian 190 ILLUSTRATIVE CASES and to enable the infant plaintiff to grant such lease, and she did not thereby prejudice her right to dower. Moreover, if she had intended to do so, the lease would have been ineffectual for such purpose, inasmuch as it is not acknowledged, and at the time she executed it she was under coverture. Mr. Kenyan, for the infant plaintiff". Admitting that the widow is dowable out of the proceeds of the timber, the cases of the proceeds of timber and of mines proceed upon an entirely different principle. A tenant for life is entitled to the shade and fruit of timber standing upon the estate, and upon his foregoing the benefit the Court would, upon ordering timber to be felled, give him a life interest in the proceeds, although if he had felled it himself or it had been blown down, he would not have been allowed to derive any benefit from it : Tooker v. Annesley, 5 Sim. 235 ; Waldo V. Waldo, 12 Id. 107. It is otherwise as to mines ; as a tenant for life is impeachable for waste if he opens mines, so a dow- ress is not entitled to any benefit from them. In this case, it will be observed, the widow is merely party to the lease as guardian, there is no grant by her; and all the covenants are either by or with the infant, and all the rents and royalties are reserved to the infant. The right of the widow springs from her husband, her estate is a continuation of her husband's, it takes effect from his death, and is a life interest in a third of the estate, subject to impeachment for waste. The minerals descend to the heir, and the widow, upon an assignment of dower, is entitled only to the surface, and if the heir could work the mines under the land assigned to the widow for dower, he might do so: Humphreys v. Brogden, 12 Q. B. 739. The widow's right of quarantine is for forty days, and during that time dower ought to be assigned to her : Bracton, p. 96. The widow ought to have applied to the lord for an assignment of dower. The mines were not profits of the estate in the time of the husband, and therefore his v/idow is entitled to nothing from them : Doe v. Gwinell, 1 Q. B. 695 ; Whitfield v. Bewift, 2 P. Wms. 240. Mr. Tudor replied. IN DOMESTIC RELATIONS. 191 The Vice-Chancellor. jSTo case has been cited governing the present; there is only a dictum in a text-book that can be considered as an authority at all bearing on the question now before me ; and I assume tliat no other can be cited, having regard to the research and industry which have been exhibited by the learned counsel. It appears that this land has mines under the whole of it. Now, supposing that after the intestate's death the widow's dower had been actually set out by metes and bounds, I appre- hend she would be tenant for life of that portion, with remain- der to the heir; at all events, the heir would be owner in fee, subject to the dowress's life interest. "What, then, would in that case be the rights of the dowress and the heir respectively with respect to mines under the portion so set out by metes and bounds ? Of course, I mean unopened mines, because as to those opened in the lifetime of the husband, I apprehend, there would be no question. Could the dowress open mines on that portion ? Though there is not any precise authority on the point, it ap- pears to me that the dowress is in the position of a tenant for life of that portion of the land, l^ow, a tenant for life of land cannot himself open mines, but, on the other hand, the tenant for life has a right to say that the remainderman shall not open mines. And I do not see why the dowress would not be in the same position. If the heir, obtaining the consent of the dowress for the purpose, were to open mines upon the portion set out by metes and bounds, or to grant a lease of them, the dowress could not afterwards insist that she was entitled to a third of the profits of the mines, or a third of the rents reserved by the heir in the lease. What, then, are the circumstances here ? There has been no assignment of dower at all. That has taken place which takes place in the great majority of cases. Instead of the old-fashioned practice of assigning of dower, the parties have gone upon the footing of the dowress receiving one-third of the income of the whole estate and the heir the rest. Of course, such an arrangement is for the benefit of all parties. The heir being still an infant, a suit was instituted by the in- fant, by her next friend, against her mother the dowress for the purpose of administering the father's estate. In the course of those proceedings, when the cause came to a hearing, a decree 192 ILLUSTRATIVE CASES was made which, inter alia, directed an inquiry to the Master whether the defendant, Mrs. Hamer, was entitled to dower out of any and which of the real estates of the intestate Stephen Dickin, and it was ordered that the Master should inquire aud state to the Court whether it would be fit and proper that the whole of such real estate, or any or what part thereof, should be let for coal mines. In pursuance of that decree, the Master made a general report finding that the widow was dow- able of all the real estates, but the parties waived the inquiry as to letting the mines. A decree was made on further direc- tions in 1846, and Mrs. Hamer (then Mrs. Dickin) was appointed receiver of the real estates during the minority of the plaintiff; she was to retain certain sums, and she was from time to time to pay the residue into the bank, with the privity of the Ac- countant-General, to the credit of the cause, the account of the infant plaintiff, Elizabeth Sarah Dickin (a very important direc- tion) ; and it was directed that the Master should prosecute the inquiry directed by the decree with respect to leasing the estate for coal mines, Nine years after, a provisional agreement was made with some stranger for a lease of the mines under the land, but the Master made no report on the propriety of leasing till the 23d of April, 1856, when he made a report by which he found that it would be fit and proper that the whole estate should be let for coal mines. On the 8th of May, 1856, an order was made approving of the provisional agreement for a lease, and directing that the agreement should be carried out by a lease to be settled in chambers. The lease as settled was in this form : It was made between the infant plaintiff of the first part, Mr. and Mrs. Hamer (Mr. Hamer being the second husband) of the second part, and the lessees of the third part. The lease recites that the plaintiff is e.n infant, the only child and heiress-at-law of Stephen Dickin, and entitled in fee simple to the lands, and that shortly after the death of her father she instituted this suit ; that Mrs. Dickin was appointed guardian ; that in 1845 a decree was made for an inquiry as to the mines ; that in 1846 Mrs. Dickin was ap- pointed receiver ; that she had intermarried with Mr. Hamer ; that the Chief Clerk had made his certificate finding the above facts ; that iu the lease of the mines there was to be a certain IN DOMESTIC RELATIONS. 193 restriction as to the dwelling-house ; and that the attempts to find coal had been successful. By the operative part the infant grants, demises, and leases, and Mrs. liamer as such guardian (and, it is to be observed, only in the character of guardian), with the consent of her husband, grants, demises, leases, and confirms to the lessees all the mines, reserving to the infant the rents and royalties payable to the lessees. The covenants are all with or by the infant and none with or by Mr. or Mrs. liamer. The question, then, is, in what light I am to regard what has taken place with respect to the lease thus settled by the Judge in chambers. Am I to regard it in the same light as if the dowress and the heiress, each insisting that the other should not work the mines without her consent, had come to an ar- rangement that they should be worked for their mutual benefit? It appears to me that I cannot regard what was done in that light. The whole matter proceeded on the supposition that what was done was done by the infant, and for the benefit of the infant and of no other person ; and the Court acted upon the assumption that, with the concurrence of the dowress, the mines were to be let exclusively for the benefit of the infant. Mrs. Hamer, the dowress, being before the Court, if the grant- ing of the lease of the mines was intended to be a matter of arrangement between herself and the heiress for their mutual benefit, she would have taken care that what was done should be efiected in a very diflerent manner from that which was adopted. Although she joined in the lease, she did so not in respect of any right of her own, but only in her character of guardian of the infant, and she did not join in the covenants. Everything that was done was regarded by the Court, and by all parties, as being done exclusively for the benefit of the in- fant. Under these circumstances, I am of opinion that Mrs. Hamer is not entitled to any benefit resulting from the letting of these mines. If it had been the simple case of the dowress and heiress coming to Ihe Court before any of these proceedings had been taken under the authority of the Court, there might have been a fair question ; but what has been done in the suit, as it appears to me, precludes the dowress's claim. In any case, I am of opinion that the utmost the dowress could have claimed would have been one- third of the income of the proceeds aris- 13 194 ILLUSTRATIVE CASES ing from the royalties, and not one-third of the corpus. As the matter stands, the whole benefit of working these mines belongs exclusively to the infant, and Mrs. Hamer is not entitled to dower out of them. By an order subsequently made on further consideration, dated the 10th of July, 1860, it was declared that the defendant, Mary Hamer, was not entitled in respect of her dower to any benefit from the rents and profits of the mines or minerals opened and gained respectively since the decease of her late husband, the intestate Stephen Dickin ; and that until an as- signment should be made to the said defendant, Mary Hamer, in respect of her dower, she was entitled by way of dower to one-third of the clear net yearly rents and profits of the real estate, exclusive of the rents and profits in respect of the said mines and minerals, but inclusive of any rent which might be paid by the lessees of the mines for any portion of the surface of the estate which might be occupied or used by them. And it was declared that the defendant, Mary Hamer, was entitled in respect of her dower to one-third of the yearly income which had arisen or might arise from the amount of the purchase- money received for timber cut and sold under the direction of the Court. Sch. 5, 213 ; 2 Bl. Com. 129-150 ; 1 Wash. Keal Pro. 127-147 ; i Kent, 35-47. G. Separation and Divorce. A contract between husband and wife to he divorced or to live separate is void. McKee v. Reynolds. Supreme Court of Iowa, 1869. 26 la. 578. Married women : power to contract : liability : release OF DOWER : agreement to separate, etc.— Action at law by the payee against the maker of the following promissory note : IN DOMESTIC KELATIONS. 195 " $1000. On, etc., I promise to paj' to Robert McEee or order $1000, with 10 per ceut. iiitei'est from date, value received, Jan. 7, 1868. (Signed) Sarah F. Reynolds." The petition is in the ordinary form, alleging the execution of the note by the defendant, its non-payment, and demanding a jpersonal judgment against her for the amount thereof with interest and costs. The consideration of the note is not stated in the petition, nor is there any prayer except for a general personal judgment against the defendant. To this petition the defendant answered, among other things, " that the note was not the property of the plaintift", but that of one Alexander Reynolds, and was given and executed under the following circumstances: — " At the time of such execution, and now, said Alexander Reynolds and defendant were husband and wife ; that the sole and only consideration for the said note was the execution of a certain quit-claim deed, a copy of which is attached, by which said Alexander Reynolds quit-claimed" all right, title and in- terest, whether " by dower or otherwise, to any and all the estate, whether real or j)ersonal, now held, or hereafter to be acquired," by the defendant ; and no other consideration what- ever than the execution of said deed entered into and formed a part of the consideration of said note ; that at the time the said note and deed were executed, the same were done by defendant and said Alexander Reynolds, with the design and view of a separation from each other, and a sundering, so far as said parties could, of the marital relations existing between them ; and the same was carried into effect by said Alexander leaving defendant and going to the State of Missouri, where he has continued to reside ever since about the time said note and deed were executed ; since which time said Alexander and defendant have ceased to cohabit and live with each other as husband and wife, although no divorce has ever been applied for by either of the said parties. The following is a copy of the deed referred to in, and made part of, the answer : " Enow all men by these presents, that I, Alexander Rey- 196 ILLUSTRATIVE CASES nolds, of the county of Jasper, and Slate of Iowa, in considera- tion of the sum of one thousand dollars, in hand paid me by Sarah F. Reynolds, my wife, do hereby sell and quit-claim unto said Sarah F. Reynolds, of Jasper County, and State of Iowa, all my right, title and interest, M-hether by dower or otherwise, to any and all the estate, whether real or personal, now held, or hereafter to be acquired, by the said Sarah F. Reynolds, and I do hereby further covenant with the said Sarah F. Reynolds, her heirs and assigns, for the quiet and peaceable possession of the above named property forever. " Witness my hand, this 7th day of January, A. D. 1868. (Signed) Alexander Reynolds." State of Iowa, i Jasper County, ) **' On this 7th day of January, A. D. 1868, before me, the un- dersigned, a notary public in and for said county, appeared the above named Alexander Reynolds, personally known to me to be the identical person whose name is affixed to the foregoing instrument as grantor, and acknowledged the same to be his voluntary act and deed for the purposes therein expressed. In testimony whereof, I have hereunto set ray baud. f (Signed) S. N. Lindsay, [l. s.] Notary Pvhlic. The plaintiff demurred to this portion of the answer, because, " 1. It shows that the defendant is liable on the note. " 2. The conveyance of the husband's dower interest is a suffi- cient consideration to support a promise. " 3. The husband can by deed convey to the wife his dower interest in lands, and such conveyance is valid. " 4. The answer does not allege an offer to return or surrender the deed." The Court sustained the demurrer, and the defendant electing to stand upon her answer excepted to the ruling of the Court, holding it to be insufficient, and appeals. The only error assigned is the ruling of the Court sustaining the demurrer to the answer. Seevers ^ CuUs, for the appellant. Winslow ^ Wilson, for the appellee. - , IN DOMESTIC RELATIONS. ' 197 Dillon, C. J. I. Aside from statute, the promissory note of a married woman is absolutely void at law, and no judgment can be rendered thereon against her : Jones v. Crosthwaite, 17 Iowa, 393, and authorities cited on p. 397. The case referred to examines the question how far the statute has removed the common law disability of a married woman to make contracts which shall be binding upon her at law and upon which a personal judgment may be rendered against her. Since then other cases have been decided respect-- ing the statute powers and rights of married women : Logan v. Hall, 19 Iowa, 491 ; Jones v. Jones, Id. 236 ; McCormick v. Ilolbrook, 22 Id. 487 ; Owen v. Owen, Id. 270 ; Richmond v. Tibbies, 26 Id. 474, but none of them touch the exact questions arising on the present record. It has been argued by the appellant, that in no case can the husband and his wife make a contract which can be enforced in an action at law, during the coverture, by the one against, the other. If we were prepared to assent to this broad propo- sition, it would, without more, determine the case in favor of the defendant. But we prefer to leave this point open, or where existing decisions have left it, and to decide this case upon the special circumstances set out in the answer. The undisputed doctrine of the common law is, that marriage annihilated the legal capacity of the wife to contract, she was not sui juris, was considered as sub potestaie viri and incapable of entering into contracts with her husband which would be of legal validity or which could be enforced at law against her. Of course, this incapacity exists except so far as it has been removed by statute ; and it was held in Jones v. Crosthwaite, that the statute did not intend to emancipate married women from all the disabilities of coverture. I would be willing to hold that there is nothing in our statute which has so far re- moved the incapacity of the wife to contract with her husband as to make her liable upon her promissory note given under the cii'cumstances stated in the answer; placing my judgment of reversal upon the ground of the disability of the wife as well as upon that of the want of consideration for the note. But the Court prefer to place its judgment upon the latter ground, both because the path is plainer and more free of difficulty, 198 ILLUSTRATIVE CASES and because it is the line of defence more particularly specified in the demurrer. AVe now proceed to examine the question whether the convey- ance of the husband's dower interest to his wife is valid, and constitutes a sufficient consideration for the note of the wife given therefor. (See demurrer.) This makes it necessary' to consider the nature of the dower interest, and the mode in which it can be released or transferred. If no separation is contemplated, it is not competent for the husband and wife as a matter of right to make a contract which shall be enforced at law, whereby the one shall, in consideration of a sum agreed to be paid, relinquish to the other all of his or of her right of dower in real estate then owned or thereafter to be acquired. No Court would so hold unless the law-making power should thus enact in language so plain as not to be mistaken. In view of the nature and purpose of the dower right, of the favor with which Courts have always regarded it, of the door to fraud or improvidence which would be opened, and of the disabilities of coverture and the ground of such disability, viz. : public policy and the protection of the wife, no Court would hold that this right, while it is inchoate and contingent, can be sold and bartered away by husband to wife, or wife to husband (for under the statute their rights are reciprocal : Eev. § 2513 ; Acts 1862), unless the language of the Legislature, which it was claimed conferred such a right, was so unmistakable as to be beyond the subtleties of construction. Aside from statute, it is a weli-established rule that a wife cannot relinquish her contingent right of dower except by join- ing with her husband in a conveyance to a third person ; or at least, after a sale and conveyance by him, executing to the purchaser from him a release or relinquishment. She could in no case release her contingent dower right to her husband. 'Eov, while it is contingent, can she disannex or disassociate it from the real estate to which it attaches, and bargain and sell or convey it as a separate and independent interest to a third person, or to her husband. These principles of law are so familiar as scarcely to need a citation of authorities to support them. See, however, Simms v. Ilervey, 19 Iowa, 272 ; and IN DOMESTIC RELATIONS. 199 authorities collated in 2 Scrib. on Dower, 290, pi. 43 ; Id. 291, et seq.; Carson v. Murray, 3 Paige, 483 ; Eowe v. Hamilton, 3 Greenl. 63 ; Martin v. Martin, 22 Ala. 86 ; Townsend v. Town- send, 2 Sandf. Sup. Ct. 711 ; White v. Wagner, 25 K Y. 328 ; Winaris v. Pebbles, 32 Id. 423 ; Bear v. Bear, 33 Pa. St. 525 ; Hengle v. Jones, 32 Id. 432. This is not upon the ground suggested by the defendant's counsel, that the dower interest is one of which no value can be predicated, but rests partly upon policj', and partly upon the peculiar nature of the dower interest, and the purposes for which this provision is made. Leaving out of view, for the present, how far the question may be affected by the element of an agreement between hus- band and wife to separate, I can find nothing in the legislation of the State which would justify the Court in holding that the Legislature had so altered the nature of the dower right, or so enlarged the capacity and power of husband and wife respect- ing it, as to hold that it could, during the coverture, become the subject of valid grants and conveyances from one to the other. The proposition that the law authorizes this to be done will justify the use of but little time in refuting it. In finds no support in sections 2255 and 2256, because these contemplate conveyances to third persons in which " the wife has joined with her husband." The section mainly relied on is 2255 (§ 1207 of the Code), which provides that "a married woman may convey her in- terest in real estate in the same manner as other persons." ' Eespecting this section it was said in Simms v. Hervey, 19 Iowa, 273, 287, that it "accomplishes two things: First, it removes the common law disability to convey ; and, second, it points out the mode of conveyance, the same as if she were sole." It would be a most unwarrantable construction to hold that this section not only removed the disability of coverture as respects the conveyance of her interest in real estate, but that it endowed her with capacity to make a contract with her husband to buy his dower right, give him a note for the price ao-reed on, upon which she might be sued if she did not pay it. 200 ILLUSTRATIVE CASES It is our opinion that, aside from the effect of an agreement to separate, there is nothing in the statute which invests the wife with the legal right to grant to her husband her inchoate right of dower; nor has the husband the legal right to grant to his wife his contingent dower interest ; and a note given therefor by the wife is not binding upon her at law so as to be the basis of a personal judgment against her. What we hold is, that the law does not recognize the right of husband and wife during coverture to make valid and bind- ing contracts to convey or release the dower right of one to the other. By this we do not mean to deny that if such contracts are fairly made and acted on, that equity will not in some in- stances and in order to prevent injustice treat them as valid or estop the husband or wife to controvert their validity. It follows that the deed by which the husband undertook to convey his contingent and inchoate dower right to his wife was inoperative ; that it would not have the effect to defeat his dower right or invest his wife with it, and hence the note of the wife executed therefor would be without sufficient consid- eration to support it. ISTor would she be liable on her note given under such circum- stances because of a failure to surrender or return the deed. This brings us to consider how the rights of the parties are affected by reason of the agreement of the defendant and her husband to separate, in pursuance of which the deed and note were executed. It is alleged in the answer that the parties agreed to separate ; that the husband executed the deed con- veying or releasing all of his right in and to the real estate then owned by the wife or thereafter to be acquired ; that in consid- eration thereof she executed the note in suit, and that the parties have since resided apart, though no divorce has ever been applied for or granted. Are such agreements to separate valid, and what effect does the law give to them ? And here the answer which we find in the books is not, in principle, what, if the law were yet to be settled, we should suppose it ought to be. The marriage relation creates the homes of the land, and it alone can effectively secure the care, nurture, and education of the children. It is, therefore, one of the chief foundations upon IN DOMESTIC RELATIONS. 201 which rest the civilization, the prosperitj', the stability, the good order and happiness of society. The State, therefore, encourages marriages, and, after the marriage relation is en- tered into, is interested in maintaining it unbroken. Parties cannot be divorced at ■will, but only for specific causes of a grave character deemed by the Legislature sufficient. This is the wise doctrine of the law on the subject ; and the reasons upon which it is founded have nowhere been more felicitously expressed than by Loed Stowell, in his much-admired judg- ment in Evans v. Evans, 1 Hagg. 35 ; 4 Eng. Ecc. 310 : " The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. This disinclination must be founded upon reasons which the law approves. " To vindicate the policy of the law is no necessary part of the office of a Judge ; but if it were, it would not be difficult to show that the law, in this respect, has acted with its usual wisdom and humanity — with that true wisdom and that real humanity that regards the general interests of mankind. For though, in particnlar eases, the repugnance of the law to dis- solve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. Where people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake otF; they become good husbands and good wives, from the necessity of remaining husbands and wives ; for necessity is a powerful master in teaching the duties which it imposes. If it were once under- stood that, upon mutual disgust, married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness — in a state of estrangement from their common offspring — and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must 202 ILLUSTRATIVE CASES be sacrificed to the greater and more general good." See, also, Schindel v. Schindel, 12 Md. 294. Such are the wise and just principles of the law respecting the marriage institution and the marriage relation. Being so, one would suppose that all agreements and all parts of agree- ments looking to a separation between husband and wife would be treated as absolutely void and illegal as contravening the policy of the law. But such is not the ease. The law will not sanction an agree- ment contemplating a future separation, nor enforce an agree- ment to separate if one of the parties is unwilling to do so. But where a present separation is resolved upon and an agree- ment has been fairly entered into between husband and wife as to the property and terms of separation, and this has been afterward carried out in good faith by one of the parties, the law will, in many cases, and where justice demands it, hold the other party to it. This anomalous and somewhat exceptional doctrine had been so long established and so many times affirmed, as long ago as Lord Eldon's time, that he would not entertain the question made to its soundness. Usually such agreements are entered into by means of trus- tees, but equity, which is not strenuous of forms, does not necessarily require this formality : Bouslaugh v. Bonslaugh, 17 Serg. & Rep. 361. The doctrine of the law concerning the validity of agree- ments to separate is clearly and briefly stated in the case of liutton V. Duey, 3 Penn. St. 100, 1846. In that case the husband and wife signed articles of separa- tion without the intervention of trustees ; the husband executed the contract on his part, and the parties lived separate and apart until he died, when the wife preferred a claim for one- third of his estate. The claim was denied, the Court giving therefor the following reasons : " Deeds for the separation of husband and wife are valid and effectual, both at law and in equity, provided their object be an actual and immediate and not a contingent or future separation. This distinction runs through all the cases, and, although the wisest Judges have frequently asserted that deeds of separation are at variance with the policy of the law, it is now too firmly IN DOMESTIC KELATIOJiS. 203 settled to be shaken. The agreement here (in the case before the Court) contemplates an immediate separation, has nothing unreasonable in it, and, consequently, the wife, after the death of the husband, is not entitled to the aid of the Court in any attempt to violate it. A wife can acquire a separate property which a Court of equity will protect. At law, no contract can be made between husband and wife without the intervention of trustees; for she is considered as being sub poiesiate vi?'i, and incapable of contracting with him. But in equity, when the contract is reasonable and has been consummated, it Vi'ill be upheld, without the intervention of trustees." Approved, in Dillinger's Appeal, 35 Penn. St. 357, 1860; see also I3onslaugh V. Bonslaugh, 17 Serg. & R. 861 ; Walsh v. Kelley, 34 Penn. St. 84; Patterson v. Robinson, 25 Id. 81 ; Story's Eq. §§ 1372, 1427, 1428. So in the case at bar. Although the law does not recognize in the husband the legal right to make a valid and effectual grant to his wife of his inchoate and contingent dower right in her property, yet, if, in pursuance to an agreement to separate, he does so, and she pays him a consideration therefor, neither law nor equity would allow him, after her death, to set up a ri^ht to dower in her real estate. But she cannot be compelled by action to pay the considera- ation. If she chooses to pay it, and it is accepted, the law will estop the husband to disregard the agreement. But if she does not pay, the husband's right isnot affected by the deed, because, as we have before seen, it is inoperative to bind him as a mere grant, and because there is no equity existing in favor of his wife, she having paid no consideration to make it bar him by way of estoppel. In perfect accord with these views is the decision in Blake v. Blake, 7 Iowa, 56. There the parties had separated, the hus- band had obtained a decree of divorce, subsequently the wife obtained a decree for alimony ; the husband, instead of appeal- ino- or litigating, agreed to secure the amount by mortgage, which he did in consideration of receiving a relinquishment of his wife's dower interest ; the husband kept the agreement and paid the money thereunder faithfully ; no fraud or unfairness was shown, and, after his death, she claimed her dower, and it 204 ILLUSTRATIVE CASES was held, and most properlj- so, that, under these circumstauces, the Court would not assist her to violate the agi'eement she had made. The general remarks of the Chief Justice who delivered the opinion, as to the rights and powers of the wife, are to be taken in connection with the facts of the cause under consideration, and limited by them. The present action, it will be remembered, is one at law on the note, and seeking a personal judgment against the wife thereon. It is our opinion that upon the facts set up in her answer she is not liable. Contracts made between husband and wife, and rights ac- quired by virtue thereof, can best be settled, and except where the rule is changed by the statute, must be settled in a Court of equity, which can adapt itself in the relief granted and in that denied, to the ever varying circumstances of the cases as they arise. The Court erred in sustaining the demurrer to the answer, and in rendering judgment against the defendant. Its judg- ment IS reversed, and the cause remanded. Reversed. Sell. s. 215, 216, 217, 218 ; Evans v. Evans, 1 Hagg. 35 ; Scliindel v. Schindel, 12 Md. 294 ; Bonslaugh v. Bonslaugh, 17 Serg, & R. 361 ; Hutton V. Druey, 3 Penn. St. 100. But deeds for separation of hiisband and wife are valid and effectual in law and equity if their object be actual and immediate, and they do not look to a future separation. IIitnee's Appeal. Supreme Court of Pennsylvania, 1867. 54 Pa. St. 110. Read, J. In Wilson v. AVilson, 5 House of Lords Cases, 59, Lord St. Leonards said : "As regards the point of law, I think IN BOMESTIC RELATIONS. 205 there ought to be no doubt, and can be no doubt now enter- tained as to how that stands. It is peri'ectly and clearly settled and now only to be reversed by Act of Parliament that deeds of separation may and must, if they are properly framed, be carried into execution by the Courts of this country. There is no question at all about that." After explaining a misappre- hension as to some expressions used by Lord Cottenham, he said : " I only mention it in consequence of what has fallen from my noble and learned friend who has preceded me, be- cause it must not be doubted that the law of this country is that deeds of separation are valid and will be carried into execution." The same doctrine is distinctly stated in a former hearing of the same case by Lord Cottenham, 1 Id. 572, citing Jones v. Waite, 9 Clark & Fiunelly, 109, and the language of Lord Chief Justice TiNDAL in delivering the opinion of the Judges in that case. In Pennsylvania this rule has been adopted in its fullest ex- tent. In Hutton v. Hutton's Administrators, 3 Barr, 100, Judge EoGERs said : " Deeds for the separation of husband and wife are valid and effectual both at law and in equity, provided their object be actual and immediate, and not a contingent or future separation." And in Dillinger's Appeal, 11 Casey, 357, the same doctrine is maintained and carried out, excluding the widow from all dower and interest in the real and personal estate of her husband agreeably to the deed of separation. In August, 1858, Isaac Boyd, then upwards of sixty-five years old, married Annie R. Murray, who was about forty 3'ears younger, and in May, 1855, a son was born and named Joseph P. P. Boyd. For many years previous to his marriage, Mr. Boyd went to Cuba, where he had considerable property, in ]S[ovember or December in each year, and returned the fol- lowing June or July. After their marriage they lived together until his return to Cuba in ]S"ovember or December, 1858; Mrs. Boyd spending that winter in this cit}'. In the spring or summer of 1859 he returned to Philadelphia. Mr. and Mrs. Boyd lived in this city during that summer, he getting his meals at Bloodgood's Hotel, but passing the nights with his wife at her brother's house, where she then boarded. In No- 206 ILLUSTRATIVE CASES vember, 1859, he again went to Cuba, leaving her and her son here, with orders upon his agents here for the means of her sup- port. In July, 1860, he returned to this city, and very shortly after this a difficulty arose between him and his wife which must have been of a serious character, as during that summer he did not sleep at the house where his wife boarded, and on the 7th of jSTovember, 1860, a deed of separation was executed by them and a trustee appointed. This instrument in its recital speaks of "domestic confidence and reciprocal affections existing no more," and all its provi- sions look to an entire and permanent separation of the hus- band and wife, and a permanent provision for the wife by the conveyance of certain real and personal estate to the trustee absolutely. There is also the usual provision for her living separate and apart as if she were a feme sole, and that he shall not visit her without her consent. He is not to be liable for her debts, or for alimony, and she covenants not to claim any right or title to any real or personal estate of which said Isaac Boyd may be seised or possessed, or any part thereof. On the 25th of May, 1861, her brother, William Murray, be- came the trustee in this deed in the place of Mr. Eardraan. A correspondence took place between Mr. and Mrs. Boyd between the execution of the deed and the substitution of her brother as her trustee, commenced by her, but which has no eftect upon the questions in this case. It appears that from the 7th of E"ovember, 1860, until his death in August, 1863, he was only three or four times at Mr. Murray's [house], where his wife lived, and not at all in 1863. There is an effort, however, to show a reconciliation in 1861, based upon his passing one night in his wife's room at her brother's house. The evidence as to the time when this took place, whether before or after the deed of sei:)aration, is neither clear nor satisfactory. The Auditor says, "After the execution of the articles of separation, it does not appear that he saw his wife for a period of six weeks ; in fact, it is not clear that he saw her until after his return from Cuba, a period of over six months, and only three or four times in all after their execu- tion. The real difficulty in the case, both of fact and of law, arises upon the second point. The evidence shows that the IN DOMESTIC RELATIONS. 207 testator visited his wife once or twice each year after the sepa- ration, except the year 1863, in which he died ; also that he corresponded with her several times, the last letter dated May 1, 1861; also that he passed one night in her chamber after the execution of the articles of separation. The evidence of this, however, is not as positive as might be. Do these acts, with- out more, constitute in law a violation of the articles of sepa- ration ?" • The said Isaac Boyd " shall not nor will, without the conseM of the said Annie R. Boyd, visit her or knowingly come to any place or house where she may dwell, reside or be, nor send, or cause to be sent, any letter or message to her." " With the consent of his wife the testator could commit any of the acts proven against him, and not violate the covenants just quoted. There is no evidence whatever that she objected to any of said acts, or that the slightest coercion was used by the testator. Her consent can fairly be inferred. Jir. Oowen appealed to the doctrine of reconciliation in support of the position that the articles of separation were abrogated, but upon an examination of the numerous authorities cited, I am satisfied that a manifest intention of the parties to live together again as man and wife must be shown, and the evidence in this case does not show any such intention." This is a correct statement of the law, and the conduct of both parties shows clearly there was no reconciliation, and no determination or wish or desire to live together again as man and wife. The wife acted under the deed of separation, and has always received the income of the real estate and all the per- sonal estate up to the present time. The theory of reconcilia- tion, waiver, or abandonment, would have invalidated this deed, but she has never evinced any wish or intention to act upon this view of the question. So, after seeing her husband but three or four times in two years, she never seen him at all during the year in which he died. She believed the separation was com. plete and the deed inviolate, and it is clear the testator so thought and acted. The acts of both parties showed that both believed they were as completely separated as two per- sons could be who were still in strict law man and wife. 208 ILLUSTRATIVE CASES We are therefore of opinion that the Auditor was right in his decision upon this question. But it is assigned for error that Mrs. Boyd, now Mrs. Appel- dorn, was rejected as a witness. Mrs. Boyd, by deed dated 15th of JSTovember, 1864, conveyed to Daniel 0. Hitner all her interest in the estate of Isaac Boyd, as his widow, in trust for her son, Joseph P. P. Boyd ; " but if the said Joseph P. P. Boyd should die before attaining his majority, then to grant, convey, and transfer the said estate, real and personal, absolutely free from all trust, to the heirs and distributees of the said Joseph P. P. Boyd, under the intes- tate laws of Pennsylvania, in the proportions and for the estates to which they would have been entitled to the same if the said Joseph P. P. Boyd had died seised and possessed of the said real and personal estate." This case, comes clearly within Post v. Avery, 5 W. & S. 509, and the cases which have followed it. This deed assigns the distributive share in her husband's personal estate, which she claims as his widow, and is dictinctly ruled by Haus v. Palmer, 9 Harris, 296. Besides, under the provisions of this deed, if the cestui que trust, her son, dies under age during her lifetime, the estate thus assigned reverts to her as his heir and next of kin under the intestate laws. This may not be an interest to exclude the witness, but affords a moral support to the legal cause of her rejection. The Auditor assigns another reason for her exclusion, which is supported by great authority. Taylor, in his Treatise on the Law of Evidence, vol. 1, p. 787, says : " The old common-law rule, which precludes husbands and wives from giving evidence for or against each other, has been construed by the Judges to mean that whatever had come to the knowledge of either party by means of the hallowed confidence which marriage implies, could not afterwards be divulged in testimony, even though the other party were no longer living." This is clearly laid down in O'Connor v. Majoribanks, 4 M. & G. 435 (43 E. C. L. R.), after a full argument, by the Court of Common Pleas, C. J. Tindal and the other Judges not confining the rule to cases where the communications between the hus- IN DOMESTIC RELATIONS. 209 baud and wife were of a confidential nature, and holding the evidence of the widow was improperly admitted. The same rule is laid down by Phillips & Arnold, vol. 1, p. 66 (6th ed.) : " The reason for excluding the husband and wife from giving evidence either for or against each other is founded partly on their identity of interest and partly on a principle of public policy which deems it necessary to guard the security and confidence of private life even at the risk of an occasional failure of justice." " And this extends to cases where the mar- riage is dissolved by divorce or death, and is not confined to confidential communications. The same doctrine is clearly stated by Greenleaf, vol. 1, §§ 254 and 334, and it is so ruled by the Court of Appeals of New York, in Hasbrouck v. Vandervoort, 5 Seld. 153, notwith- standing the provisions of the Code of 1849, making interested persons witnesses. Judge Johnson traces the rule from Coke Litt. 6 b, to Alcock V. Alcock, decided by Vice-Chancellor Parker in 1852 (12 Eng. L. & Eq., R. 854, 10 Jur. 653). The rule is also so stated by Judge Rogers in Cornell v. Vanartsdalen, 4 Barr, 374, and by the Supreme Court of the United States, in Stein v. Bowman, 13 Peters, 221, 222, 223. The w^itness was therefore properly excluded by the Auditor; and it is very doubtful whether, if she had been admitted, her evidence would have strengthened the plaintiff's case. The decree of the Orphans' Court is affirmed. Stewart M. & D. 199 ; Wilson v. Wilson, 5 H. L. 40 ; Jones v. Waite, 9 Clark & Pinnelly, 109 ; Dillinger's Appeal, 11 Casey, 357'; Walsh v. Kelley, 34 Pa. St. 84 ; Story's Eq. s. 1372, 1427, 1428. 14 210 ILLUSTRATIVE CASES Divorce. The State may at any time, for any cause it pleases, without regard to the laws of the time or place of the marriage, dissolve the marriage of any person domiciled within its jurisdiction. BiGELOW V. Bl&ELOW. Supreme Court of Massachusetts, 1871. 108 Mass. 38. Chapman, C. J. At the April term, 1865, the petitioner's wife obtained against him a decree of divorce from bed and board for utter desertion. By Gen. Sts. c. 107, § 10, after they should have lived separately for five consecutive years after- wards, she might obtain a decree of divorce from the bond of matrimony ; and after they should have lived separately for ten consecutive years either party might obtain it. By § 26, after such divorce from the bond of matrimony, this Court, upon the petition of the party against wliom it was granted, might au- thorize such party to marry again. But the St. of 1870, c. 404, § 1, provides that all parties divorced from bed and board at the time of the passage of the Act shall be in the same legal condition as if divorced nisi under the provisions of that Act. That condition is that if '" they shall continue to live separately for five consecutive years next after the decree, the Court shall, upon proof thereof, make the decree absolute. There is a further provision that the Court may make such decree absolute at any time after the parties shall have lived apart for three consecutive years after the de- cree nisi. The statute does not specify which of the parties shall make the proof; but in the opinion of a majority of the Court its just construction permits either party to do so. It repeals Gen. Sts. c. 107, §§ 9, 10, 38, and thus takes from the party, against whom the first decree was made, the power to obtain the decree there provided for after the lapse of ten years. Unless, therefore, it permits that party to apply to have the IN DOMESTIC RELATIONS. 211 divorce made absolute, it utterly takes from him the power to apply to this Court for leave to marry again. Obviously this was not the intent of the Legislature. The right to have the decree nisi made absolute is substituted for the right given by the General Statutes. There is no doubt of the power of the Legislature to regulate divorces by general laws, and no rights of either jiarty are taken away by limiting or extending the time for applying to have the decree made absolute as a divorce from the bond of matrimony. As such decree will not be granted without notice, the party who obtained the first decree has opportunity to come in and protect her rights ; and the other party will have no right to marry again without making application to the Court and obtaining authority to that effect, lu this case the wife has had notice, and does not oppose the petition. Decree of divorce nisi made absolute. Stewart M. & D. s. 104 ; Penoyer v. Neff, 95 U. S. 714, 734, 735 ; Hunt V. Hunt, 72 jST. Y. 217 ; Green v. State, 58 Ala. 190, 193. If it were possible, it would not be within the scope of a book of this nature to give the conflicting principles of the decisions and legislation of the various States upon the subject of divorce. It is, therefore, not attempted, the student being expected to familiarize himself with the divorce law of his chosen State. See Gen. St. Minn. s. 6-41, Inc. Title (1) Title 2, c. 62 s. 78. 212 ILLUSTRATIVE CASES II. PAREN"T AND CHILD. 1. Children. Presumptions. The legal presumption is that a child born during wedlock is legitimate; illegitimacy can be established only by clear proof, Egbert v. G-reenwalt. Supreme Court of Michigan, 1880. 44 Mich. 245. Graves, J. Greenwalt recovered for alleged criminal con- versation with his wife. The suit was in the common form of an action on the case, and was commenced in August, 1878. The trial took place in February, 1879. The whole testimony to prove the imputed intercourse and establish the cause of action was given by Greenwalt and his wife. The act was represented as one to which she was an involuntary party, and as having been accomplished against her will by actual force and over the stoutest resistance of which she was capable. It was referred to some day in December, 1877, earlier than the 27th. Egbert testified for himself and positively denied having had intercourse with her at any time. It was claimed for Green- walt that the injury inflicted by his wife's violation was aggra- vated by her being left pregnant ; and the Court overruled the defendant's objections and permitted her to testify that her husband, in consequence of having fever and ague, did not sleep with her for some time prior to the defendant's connection with her, and had not slept with her since ; that soon after the occurrence she discovered she was pregnant, and then informed her husband that the child was defendant's ; that it was born the 23d of August, 1878. The plaintiff testified that he did not sleep with her for three months ; that in the latter part of IN DOMESTIC RELATIONS. 213 June, 1878, he noticed his wife's situation, and she then con- fessed to him. But he had continued since to live and cohabit with her. The record contains a general exception to the Court's re- fusal to consider the evidence sufficient to bar the action. It is too vague to deserve notice. But as counsel adverted to it, a few words may not be amiss. The point of the objection is. understood as being that the nature of the action excluded the idea of violence and contemplated that the wife's participation was voluntary and not forced, and that as the case made by the evidence negatived her consent and proved that she was de- bauched by violence, the action failed. The position is not tenable. The common law, in giving this remedy, instead of making the husband's right of action depend on his wife's having consented to her ■ defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force, and the action has been sustained just the same, whether as matter of fact her will concurred or she was outraged by actual violence : Bac. Ab. Marriage and Div. 551-553; 3 Bl. Com. 139; 1 Chitty PL (7th Eng. 16th Am. ed.) 140, 141, 150, 151, 188; Broom's Com. 847, 848 ; 2 Hilliard on Torts, 507 ; Forsythe V. State, 6 Ohio, 23. And there seems to be no basis injustice or policy for the position that if the personal wrong is accom- panied by circumstances of such atrocity as to elevate it to the public offence of rape, the private remedj' is thereby either taken away or suspended : Cooley on Torts, 86 to 90. It is not reasonable to convert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt seems to have recognized the principle that both remedies were admissible in a case of actual violence ; and alluding to an attempt to carve out cause for a third pro- ceeding to be carried on in the Bishop's Court, he said : " If a man solicit a woman, and goes gently to work with her at first,' and when he finds that will not do, he proceeds to force, it is all one continued act, beginning with insinuation and ending with force:" Rigaut v. Gallisard, 7 Mod. 78. In view of the rulings made on admitting evidence and in charging the jury it is unquestionable that the verdict must 214 ILLUSTRATIVE CASES have been much influenced, if not determined, bj the state- ments tendered on the part of the plaintiff and his wife and received by the Court for the purpose of causing the jury to believe that they had no sexual intercourse at the time the child was begotten, and that the wrongful act of the defen- dant must have been the occasion of her condition, and this evidence in my opinion was not admissible. The parties were living amicably under the same roof and there was no serious obstacle to intercourse. There were such access as gave oppor- tunity. That is not denied, and as matter of fact it was not as- serted that intercourse did not take place. It is not perceived that the wife's being admitted as a wit- ness was objected to ; and assuming, for this case, that she was entitled to be called, it does not follow that her personal knowl- edge of whatever in itself might be pertinent to the issue, was rendered provable by her if objected to. The difierence is wide between the competency of one to be a witness in a given case, and the right to use the witness to prove certain facts in his or her knowledge, however proper such facts may be in their own nature. There may be no ground whatever for excluding the person from the stand ; but there may be sound reasons for refusing to permit him or her to swear to certain things or on certain subjects. The system of legal evidence has afforded always, and affords still, many illustrations. The stat- ute offers an example where it excludes certain communica- tions unless their disclosure is mutually assented to. According to an ancient rule of the common law, the evi- dence of neither husband nor wife could be received to dis- prove the fact of sexual intercourse : Eex v. Book, 1 Wils. 340 ; and Lord Mansfield declared that it was " founded in decency, morality, and policy:" Goodright v. Moss, Cowper, 591 ; and no Judge or author has ever dissented from his strong approval. The reason of the rule has prescribed limits to its application, but there is no present occasion for special reference to any of the qualifications. That the Legislature intended to abrogate it is not to be assumed. No one will con- tend that the course of the legislation of 1861 was unfriendly to it, nor can it be fairly argued that the terms or spirit of the amendments then made have supplanted it. The general pur- IN DOMESTIC KELATIONS. 215 pose the Legislature had in view was to sweep away a number of objections against the competency of witnesses, but not to break down any rule " founded in decency, morality, and policy ;" and so far as ascertained the Courts, wherever these general changes have taken place, have considered this rule of the common law as untouched : Tioga County v. South Creek Township, 75 Penn. St. 436 ; Boykin v. Boykin, 70 N. C. 262 ; Chamberlain v. People, 23 N. Y. 88 ; People v. Overseers of Ontario, 15 Barb. 286 ; Hemmenway v. Towner, 1 Allen, 209 ; Stephens' Ev. art. 98. The effect of the statute upon the capa- bility of the wife as a witness for the people in a prosecution against a person for having committed adultery with her, was fully discussed in Parsons v. People, 21 Mich. 509 ; but it was not found necessary to consider the present questions. I think the evidence of the plaintiff and his wife which was adduced to show non-intercourse between them was not admissible. AVhether some items might have not gone in for some other purpose need not be considered. They were offered and al- lowed to disprove sexual connection between the husband and wife, and establish as a necessary alternative that the defendant begot the child. But let it be assumed that the evidence was lawfully before the Court and jury, and then I think it was destitute of all force to prove non-intercourse, and that the Court should have charged the jury to that effect. It was a maxim of the Roman law, and one which the common law copied, that the presump- tion is always in favor of legitimacy : Co. Litt. 126 a ; and that he is the father whom the marriage indicates : Co. Litt. 128 ; Domat pt. 1 b, 3, t. 6, § 5 ; and Montesquieu, alluding to it, observed that " the wickedness of mankind makes it necessary for the laws to suppose them better than they really are. Thus we judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if she were chas- tity itself:" Spirit of the Laws, B. 6, c. 17. And D'Aguesseau laid it down that " whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality." Geernleaf says that where the husband and wife cohabit to- gether as such, and no impotency is proved, the issue is con- clusively presumed to be legitimate, though the wife is proved 216 ILLUSTKATIVB CASES to have been at the same time guilty of infidelity : 1 Ev. sec. 28. The current of authority is in favor of qualifying this statement, and instead of regarding the presumption as con- clusive, to require it to apply with great force, but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary : Morris v. Davis, 5 01. & Fin. 163 ; Wharton's Ev. §§ 1298, 1299, 1300 ; Best's Ev. (Wood's ed.) 426, 464, 465 ; Stephen's Ev. art. 98. In the case of the Banhvry Peerage the House of Lords dealt with the presumption and the degree of evidence necessary to overcome it in this language: " In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is pre- sumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time when, by such intercourse, the husband could, according to the laws of nature, be the father of such child :" 1 Sim. & S. 155. And in Bury v. Phillpot, the Master of the Rolls, afterwards Lord CoTTENHAM, Tuled that when opportunity existed for sexual intercourse within such period that the child in question might have been begotten by the husband, mere probabilities can have no weight against the legal inference ; 2 Myl. & K. 349 ; and see Kleinert v. Ehlers, 38 Pa. St. 439 ; Dennison v. Page, 29 Id. 426 ; Hargrave v. Hargrave, 9 Beav. 552. To overcome the presumption and disprove intercourse there must be cogent facts and circumstances : Head v. Head, 1 Sim. & S. 150 ; Patterson v. Gaines, 6 How. 550. In Stegall v. Ste- gall. Chief Justice Marshall held that whilst it was not neces- sary to make out that connection was not possible, it was proper that the evidence should establish its non-occurrence beyond all reasonable doubt : ,2 Brock. 256 ; g,nd the Supreme Court of Massachusetts applied the same rule in Sullivan v. Kelly, 3 Allen, 148 ; see also Phillips v. Allen, 2 Allen, 453 ; Hemmenway v. Towner, swpra ; Cross v. Cross, 8 Paige, 139. ^ Here, as already noticed, there was neither proof of inability nor of the certain want of opportunity, or even the faintest ap- proach to a denial of the factj, and the cLild was born only IN DOMESTIC BELATIONS. 217 eight months after the alleged violence. The circumstances permitted the assignment of the paternity of the child to the plaintiff without any infringement of the statements sworn to, and the Court should have told the jury, as I think, that there was no legal evidence that the plaintiff was not father of the child, and that it was their duty to consider that he was. Some other matters have been referred to, but as the hearing has been ex parte, no one having appeared to support the judg- ment, it is deemed best to dispose of the case without going further. The judgment must be reversed, with costs, and a new trial granted. The other Justices concurred. Wright V. Hicks, 15 Ga. 160 ; 111. L. & L. Co. v. Bonner, 75 111. 315 ; Hargrave v. Hargrave, 9 Beav. 552 ; Patterson v. Gaines, 6 Hun, 582 ; Sch. s. 225. Illegitimate children are legitimatized by the subse- quent marriage of their parents with each other. Miller v. Miller. Court of Appeals, ISTew York, 1882. 91 N. Y. 315. Miller, J. By the statute of this State the real estate of an intestate passes in the first instance to his lineal descendants : 1 R. S. 751, §§ 1 and 2. It is also provided that " children and relatives who are illegitimate shall not be entitled to inherit:" 1 R. S. 754, § 19. The plaintiff is a child of the deceased under whom he claims and one of his lineal descen- dants. He was born in the kingdom of Wurtemburg in the year 1845, before the marriage of his parents, and the question to be determined is whether he was legitimate at the time of the death of his father. At the time of his birth his father and mother were domiciled and resided in Wurtemburg. A statute found in the laws, of 1610 of that kingdom at title 17, 218 ILLUSTRATIVE CASES § 4, is as follows : " Whatever is decreed in the foregoing title regarding the inheritance of children born in lawful wedlock shall be applicable also to such children as are begotten of two persons unmarried ( but not too closelj related for their betrothal or lawful conjugal cohabitation), and who first became legitimate by a subsequent marriage of their parents, shall be held equal to those children who are born in lawful wedlock as regards the right of inheritance from its parents, brothers, and sisters and other relatives as in all other respects." Any subsequent marriage of the parents of the plaintiff would, therefore, render him legitimate at the place of his birth and the domicile of himself and parents — Wurtemburg, and if the father had resided at Wurtemburg at the time of his decease, plaintiff would have been one of his lawful descendants, the same as though he had been born in wedlock. The plaintiff" with his parents subsequently removed to the State of Pennsylvania, and his father became a citizen of the United States by naturalization, and while domiciled there and in the year 1853 his parents were lawfully married. In 1862 the family removed to this State, where they lived until the death of the father in 1875. The real estate in question was purchased by plaintiff's father after his removal to this State, and he owned the same in fee at the time of his death. We think that by the law of the domicile of the plaintiff's birth, Wurtemburg, and by the subsequent marriage of his parents, the plaintiff was legitimated in the State of Pennsyl- vania, Be that as it may, however, in the year 1857 a law was passed by the Legislature of the State of Pennsylvania which declared that : " In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of holy wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents." (See Brightley's Purdon's Digest [ed. 1873], 1004, § 9.) The above Act was followed by an Act passed in 1858, by which the provision cited was made applicable to all cases arising prior to 1857, unless some interest had become vested. As the real estate which is the subject of this con- troversy had not been acquired prior to the Acts referred to, IN DOMESTIC RELATIONS. 219 no vested interest existed wliicli conflicted with tlie Acts cited. It is very evident that the plaintiff, after the passage of the above laws, was a legitimate child, and entitled to all the rights and privileges of a lineal descendant of his parents. If his iather had died in the State of Pennsylvania seised of real estate, it cannot be questioned that any doubt would arise in regard to his claim thereto. He was invested with all the rights of a citizen entitled to inherit such portion of his father's estate as the law allowed to legitimate children. Occupying this position, can it be said that the plaintiff lost such right because his father moved out of the State of Pennsylvania and located in the State of New York ? Could he be legitimate in one State and illegitimate in another? Such a rule would render the right of inheritance, sanctioned by the law of the State where he resided, one of great uncertainty and fluctua- tion, and in many cases it would operate so as to produce great injustice. While the power of the Legislature is paramount unless restricted by constitutional authority, it should not be upheld where its effect may be to produce great wrongs, unless imperatively demanded. Any other rule would leave the plaintiff, whose status was fixed by the laws of Pennsylvania, subject to the change of statutes in any State where he might have occasion to reside, whose laws diflered from the former State. Assuming that the plaintiff" by the laws of the State of Pennsylvania was legitimate, the question arises whether that legitimacy was carried with him when his father and family removed to the State of 'New York. If the plain- tiff' labored under any disability in the State of New York, it arose by reason of the provisions of law contained in the statutes of that State already cited : 1 E. S. 754, § 19. The law-making power can declare a child born to be legiti- mate or illegitimate, and it is only that power which fixes and determines the status of children born. If born before mar- riage, the Legislature can remove the disability of all its illegiti- n)acy, and by its transcendant power can legitimize and make capable of inheriting the illegitimate child : Blackstone, 4 Inst. 36. If this had been done by an Act of the Legislature of the State of New York, no question could arise as to the legitimacy of the plaintiff or his right to inherit. The statutes of this 220 ILLUSTEATIVE CASES State, to which we have referred, do not contain the words " born out of wedlock," or the word " bastard." The English statute of Merton, so-called (20 Hen. 3, chap. 9), not only required that a child, in order to inherit, should be legitimate, but also that " he should be born in lawful wedlock as well." This constitutes a marked difference between that statute and the statute of this State cited sufra. Legitimacy, which was conferred upon the plaintifi' by the laws of Pennsylvania, to which reference has been had, constituted a portion of his rights, and accompanied him wherever he might reside. Being legitimate in the State of Pennsylvania, he continued so in every State and in every country where he chose to establish his residence. The rule seems to be well settled that the law of the domicile of origin governs the state and condition of a person in whatever country he may remove to. The status of legitimacy which arises under the law of one nation is recog- nized by other nations according to the authorities. Story lays dowu the rule in his Conflict of Laws (§ 93), that " foreign jurists generally maintain that the question of legitimacy or illegitimacy is to be decided exclusively by the law of the domicile of origin." He also says at section 93b : " It seems admitted by foreign jurists that as the validity of the marriage must depend upon the law of the country where it is celebrated, the status or condition of their oiFspring, as to legitimacy or illegitimacy, ought to depend on the same law, so that if by the law of the place of the marriage the oflFspring, although born before marriage, would be legitimate, they ought to be ' deemed legitimate in every other country for all purposes what- ever, including heirship of immovable property." Wheaton, in his Law of Nations, at page 172, says: "Legitimacy or illegitimacy are among universal personal qualifications, and the laws of the State aflecting all these personal qualities of its subjects travel with them wherever they go and attach to them in whatever country they may be resident." The general current of authority favors the doctrine that where an illeo-iti- mate child has been legitimated by the subsequent marriage of its parents according to the laws of the State or country where the marriage takes place and the parents are domiciled, such legitimacy follows the child wherever it may go. This rule • In domestic relations. 221 is, as we have seen, fully sustained by the authorities to which we have referred. The learned Judge Story, in his " Conflict of Laws," devotes nearly the entire fourth chapter, and no in- considerable portion of the work, to the consideration of the question involved in the case at bar, and he asserts the rule, that if a person is legitimated in a country where domiciled, he is legitimate everywhere, and entitled to all the rights flowing from that status, including the right to inherit. He arrives at this conclusion after an examination and exhaustive discussion of the subject, and after a comparison of the views of different writers upon civil law, quoting extensively from the same. In support of the same general doctrine which has been dis- cussed are the following authorities: Smith i). Kelly's Heirs, 23 Miss. 170 ; Scott v. Key, 11 La. Ann. 232 ; E-oss v. Ross, 129 Mass. 243 ; In re Goodman's Trust, Law Reports, 17 Chancery Div. 266 ; Van Voorhis v. Brintnall, 86 IST. Y. 18 ; 40 Am. Rep. 505. The decision of this Court might well rest upon the principle asserted in the authorities already cited without regard to the cases which are claimed to hold a contrary rule. It is enough to say that the right of inheritance under circumstances like these here presented rests upon a principle which is founded upon a rule of ancient origin, reasonable in itself and in accord- ance with the well-being of society and a due regard to the right of persons, and that it is fully sustained by the weight of authority. The celebrated case of Bird whistle v. Vardill, re- ported in 11 Eng. C. L. 266, also in 2 Clark & Fin. 581, and 7 Id. 895, and 9 Bligh, 7, involved a question of similar charac- ter to that presented in the case at bar, and is specially relied upon by the respondent's counsel. It was there held that a child born in Scotland, of unmarried parents domiciled in that country, and who afterwards intermarried there, is not by such marriage rendered capable of inheriting lands in' England. By the Scottish law the marriage legitimated the child. It was laid down by the chief baron on behalf of the (]ourt that the comity existing between nations is conclusive to give the claimant the character of the eldest legitimate son of his father and to give him all the rights which are necessarily consequent 222 ILLUSTRATIVE CASES upon that character. Thus sustaining the general doctrine that by the comity between different nations the laws of one should be recognized by the other in reference to rendering children of parents born out of wedlock legitimate, but it further held that the son could not inherit in England, for the reason that although he was legitimate he was not born in wedlock. The distinction between being legitimate and being born in wed- lock would seem to be a narrow one, and it is difficult to see how it can be urged that a person can be made legitimate al- though born a bastard, and yet for the purpose of inheriting real estate be illegitimate because not born in wedlock. The particular phraseology of the statute of Merton, so-called, had much to do with this limited and narrow construction, and it is but fair to assume that if the term " born in wedlock" had been excluded, the right of inheritance would have been main- tained. It was said in that case by Bayley, J., that " the right to inherit land depends upon the quality of the land and not upon any personal statutes." It would thus seem that the case was decided upon the peculiar laws governing real estate in England and especially upon the statute of Merton. It was twice argued in the House of Lords : 2 Clark & Fin. 581 ; 7 Id. 894, and eventually decided upon the sole ground that al- though a child born in Scotland before the marriage of his parents would become legitimate by the subsequent marriage of said parents, j'et he could not inherit in England, for the reason that the English statute does not only require that the child be legitimate, but that he must also be born in wedlock. This dis- tinction was strongly criticized by Loed Brougham, one of the ablest of English jurists, and one of the Judges in that case when last heard. He says : " If what is laid down in this case be law, the bounds of that law are very narrow ; if it is the law anywhere, it prevails assuredly only as the law within the bounds of Westminster Hall. I know wherever I go in Europe it is boldly denied to be the law. I know the opinion of Di'. Story and other American jurists is against us, and I do not think I could overstate the degree in Avhich all these jurists dissent from the judgment in this case." See 7 Clark & Fin. 915. "VVharton in his Conflict of Laws, § 241, says in regard to this case, " the opinion was based on the special ground that IN DOMESTIC RELATIONS. 223 the English law as to the descent of honors and real property was of a positive and distinctive character, and could not be invaded by the prescription of a foreign jurisprudence." Par- sons in his work on Contracts, in commenting on this case, says: " We think such a marriage in Scotland, supposing parents and child afterward come to America and be naturalized here, would be held here to make the child an heir as well as give him all other rights of legitimacy." The case of" Smith v. Derr's Adm'rs, 34 Penn. St. 126, arose under the statute of Pennsylvania similar to the statute of Merton, and was disposed of in a very brief opinion upon the authority of the case of Birtwhistle v. Vardill, supra. The case of Lingen v. Lingen, 45 Ala. 410, is contrary to the general current of authority, and should not, we think, be followed. When the State of Pennsylvania, by its Legislature, de- clared that : " In any and every case when the father and mother of an illegitimate child or children shall enter into the bonds of holy wedlock and cohabit, such child or children shall thereby become legitimate and enjoy all the rights and privileges as if they had been born during the wedlock of their parents," it did not mean that persons who were born illegiti- mate would only be legitimate if born in lawful wedlock. Its intention was to legitimatize the oftspring of those who were unmarried at the time of the birth of their child, and any other construction would lead to the making of provision for children lawfully born instead of those who were illegitimate. To hold a different rule would nullify the law and be contrary to the interpretation usually given to remedial statutes of the character of the one considered. We do not deem it necessary to consider the question as to the definition of the word " legitimate ;" whether it embraces " born out of wedlock" is in our opinion not material, as, under the authorities we have cited, a child thus born may be made legitimate by law, and its legitimacy recognized in other coun- tries besides the domicile of its parents, by the comity of nations. We think we have fully established this proposition, and, although there are some authorities which hold difterently, 224 ILLUSTRATIVE CASES they are not sufficient to overturn the doctrine laid down in the elementary books and reported cases. The case of Birtwhistle v. Vardill is so limited and re- stricted that it must be held only to apply to the law as estab- lished in Great Britain. We have examined the other author- ities not specially referred to, which have been cited by the re- spondents' counsel, and we think none of them are in conflict with the rule we have laid down. In our opinion the judgment of the General Term was er- roneous, and should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed. Sch. s. 226, 227 ; Minn. Probate Code, 1889, s. 66 & 67 ; Minn. Gen. St. 1878, c. 61, s. 17 ; Hawbecker v. Hawbecker, 43 Md. 516 ; Mass. Gen. St. 1860 ; Penn. Law, 1857 ; Graham v. Bennet, 2 Cal. 503 ; Starr «. Peck, 1 Hill (N. Y.), 270. This is a recognized principle of the civil law, and though never favored by the common law, has been adopted in most of the Commonwealths. 2. Parents, (a) Their duties. The duties of a parent to their children are those of maintenance, protection, and education; but there was no way of enforcing these duties at common law. Kelley v. Davis. Supreme Court of New Hampshire, 1870. 49 N. H. 187. Assumpsit by Alfred Kelley, surviving partner of Kelley & Cleasby, against John E. Davis, for goods sold and delivered by the plaintiffs to Gilman C, Davis, the minor son of the de- fendant, during the winter of 1866, to the amount of $58.33. The. plaintiffs sought to charge the defendant on the ground that the goods sold to said Gilbert were necessaries, suitable to IN DOMESTIC RELATIONS. 225 liis degree and stutloii in liie, and that the father, the defendant, should pay for them. The plea was the general issue, and the case was by consent of the parties tried by the Court. It appeared from the plain- tift''s books and the testimony of said Gilbert, that he had the goods charged in the account sued for ; that Gilbert was then about seventeen years of age, being at work at the time they were delivered to him with one Eastman, then at Wentworth in this State. Gilbert testified that he worked for Eastman most of the winter of 1866 and '67 driving his team ; that he agreed to work one 3' ear, and when he contracted for the goods at the plaintiff's store expected Eastman to pay for them, but before winter was out he became dissatisfied with Eastman, and left him without any assignable reason. " The Court finds .from the testimony of said Gilbert that he was a minor when the goods were delivered, and that the plaintiffs knew that fact ; that his father had in some form given Gilbert his time, but the plaintiff', Kelley, said he did not know that fact ; that among the articles furnished to Gilbert was a fur collar charged to him at the price of $6. This he swapped with Eastman, and gave the one he had to his father, the defendant. He sold one pair of boots he had for money, without wearing them but once or twice. Sold a pair of rubber shoes for half what they were worth. Swapped another pair of boots, and let his brother Silas have the pair he got. Eought a suit of clothes which he says he did not need. Swapped the pantaloons with Whicher — ' I guess I made them an object of trade.' Had a pair of gloves at the price of $2.50, swapped them with Eastman, etc. ' I am not worth any thing now, and don't expect to be ever worth any thing.' ' I borrowed the money to pay my fare to bring me to Court.' The Court finds upon the examination of the character of the witness Gilbert, and as the result of the whole testimony that the plaintiff's account should be reduced by the amount of $22.42, and thus the balance, amounting to $35.90, with legal interest thereon, is a just claim against the defendant, being for necessaries at a fair price ; that the father had sufficient means to yield support to his son when he gave him his time ; that he was bound to have furnished him a better education, or more parental care than the son has re- 15 226 ILLUSTRATIVE CASES ceived, and before he was turned adrift upon the world. And for this failure of duty, which the law properl}' inaposes upon all parents of his ability, the defendant is justly bound to pay the balance as aforesaid of the plaintiffs' account." Whereupon the Court rendered their verdict in favor of the plaintiffs accordingly, the said Kelley being now the surviving partner of the late firm, and the defendant moved to set this verdict aside, and for a new trial. T. J. Smith, for the plaintiffs. Barnard Sf Sanborn, for the defendant. Foster, J. " The duty of parents to provide for the main- tenance of their children," says Blackstone, "is a principle of natural law." " It is an obligation," says Pctfeendorp, laid on them not only by nature herself, but by their own proper act in bringing them into the world ; for they would be in the high- est manner injurious to their issue, if they only gave their chil- dren life that they might afterwards see them perish. And thus the children have a perfect right of receiving maintenance from their parents." " But," says Mr. Wendell in his note 3 to 1 Bl. Com. 448, " the common law of England never afforded any means of enforcing this right ;" and Mr. Chitty, in Lis note to 1 Bl. Cora. 458 a, says, " there is no legal obligation on a parent to maintain his child independent of the statutes; and thei'efore a third person who may relieve the latter, even from absolute want, cannot sue the jjarent for reasonable remunera- tion unless he expressly or impliedly contracted to pay." In support of this proposition he cites Le Blanc, J., in 3 East, 85, T. Raym, 260 ; Palmer, 559, and 2 Stark. 651. And such, therefore, is the condition of the common law in this country, Gordon v. Potter, 17 Vt. 348. Neither do the statutes of New Hampshiro afford any remedy for enforcing tliis right against a parent so reckless of moral duty as to refuse to recompense a neighbor who may have relieved the want and suffering of his child. Our statute laws, like the English stat. utes of 43 Eliz. and 5 Geo. l,from which they were borrowed are intended only for the indemnity of the public against the maintenance of paupers, and not for the reimbursement of an individual who may have relieved the necessities of a poor per- IN DOMESTIC RELATIONS. 227 son in suffering and distress ; and under our statute no action can be sustained against a parent to recover for necessaries fur- nished to his child except by the town, and after notice to the person chargeable: Gren. Stats, ch. 74:; Farmiagton v. Jones, 36 N. H. 271. This view of the matter may, at the first glance, seem start- ling, as opposed to our natural sense of justice; since the duty of parents to provide reasonably for the maintenance and edu- cation of their children, until they shall be of sufficient age and capacity to provide for themselves, is so clearly obvious to the mind and conscience, and so clearly prescribed by the positive precepts of religion (for St. Paul says that "if any provide not for his own, and especially for those of his own house, he hath denied the faith and is worse than an infidel"), that a violation of this duty should, it would seem, be visited with severe punishment by human laws. But the reason for this seeming defect in the law, is said by Mr. Chitty to be that the common law considered moral duties of this nature as better left in their performance to the impulses of nature ; or, as Chancellor Kent remarks : 2 Com. 189, " the obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be enforced by human laws:" Paley's Moral Philosophy, 226. Therefore the liability of the parent in England and in this country is, as we have seen, founded solely upon contract, express or implied. But, notwithstanding the feeble and scanty provisions of the common and statute laws in this respect, it is held to be an indictable offence on the part of a parent of sufficient ability, to refuse or neglect to provide sufficient food, bedding, etc., to the injury of the health of any infant of tender years, servant, apprentice, or child, unable to provide for itself, which the party is obliged by duty or contract to provide for : Rex v. Friend, Euss. & Ryan's Cr. Cas. 20 ; In the matter of Ryder, 11 Paige Ch. 185. On the other hand, the obligation of a parent where the cir- cumstances are such as to authorize the implication of a promise or contract to pay for necessaries provided by another for his child, is not unrestricted in its requirements, but is guarded by wise and reasonable limitations. " For the policy of our laws" 228 ILLUSTRATIVE CASES (says Blackstone), " which are ever watchful to promote in- dustry, 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, imagining they might trust to the impulse of nature, if the children were de- serving of such favors:" 1 Bl. Com. 449. And by Statute 59 Geo. III. ch. 12, § 26, the penalty on refusal of the father to provide such maintenance for his minor children as two jus- tices of the peace shall direct, is no more than twenty shillings a month, though the amount of maintenance is not limited by the amount of the penalty for disobedience, and the father's goods may be distrained therefor. The legal obligation of the father, therefore, to pay for necessaries furnished a minor child rests upon contract alone ; and where a parent gives no authority, and enters into no con- tract, he is no more liable to pay a debt contracted by his child, even for necessaries, than a mere stranger would be: Chitly Cont. 166 (10th Am. Ed.). In declaring this proposition the learned author is sustained by a strong current of authorities. Thus, in Shelton v. Springett, 20 Eng. L. & Eq. 281, it is said : "A father is not liable on a contract made by his minor child, even for necessaries furnished, unless an actual authority be proved, or the circumstances be sufficient to imply one ;" and it is also said in the same case that the mere obligation to provide for the child's maintenance affords no legal inference of a promise. And in Mortimer v. Wright, 6 M. & "W". 482, Lord Abinger said : " 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." And that " the mere moral obligation on the father to maintain his child affords no inference of a legal promise to pay his debts." " To bind the father, in point of law, for the debt incurred by his son, you must prove that he has contracted to be bound, just in the same manner as you would prove such a contract against any other person ;" and Parke, B., said a father was under no legal obligation to pay his son's debts, except, indeed, by proceedings under the statute ; the mere moral IN DOMESTIC RELATIONS. 229 obligation imposing no legal liability. See also Blackburn v. Mackey, 1 C. & P. 1 ; Fluck v. Tollemache, Icl. 5 ; Eolfe v. Abbott, 6 C. & r. 286 ; Gordon v. Potter, 17 Yt. 348 ; Varney v. Young, 11 Vt. 260 ; Raymond v. Loyd, 10 Barb. 483 ; Chilcott V. Trumble, 13 Barb. 502 ; 2 Kent's Com. 190, note 3 (11th ed.). Although the rule has not been declared in terms so strong and explicit by our own Courts, still we think the decisions in this State are not in conflict, but in accordance with the rule as heretofore stated and as applied in the cases to which we have referred. Our Courts seem to have followed the decision in Van Val- kenburg v. Watson, 13 Johns. 480, in which it is said that " if the parent neglects that duty (to furnish necessaries for his infant children) any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent." It is obvious here that the necessity for a contract — " prom- ise" — is not dispensed with, but expressly declared in the learned Chancellor's view of the case ; and the rule as stated bj' hira is shown to be not less stringent than that declared by Abinger, C. B.,Pakk, B.,and Mr. Chitty, when practically ap- plied, for in the same case the party furnishing the goods to the minor child is held to the exercise of extreme diligence in inquiring into the condition of the parties, parent and child, before he can ask a jury to find from the circumstances of the case an implied promise on the part of the parent; and, "what is actually necessary," he says, " will depend upon the precis© situation of the infant, and which the party giving the credit must be acquainted with at his peril." And we do not understand the case of Pidgin v. Cram, 8 N. H. 352, as going to the extent of dispensing with the necessity for a contract or promise on the part of the parent as the essential foundation of his legal obligation, but only as indicating what circumstances are essential and indispensable to the implication of such promise. It is there said, following the language of the Court in Van Valkenburg v. Watson, that " in general, a parent is under a natural obligation to furnish necessaries for his infant children ; and if the parent neglect 230 ILLUSTRATIVE CASES that duty, an)' person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent." The learned Ch. J. Richaedson then continues as follows : " But in order to authorize any person to act for the parent in such a case there must be a clear and palpable omission of duty in that respect on the part of the parent." If by the use of these terms the learned Chief Justice intended to say that the law implies a promise from such a " palpable omission of duty" as is evinced by an absolute refusal, deliber- ately expressed, to provide for the necessities of his minor chil- dren, we should not be able to assent to such a declaration. On the contrary, to use the language of Parsons, C. J., in Whiting V. Sullivan, 7 Mass. 109, " as the law will not generally imply a promise where there is an express promise, so the law will not imply a promise of any person against his own express declara- tion, because such declaration is repugnant to any implication of a promise." But this proposition must be taken with the qualification that where a legal duty — not a mere moral obligation — is imposed upon the party making the negative declaration, the law (by force of an indispensable fiction) will imply a promise, even against the party's strongest protestations, as in the case of taxes, or the claims of a town, founded on the statute, for reimbursement for relieving paupers. " In the civil law those contracts which correspond to the implied contracts of the common law are denominated obligationes quasi ex contractu and Heineccius denies that the}'- are founded on contract." See Metcalf on Contracts, 5, 8, 167 ; see Pot. Old. 115. In the case of Pidgin v. Cram, there was held to be no lia- bility, and the verdict for the plaintiff' was set aside upon grounds thus stated by the Court: "Here the daughter was nearly of the age of fifteen, and was residing with her mother when the articles were furnished. She may have been capable of furnishing herself with every necessary by her own exer- tions. It does not appear that any application vras ever made to the defendant for any assistance. For aught that appears he may have been ready and willing to furnish all that was wanted.- IN DOMESTIC RELATIONS. 231 The evidence in this case was not, then, sufficient to entitle the plaintiff to a verdict for the supplies furnished to the daughter." To the same eliect is Townsend v. Buruham, 22 K li. 277. lu Parmington v. Jones, Peeley, C. J., says: "It does not appear that the support was furnished at the defendant's re- quest, or that he has made any express promise to pay. The plaintiff' must rely upon a promise implied in law from the facts stated in the report of the Auditor." The claim in that ease was for support furnished the defendant's daughter while sick of the small-pox and detained in the house where she was visiting, the same being established as a pest-house by the of- ficers of the town ; and it was held that the facts were not such as to raise the implication of a promise to pay. Now, although one of the earlier cases in this State, Hills- borough V. Deering, 4 N. H. 86 declares (erroneously, as we think) the obligation of parents to support their children to be a requirement of the common law, independent of any stat- ute ; it is not apparent that any attempt has ever been made to enforce such obligation otherwise than upon the ground of a contract or promise on the part of the parent sought to be charged, nor has it ever been claimed that mere moral obliga- tion or duty raises any implication of a promise or contract. In French v. Benton, 44 'E. H. 30, Bellows, J., remarks (con- cerning the assumption of the plaintiff's counsel, in the argu- ment of that cause, that the father by a palpable omission of duty, such as turning the child out of doors and refusing to provide for him, enables the child to pledge his father's credit for necessaries) that " there is much conflict of the authorities, but the settled doctrine of the English Courts now seems to be that the moral obligation of the parent to support his minor child imposes no obligation to pay his debts unless he has given him authority to incur them, and that the contract of the father must be proved, just in the same manner as if he were a brother, son, or stranger." " The early New York cases held that a clear and palpable omission of duty by the parent would give the child credit, and render the parent liable for necessaries," citing Van Valken- burg V. Watson, and other cases. " In the latter case of Ray- mond V. Loyle, 10 Barb. 483, the cases sustaining this doctrine 232 ILLUSTRATIVE CASES are examined and questioned, and the conclusion finally reached that there is no legal obligation to naaintain a minor son, inde- pendent of statute." And he continues as follows : " Without undertaking to de- cide what is the law of !N"ew Hampshire, it is quite evident that the tendency of the modern authorities is to limit the liability of the parent for necessaries to cases where they are furnished at his request, express, or to be inferred by a jury from circum- stances, upon the general ground as stated in Bainbridge v. Pickering, 2 W. Black. 1325, that no one shall take it ' upon him to dictate to a parent what clothing a child shall wear, at what time they shall be purchased, or of whom. All that must be left to the discretion of the father and mother.' A similar tendency exists in respect to promises founded upon the consid- eration of moral obligations, and it may now be considered as settled that such considerations will not he regarded as svfficient, unless a valid legal obligation had once existed, although after- ward barred by some statute or positive rule of law." On the whole, the principles of law applicable to this class of cases seem to take the form of these propositions : That a parent cannot be charged for necessaries furnished by a stranger for his minor child except upon a promise to pay for them ; and that such promise is not to be implied from mere moral obliga- tion, nor from the statutes providing for the reimbursement of towns ; but the omission of duty from which a jury may find a promise by implication of law must be a legal duty, capable of enforcement by process of law. In accordance with these principles, it will be for the jury to say, in a given case, whether all the facts and circumstances warrant the finding of a promise, express or implied. In reaching a result they will be at liberty, of course, and will be likely to take into consideration all the circumstances connected with the parent's neglect as indicating his intention, views, and purposes with regard to the wants of his child, and the weight and controlling influence of all the evidence, gov- erned by the rules of law as we have endeavored to promulgate them, will undoubtedly seldom fail to result in substantial jus- tice and equity. Let us then apply these considerations to the case before us. IN DOMESTIC RELATIONS. 233 It is quite apparent from the conduct of the minor with regard to the articles purchased that a large proportion of them were in no sense necessary for the comfort, support, or convenience of the minor at the time they were purchased. The fur collar, the kid gloves, the rubber shoes, the boots, and the trousers were all made " objects of trade" by the young man, and the suit of clothes, he says, he did not need. The inference from the statement of the case is that these articles were all deducted from the plaintiif's account, and that the balance for which the verdict was rendered consisted of actual necessaries. But there was no express promise by the father to pay for them, and we are unable from the facts and circumstances disclosed, to raise any implication of a promise from any clear and palpable omission of duty on the part of the parent. Indeed, the verdict of the Court is not placed upon any such grounds, but only upon these, namely : "That the father had suf- ficient means to yield support to his son when he gave him his time ; that he was bound to have furnished him a better educa- tion, or more parental care than the son has received, and before he was turned adrift upon the world. And for this failure of duty, which the law properly imposes upon all parents of his ability, the defendant is justly bound to pay the balance of the plaintiffs account." We cannot regard these considerations as sufficient to war- rant the finding of the Court. They may in special instances be worthy of application in the forum of conscience, but we think they cannot be adopted in general practice nor admitted in this particular case. To make the father's liability depend- ent upon no other conditions than those which are said to be a sufficient foundation for the verdict of the Court in this case would be to expose the parent to the ruinous consequences not only of his son's wasteful extravagance and imprudence, but also to the arts of designing and unscrupulous tradesmen. To follow on the analogy suggested between this case and that of Pidgin V. Cram, before cited : Here the son was seventeen years of ao-e. He was residing with the person whom he contracted to serve for wages probably sufficient to pay for all his neces- sary expenses. This fact, and the fact that be was not dis- 234 ILLUSTRATIVE CASES charged by his employer, but left his service without any assignable reason, shows that he was capable of furnishing himself with every necessity by his own exertions. It does not appear that any application was ever made to the defen- dant for assistance. For aught that appears, he may have been ready and willing to furnish all that was wanted. The evidence was not, then, sufficient to entitle the plaintiff to a verdict for the supplies furnished to the son. We ha,ve paid no attention to the fact that the defendant had " in some form given the young man his time," since the plain- tifi" was not informed of that fact, and we have not regarded it as material in this case. Verdict set aside, and a new trial granted. Ditch field v. Londonderry, 39 N. H. 247 ; Hunt v. Thompson, 3 Scam- mon, 179 ; Gotts v. Clark, 78 111. 229. (b) Their rights. The father is entitled to the custody of the children until they are of age, and upon the death of the father they will generally be placed in the custody of the mother. People v. Mercein. Supreme Court, State of New York, 1842. 3 Hill, 399. Habeas corpus ad subjiciendum, issued and returned at the last term of this Court. The writ commanded the respondent, Thomas R. Mercein, to bring into Court Mary Mercein Barry, an infant child of John A. Barry, the relator ; the said child, as alleged, being illegally detained by the respondent, and with- held from the relator's custody. The petition for the writ did not purport to be presented on behalf of the child, but by the relator in his right as father. From the petition and return it appeared that, at the time of awarding the writ, the child was IN DOMESTIC RELATIONS. 235 about four years and six mouths old — that hoi' mother, Eliza Auua Barry, wife of the relator, was a daughter of the respon- dent — that she, with the respondent's consent and countenance, was living at his house, in a state of voluntary separation from her husband, having the said child with her — that the relator had made repeated applications to his wife and the respondent fur the custody of the child, but without success, etc. The marriage between the relator and the said Eliza Anna took place in the spring of 1835, at her father's house in the city of Xew York ; she then being upwards of twenty -five years of age, the relator a British subject, born in Nova Scotia, where he was engaged in business. Shortly after this event he and liis wife proceeded to Nova Scotia, and resided there for a year. They then, at her solicitation, removed to the city of JSTew York, at which place he engaged in mercantile pursuits. His New York business proving unfortunate, however, in the win- ter of 1837, he found himself constrained to relinquish it. Previous to this two children were born, the issue of the mar- riage ; viz., a son, now between five and six 3'ears old, and a daughter, the child in question. In the spring of 18-38 it was arranged between the relator, his wife, and the respondent, that she and the two children should stay at the respondent's house, while the relator went to Nova Scotia with a view to re-establishing himself in business there. Nothing like a per- manent separation was proposed or contemplated at this time ; at least, there was no evidence of such having been the intent either of the relator or his wife. He embarked for Nova Scotia in April, 1838, accompanied by his elder daughters, children of a former marriage, and, after an absence of three or four weeks, he returned, proposing to his wife certain measures preparatory to their permanent settlement in Nova Scotia. She strongly opposed his views on that subject, and finally told him she never would consent to go, etc. — that he might force her to go by taking her son — but rather than this she would prefer to jpart with the relator at once. He expressed himself dis- pleased and disappointed with her conduct ; and, after some further conversation, left the respondent's liouse. Various let- ters then passed between the relator and his wife respecting their future views and intentions, the disposition to be made 236 ILLUSTRATIVE CASES of their children, etc. ; and the correspondence finally resulted in an agreement, executed under the hands and seals of the relator, his wife, and the respondent, as follows : " Agreement made this 7th day of June, 1838, between John A. Barry of the first part, Eliza Anna Barry of the second part, and Thomas E. Mercein of the third part. Whereas certain differences have existed between John A. Barry and Eliza Anna, which it is their mutual desire shall be amicably and peacefully arranged and recon- ciled; and the said John A. Barry's business requiring him to be absent from New York for a time ; and neither individual at present wishing a final separation : It is agreed between the aforesaid John A. Barry of the one part, the said Eliza Anna his wife, of the second part, and Thomas E. Mercein of the third part, that the said John A. Barry shall leave in the care and keeping of his said wife, untd the first day of May next ensuing, their daughter, Mary Mercein, and that on that day or so soon thereafter asraa}"- be, he shall relinquish to Eliza Ann, his said wife, all his right existing at that or accruing at any then future period to their said daughter, provided his said wife shall then re- quire him so to do. The aforesaid parties also covenant and agree that Mercein, the son of the said John A. and Eliza Anna, shall be left in the care and keeping of his said mother until she shall be required by his said father to deliver him, the said Mercein, to him the said John A. Barry ; the said mother hav- ing, at such time, the option to accompany him. Finally, it is agreed between the aforesaid parties, that this document may be cancelled, annulled, and destroyed at any ynoment by the mutual consent of the said John A. Barry and Eliza Anna, his wife. In witness," etc. In the latter part of June, 1838, the relator again embarked for Nova Scotia, and returned on the 8th of September follow- ing. At this time he proposed to his wife that he would re- main in New York until spring, provided she would positively promise then to return with him to E"ova Scotia. She refused ; and, in the course of the interview, he spoke of taking their son from her in case she persisted in her refusal. She acknowl- edged his power of doing so, but admonished him that such a step would seal their fate. The son was afterward given up to the relator, and has since remained with him. IN DOMESTIC RELATIONS. 237 On the 18th of May, 1839, the relator instituted proceedings by habeas corpus before the recorder of the city of New York, to obtain the custody of the child now in question. The writ was directed to the respondent, and he and the relator's wife united in making return to it. The result was an order by the Recorder " that the said Mary Mercein Barry do remain in the care and custody of the said Eliza Anna Barry, until the said John A. Barry dnd the said Eliza Anna Barry shall make some arrangement or compromise, or until the custody of the said child shall be changed ly judicial decision." This order was made on the 1st of Jul}'-, 1889. On the 13th of the same month the re- lator obtained another writ of habeas corpus from the chan- cellor. This was also directed to the respondent ; and the pro- ceedings thereupon, together with the opinion of the chan- cellor, may be seen in 8 Paige's Rep. 48 et seq. The chan- cellor's order declared " that the said infant daughter of the relator is not improperly restrained, of her liberty by the said Thomas R. Mercein, and that no good reason now exists for tak- ing the said infant child from the care and protection of the said Thomas R. Mercein, etc. ; and this Court, therefore, will not make an order to take the said infant child from the custody and nurture of its mother, etc., for the purpose of delivering it up to the relator," etc. This order was dated the 26th of August, 1839. On the 29th of October following the relator instituted like proceedings before William Inglis, one of the Associate Judges of the Common Pleas, of the city and county of New York. The respondent interposed the same facts upon ■which he had prevailed before the chancellor and the recorder ; insisting, moreover, that the orders made by those officers re- spectively constituted a bar to further litigation as to the same subject-matter. The final order of Judge Inglis was made on' the 30th of April, 1840, refusing to deliver up the child to the relator. See 25 Wend. pp. 68-70. The relator caused these proceedings to be removed by certiorari into this Court, where they were reversed : Id. 72-83. The respondent thereupon sued out a Avrit of error, and afterwards the Court for the cor- rection of errors reversed the decision of this Court and affirmed that of Judge Inglis, with costs to be paid by the relator : Id. 83- 106. Intermediate the decision by this Court and that of the 238 ILLUSTRATIVE CASES Court for the correction of errors — viz., in October, 1840 — the relator, on application to this Court,' obtained a fourth habeas corpus, returnable on the 80th of the same month, before Thomas J. Oakley, one of the Associate Justices of the Su- perior Court of the city of ISTew York, See Sess. Laws of 1837, p. 230 ; this writ being directed to the respondent and the re- lator's wife, and having the like object with the others. A return was made, and the proceedings remained pending until March, 1841, when Judge Oaklet decided "that said infant child, Mary Mercein Barry, is not improperly restrained of her liberty by the said Thomas R. Mercein and the said Eliza Anna JBarry, or either of them, and that the said infant child be not taken from its mother, etc., to be given to the said John A. Barry, and that the said writ of habeas corpus be discharged." Soon after this the relator returned to Nova Scotia, where he engaged in business and has continued to reside, having occa- sionally, however, during the interval, been in the city of New York. The petition mentioned various fruitless eftbrts on his part since the decision of Judge Oakley to obtain the custody of the child, and induce his wife to live with him. The respondent denied that he detained or withheld the child from the relator, otherwise than by protecting the said Eliza Anna in her refusal to deliver it up, etc. In order to justify the latter in the position she had assumed with respect to the relator, the respondent gave a detailed account of various in- stances of domestic difficulty which had occurred between the relator and his wife, commencing shortly after the marriage. It is impossible to state these with any tolerable degree of ac- curacy, without occupying more space than their relative im- portance would warrant. An attempt was also made in the return to question the relator's qualifications and fitness for having the care and education of the child. The conclusions which the facts on this and the preceding topic tended to sus- tain will be seen by the opinions delivered by the Judges. The respondent annexed to his present return full copies of the returns respectively made to each of the former writs of habeas corpus; re-asserting the truth of the facts therein set forth. It thus appeared that one main ground of defence urged in those proceedings was the tender jige and ill health of the IN DOMESTIC EELATIONS. 239 child, its feeble constitution, etc. The present return, more- over, insisted upon the several decisions above set forth as con- stituting a bar to the claim now interposed by the relator. It further appeared by the return that the respondent's costs in the Court for the correction of errors had been taxed at $345.62, and demanded of the relator before the issuing of the present writ ; and that he had not yet paid them. The respondent in- sisted that, until these costs were paid, the relator was not en- titled to be again heard. Many facts appeared in the case not adverted to in the above statement. These, however, may be sufficiently understood from the following opinions. jr. A. Spencer, for the relator. J. W. Gerard and S. Stevens, for the respondent. CowKN, J. This is a proceeding by writ of habeas corpus in- stituted by Mr. Barry for the purpose of enforcing his rights as the father of his infant child, detained by his wife, with the sanction of her father, in the house of the latter. The relator's claim, in different aspects, has been examined and decided on several previous writs before different commis- sioners ; the proceedings on one of which resulted in a writ of certiorari to this Court, followed by a writ of error. Costs were awarded against the relator ; and a preliminary objection is therefore taken that he is not entitled to be again heard till those costs are paid. The objection is founded on a supposed analogy to the ordinary cases of repeated and unsuccessful actions for the same' cause, where it is generallj' allowed as a discouragement to vexatious litigation. See Taylor v. Vander- voort, 9 Wend. 449. Commissioners under the habeas corpus Act, however, have no power to order such stay. They are limited to the course which the Legislature have prescribed to them. If the Act was intended for the government of our conduct it follows that our powers are equally limited. If the statute leaves us to the common law, yet the proceeding is of the same summary character as if before a commissioner ; and the reason for a stay is no greater in the one case than the other. In both the object is the same — a speedy inquiry into the cause for which the citizen is detained or imprisoned. From the way 2-iO ILLUSTRATIVE CASES to this the law has been sedulous, as far as possible, to remove obstructions. Admitting therefore that we have the power to order a stay, we think it should not be exercised. Another objection is that Mr. Mercein should not have been made a party ; the child not being detained by him. The de- tention is by his daughter, at his house, with his countenance and consent. If that be wrong on her part, it is equally so on his; for in respect to a civil injury the law regards every one who participates in and promotes it as a principal wrong-doer, and severally responsible to the party whose rights have been invaded. It is impossible to avoid seeing that if Mr. Barry is entitled to the custody of his child, Mr. Mercein is in fact the principal offender. Had his hand been withdrawn it is morally certain that the relator would have been put to encounter no serious difficulty in reclaiming the custody of his child with- out a lawsuit. See as to a return of non-detention simply, in such cases, ex parte M'Clellan, 1 Dowl. Pr. Cas. 81; The King V. Winton, 5 T. E. 89 ; Matter of Stacy, 10 John. R. 328. The objection that the application for this writ was irreg- ular, as not being in the form of a petition signed by the party sought to be relieved or by some person in behalf of the party, in the words of the statute : 2 E. S. 466, 2d ed. § 25, supposes that the prisoner or person detained must be privy to the pro- ceeding. This would be impossible in cases where very young children are detained ; and so, perhaps, in many others. If authority from the person detained be ordinarily necessary, Mhich we do not admit, clearly there is nothing in the statute taking away the common law right of a parent to bring the writ when his child is improperly detained. See In re Pearson, 4 Moore's Rep. 366 ; Wood's case, 3 Wilson, 172 ; Rex v. Lister, 1 Str. 478. The defendant claims that Mrs. Barry was lawfully at his house ; and that in her right he is properly accessory to the detention of the child. This brings us to a consideration of the legal rights and powers of the relator and his wife in re- spect to their offspring. These rights and powers, like nearly all others M'hen the claims of husband and wife come in con- flict, depend upon a rule too elementary to require the adduc- tion of authority ; and too obvious to have been denied in the IN DOMESTIC RELATIONS. 241 whole course of this particular coutroversj', from the hearing before the Chancellor in the summer of 1839 : 8 Paige, 47, through the several hearings before commissioners, in this Court, and the Court for the correction of errors. The princi- ple is thus stated in 1 Black. Com. 468 : " The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the hus- band." Their relative power over the person of the child fol- lows as a consequence, and is stated in the same book (pp. 478, 9), to the following effect: The legal power of the father over his child is sufficient to keep the latter in order and obedience. The father is entitled to the benefit of his child's labor while it lives with and is maintained by him ; while the mother, as such, is entitled to no power over it, but only to reverence and respect. The father's legal power ceases at the age of twenty- one. The extent of the rule is shown by the exceptions which the book mentions at p. 471. They are such as to shield the wife from corporal abuse, though " the Courts of law will still permit the husband to restrain the wife of her liberty in case of any gross misbehavior." One consequence necessarily resulting from the legal identity of husband and wife, answers Mrs. Barry's claim to the cus- tody of the child ; which, as counsel have insisted, arises out of the relator's written agreement that she should retain it. That upon a proper construction of its words she could derive any such right as is now claimed for her, I do not admit. But for the purposes of the argument, suppose it an agreement for permanent separation — a complete relinquishment by the rela- tor of all claim whatever, and a transfer of his right to Mrs. Barry. A single passage from the law shows its futility : " A man cannot grant any thing to his wife, or enter into covenant with her ; for the grant would be to suppose her separate ex- istence ; and to covenant with her would be only to covenant with himself:" 1 Black. Com. 468. As an agreement, there- fore, the writing was void. As a delegation of power it was revocable in its own nature, and in this instance has been act- ually revoked. Whatever latitude may have occasionally been allowed for the framing of bargains between husband and wife through trustees, I must be allowed to deny that it stands on 16 242 ILLUSTRATIVE CASES any principle which can with propriety be applied to the ease in question. I am aware that a separate maintenance may be settled by the husband on the wife, and that incidentally they may covenant for the separation of their persons ; that this may, if you please, be done under such pretexts as the parties shall choose to allege, whether in consonance or not with the law of divorce; and that Courts both of law and equity have sanctioned such arrangements by carrying them into eftect. The practice probably started on the principle I have men- tioned, of protection against corporal abuse, without its being sought with sufficient care to distinguish the fact from the mere declaration of the parties. The Courts do not seem to have foreseen that in doing so much they empowered the par- ties to be their own judges in a matter which may in the end vitally affect the interests of society. The practice is in itself by no means entitled to favor ; and the Courts are beginning to regret that they ever allowed it to any extent. It is at best letting into our system the doctrine of conventional divorce in its worst form. The advocates of that doctrine carry out their system to its proportional consequences. They would leave the parties at liberty to marry again ; thus fulfilling the supposed law of nature with comparative decency. Our law still pro- claims the obligation of the marriage contract, while it aids the parties in measures to evade that obligation, and thus to defraud both the law and one another. The whole is indeed matter of agreement between persons who are immediately in- terested ; and the consequences, if confined to them, might be regarded as of little moment. The discouragement to enter- prise in business, the wreck of private fortune, and loss of character might be placed to the account of retribution for such wickedness or weakness as cannot endure the trouble of becom- ing respectable. But the evil does not stop there. An innocent family and a wide circle of connections are perhaps brouo-ht to share in the misfortune and disgrace, with more or less intens- ity, as they may be more nearly or remotely related. The sen- timents of filial reverence are subverted, and the conjugal relation itself distrusted and traduced. Husbands and wives with feelings and appetites already too violent for the restraints of duty or of shame are thrown into the highway of tempta- IN DOMESTIC KELATIONS. 243 tion. It is said that the husband's common law right to cor- rect the wife began to be doubted in the politer reign of Charles the Second : 1 Black, Com. 471. It has since ceased to exist. In asserting the principle on which the barbarous practice, of correction was abolished, the Courts should be beware of the opposite extreme that characterized the same reign. Much as we may congratulate ourselves on the abolition of unreasonable severity, such an achievement would but poorly compensate for the general corruption of domestic morals. I make these remarks because they come into the argument that the doctrine of separate maintenance cannot be made to bear on the agreement in question ; which, as it seems to me, is neither within the original principle of the rule, nor the sphere of its most extended practice. If the husband has a right to transfer the marriage bed to his wife, I deny that he has therefore the right still further to violate his duty by sell- ing his children, with or without it. These he holds under the duty of a personal trust, inalienable even to another who is sui juris; a fortiori to his wife, with whom he can make no contract whatever. We do not perceive, with counsel, that in Mercein v. The People, 25 Wend. 64, the Court of Error differed from us upon this question. We understand that Court, on the contrary, to have reversed our former decision upon the sole ground that the question before us, being res judicata, we had no right to take notice of the truth. To avoid misapprehension, that Court told us so by an express resolution. I have therefore felt entirely warranted in withholding from the agreement that effect which two of the members of the Court of Errors seemed in the course of their arguments to have thought might possibly be due to it. The doctrine of the cases cited by Senator Paige, I have already conceded in all their force : Rex v. Lister, 1 Str. 478 ; Eex v. Mead, 1 Burr. 542. They were both cases of separate maintenance, on which it was held that the husband had lost his power over the per- son of his wife. Children were not in question. I have en- deavored to show that such cases form an exception in the law of husband and wife ; and have suggested some reasons why I think the principle should not be extended in its operation. I 244 ILLUSTRATIVE CASES know the learning of that Senator, and have great deference for his opinion ; but I have in this instance felt less difl&dence in my dissent becanse I find the learned Chancellor had before pronounced the agreement in question void: The People v. Mereein, 8 Paige, 67, 8. Admitting that an agreement for present separation is valid as between the parties (and I have supposed it to be a kind of divorce which the Courts cannot very well gainsay at this day), I am yet unable to see that, as a consequence, the husband may contract away the custody of his children. It need not be denied that a father may, even at common law, bind out his child to an apprenticeship, as this Court seem to have thought in The Matter of M'Dowles, 8 John. R. 328. Here again is a narrow exception, the principle of which should never be extended to any other case. The ex- ception itself was so very doubtful that a statute was deemed necessary for conferring a right on the parent even to this ex- tent. Those countries in which the father has a general power to dispose of his children have always been considered barbar- ous. Our own law never has allowed the exercise of such power except for some specific and temporary purpose, such as apprenticeship during the father's life, or guardianship after his death. But was it ever heard that during his lifetime he could bind out his child to his own wife, even as an appren- tice ? The case of the M'Dowles was of persons competent to contract. The disability of husband and wife was not in ques- tion. In the language of Lord Kbnyon, applied by Chancellor Walworth to the agreement in question : 8 Paige, 67, 1 ask, "How can it be in the power of any persons by their private agreement to alter the character and condition which by law results from the state of marriage while it subsists?" The rights of the relator being clearly unimpaired by the alleged bargain between him and his wife, the case is, on its merits, brought down to the single point on which it was con- sidered before the Chancellor (8 I'aige, 47), viz,, whether, assuming that the wife resolves to continue in her state of sepa- ration, a due regard to the welfare of the child will warrant an order for its delivery to the relator; or whether we shall allow her and her father longer to oppose the supposed necessities of nurture to the demands of law. I say, demands of law, be- IN DOMESTIC RELATIONS. 2-15 cause the defendant's case was presented to the Chancellor in its strongest possible aspect ; and no doubt was entertained by liim of the relator's right in legal strictness. This was in the summer of 1839, and could not have been long after the child was weaned. The Chancellor then said, if delivered to its father, he had no apprehension it would be treated with un- kindness ; adding, "I have no doubt that his elder daughters, to whose good characters and amiable dispositions Mrs. Barry herself bears full and ample testimony, would endeavor faith- fully to discharge the duties of a mother to their infant sister, us far as they were able to do so, as they have already done to the brother." After considerable hesitation, he refused an order in favor of the relator, on the sole ground of the child's then tender age. The case was again investigated before Judge Inglis, before this Court, the Court of Errors, and, finally, on a habeas corpus issued in October, 1840, returnable before Mr. J ustice Oakley. It is now three years since it was examined by the Chancellor, and more than a year and a half since the suit was commenced before Mr. Justice Oakley. The case has at no stage appeared to be any stronger against the relator than it was when before the Chancellor; and the inquiry seems to come with scarcely a plausible answer — why should his child be longer withheld ? It is at present nearly five years old. The father's claim, if not stronger, is at least more apparent ; for it is by no means unimportant that he has a right to train up this child as he has his other daughters, with dispositions to serve him affectionately in the business of his household, should its health become sufficiently stable. This may indeed be essential to the child's welfare; and, I am strongly inclined to believe, will be better attended to by the relator than by the wife. It is equally his right and his duty to see that the child sliall also be properly educated in other respects. The general allegation that a daughter may he well in the hands of a mother who chooses to leave her husband would, if allowed, work an entire subversion of his right. When we are told in Mr, Mer- cein's return, that this child is still in such delicate health as to require a mother's care, the first answer which strikes the mind is the generality and unsatisfactory nature of the allega- tion — au allegation by which, if allowed, the relator may still 246 ILLUSTRATIVE CASES be baffled till his child is twenty-one. Let it be taken, how- ever, that evidence of a propensity on his part wilfully to with- draw his child beyond the reach of maternal care should form a ground for our refusing to interfere in his favor ; the attempt to make out such a ease on the circumstances before us is a very extraordinary one. We have seen this man for years soliciting the woman to go with the child and aid him in its nurture. Eating some matrimonial bickeri,ng, the state of his affections was not all impeached before the Chancellor ; and there is now nothing left to impugn the sincerity of his attach- ment both to the mother and child. lie has manifested an anxiety which nothing could repress, that they should both come to the home he has prepared and the table he has spread for them ; or, if his wife's better feelings should revive and she were to follow after him and his child, he would no doubt joy- fully receive her at any time, and strive to forget that she had ever left him. The argument has been urged as if there were, in the abstract, such an unfitness in a woman returning to the bed and board of her husband as can not be endured consis- tently with a proper sense of duty. I have listened in vain for a single lisp, even in argument, that there would be more danger in this woman returning to the relator, than in the re- turn of any wife to any husband in Christendom. From all we can collect, I am inclined to think she would stand in as little danger from his temper as from his morals. That the former has been well balanced and regulated in his intercourse with society at large, it is not necessary either to affirm or deny. Its general amenity in his family was expressly conceded by Chancellor "Walworth, after a severe scrutiny. Before us there has been no attempt to impeach it. The Chancellor was also of opinion that, as between him and bis wife, nothing had occurred which was legally sufficient to authorize a decree of separation; and the promise of relator during courtship, that she should continue near her parents, is not now interposed as a reason for her voluntary separation. To every thing else that was attempted in proof before the Chancellor, we may Avell apply the remarks of Sir William Scott, in Evans v. Evans, 1 Hagg. Consist, Eep. 35 : " Mere turbulence of temper, petu- lance of manners, infirmity of mind, are not to be numbered IN DOMESTIC RELATIONS. 247 among the causes" of voluntary separation. No corporal vio- lence, or menace of corporal violence, has, at any stage of the controversy, that I can see, been pretended ; and looking at some disclosures in the course of it — the pecuniary embarrass- ment of the relator, the cauce of that embarrassment, the man- ner in which it was met by the wife, and the irritating disputes which ensued concerning the rights and duties of the parties — it is rather a matter of surprise that we have not witnessed much greater displays of ill temper on his side than have as yet been charged. His aftections have been unwarrantably trifled with ; and it is by no means the least evidence in his favor, that during the course of a tedious litigation he has been the more unwavering in his suit, from entertaining the hope that success would be tributary to a restoration of his conjugal rights. That he was habitually unfeeling, or even rude iu language towards his wife during the time when they cohabited together, is now scarcely pretended. The utmost that can be imputed are occasional ebullitions of anger and vexation, aris- ing from momentary excitement operating upon a temper naturally hasty, but by no means unrelenting. The children of his tirst marriage, it is still conceded, are intelligent and amiable, and have uniformly demeaned themselves towards Mrs. Bai'ry with great attention and respect. I entertain no fears, therefore, on what has seemed to me the whole stress of the argument upon the merits against the relator — the alternative between Mrs. Barry's returning to her husband, and abandoning the care of her child. I see nothing to furnish either a legal or moral excuse on her part for hesitat- ing upon such an alternative. Clearly, however, it should be enough for this part of the argument that the conduct of the relator has been such as to leave her without excuse. If she still continue in a state of separation, the consideration of a few facts will be sufficient to remove all objection against the child being restored to the husband ; indeed, dispel all fear of its welfare in his hands. That he now commands a comfortable home with adequate means for supporting the child, is no longer denied. He is at the head of an interesting family, mostly I believe daughters, who have been bred under his care in the best manner; some 248 ILLUSTRATIVE CASES of them from childhood to age. That he is qualified, and emi- nently so, for the moral and mental instruction of this child is clear. That in his family the child can and will derive from his daughters and other means, care and attention fully propor- tioned to its physical wants, we have reason to be confident. Besides, the next oldest child of the marriage with Mrs. Barry has, with her consent and that of her relatives, been left in the exclusive charge of the relator, from an age, I believe, still younger than that of the child whose custody she claims to withhold. The condition of the older child has been open to inquiry ; and yet we hear not a pretence that its custody could have been more properly bestowed. In short, we know that the relator ranks well as a man of intellect and education. We have evidence that, though not affluent, he is yet a man of bus- iness and enterprise, in the prime of life and health, of sound morals and estimable character, with a comfortable, indeed, desirable home, and every means and disposition to take proper care of the child whose custody he sues for. So far, and while on the merits, none of the members of this Court have ever felt any serious difficulty. The question of res judicata — for the first time pronounced applicable by the Court of Errors to an order made against a parent suing for the cus- tody of his child — is certainly one which admits of more dispute. The claim on the side of the defence is, that by the order of the Chancellor, or by that and the orders made after- wards — for they are all spread before us in the defendant's re- turn — the relator is estopped to assert his rights, whatever they may be. Under the decision of the Court of Errors this would doubtless be so, were the case exactly commensurate with what it was at the time when either of the previous orders was made. The only question is whether an estoppel, for instance in virtue of the last order made upon the habeas corpus of 1840, should be expanded and elongated so as to cut off the relator's right through all future time. I can hardly think the Court of Errors intended to give it such an effect ; and in the absence of authority defining its extent, we are put to consider the ques- tion a priori. It appears to me there are several cases in the law precisely analogous in principle ; and by which we ought to be governed in considering the present. A man sues for a IN DOMESTIC RELATIONS. 249 demand not yet due, and sues repeatedl}- , but has a verdict and judgment against him upon the ground, not that he has no claim, but that it is inchoate. Pie waits till it becomes due, and sues again ; no one would pretend that his successive de- feats, or any of them, should bar his last action : New England Bank v. Lewis, 8 Pick. 113 ; Catron, J., in Estill v. Taul, 2 Yerg. 467, 470 ; Wilson v. Hamilton, 9 Serg. & Eawle, 424 ; McLaughlin v. Hill, 6 Vt. Rep. 20. So here, to speak in analogical language, when the relator sued before the Chancel- lor, and afterwards before Mr. Justice Oakley, the debt for which the suits were brought had not yet fallen due, though we now hear from no one that it is not honestly due. Again, the decision of a Court on motion is received as an estoppel only upon circumstances exactly similar. It may be opened on the question being changed by new materials discovered or afterwards accruing : Simson v. Hart, 14 John. E,. 63 ; Dick- enson V. Gilliland, 1 Cowen, 495. The mode of inquiry is there, quite analogous to tbat on habeas corpus. It proceeds summarily on affidavit. The question also depends much on the exercise of discretion. So, on habeas corpus to obtain the possession of a child. The question is less one of right than of mere custody ; a question which we know turns upon expe- diency — too often perhaps upon light expediency, shifting as the hues of the chameleon. Still more strikingly analogous is the common law doctrine that a verdict and judgment in eject- ment is no bar to another ejectment for the same land. The law went on the ground that the action related, like this habeas corpus, to possession or custody, and every new action sup- posed a new and distinct demise. This, although a mere fic- tion, was received as working out a new point in the contro- versy, and baffling the force of the alleged estoppel : Eun- ningt. on Eject. 12. A mother deserts her husband, with a child at her breast ; and the father's claim is denied because it wants a wet nurse, which he cannot furnish. With what pro- priety, or what decent color, can it be said, on the reason ceas- ing, that the point is the same ? So where the father is a wan- derer, or his domestic affairs are in confusion, and the child is very young, he may well be required to postpone the exercise of his legal right till the Courts see such a permanent change 250 ILLUSTRATIVE CASES ill his condition as shall insure its comfort. On such change occurring, and the claim being renewed, would it not be trifling with the party and the law to tell him that, on an alteration of the very circumstance which controlled the first decision, the point is still the same, and has been adjudged against him ? It is matter of common experience, that an act rightful under some circumstances may be injurious under others. The gravamen often sounds in continuance. A rightful bailee or lessee be- comes a wrong-doer by holding over after his term has expired. A thing which is innocent to-day may become a nuisance to- morrow. To say that an acquittal on the point of present in- nocency shall be advanced pari passu so as to bar an action for the pernicious effect, would render an estoppel the greater nuisance of the two. It is said, indeed, that estoppel by ver- dict goes a great way : Incledon v. Burges, 1 Show. 28 ; but the meaning is, that it shall run to aflfect privies as well as parties. I will not deny that an acquittal or conviction, where a magistrate is put in place of a jury, should have an effect equal to a verdict and judgment. But in neither case can the judgment or order be received as final, except for its proper purpose and object, with reference to the subject-matter of the suit, and upon the points there put in issue and directly deter- mined : 1 Phil. Ev. 334, Cowen & Hill's ed. In an action for wrongfully backing water upon the plaintifi:''s mill from a mill dam below, the defendant pleaded a former action for backing the water, in which the jury found for the defendant ; and insisted onthis as an estoppel. The plea was holden ill : Shaferw. Stonebraker, 4 Gill. & John. 345. The Court said of the former action (Id. p. 355): " The plea of not guilty, in the first action, put in issue not only every material fact con- tained in the declaration, but every defence admissible in evi- dence under such plea of which the defendant should offer tes- timony. And under the general issue in this form of action, the defendant may give evidence of a release, satisfaction, award, license to raise and stop the dam and back the water, until the time of issuing the writ in the first action ; or any jus- tification or excuse, or whatever will in equity and conscience, according to the existing circumstances, preclude the plaintiff from recovering." Among this group of circumstances, they IN DOMESTIC RELATIONS. 251 declare it impossible to see on which the case turned so as to apply the estoppel ; whether on want of seisin in the plaintiiF, or right in the defendant, or on the fact that the dam was not raised or stopped, that the water was not stopped or backed, that the plaintiff had released, or been satisfied, or licensed the injur}-, &c. I will not stop to show the still greater diversity of defence and excuse which may enter into the question before us. Hardly any magistrate has denied the relator's legal and moral right to the custody of his child ; at least it is impossible to see that such right has ever been questioned by any magis- trate whose decision has been returned to us ; nor should it be supposed, alter seeing that the Chancellor put the whole case on the fact that, at the time when he spoke, the mother was ex- cused in not following her husband to Nova Scotia, and that the child not being then two years old, should remain with her for nurture. He did not see fit to extend even this temporary indulgence, except as a consequence of what he thought the relator's harsh, though not illegal conduct towards his wife — certain instances of unkindness without apparent cause. The moment we depart from legal causes of separation on account of temper, which never arise except from bodily injury either actual or menaced, the points of the controversy are illimitable. They extend to austerity of temper, petulance of manners, rude- ness of language, a want of civil attention and accommodation, occasional sallies of passion, indeed through the whole chapter of family jars ; matters which, it is generally agreed, the par- ties should decide as well as they can in their own domestic forum. They are moral offences, in respect to which both par- ties are often about equally blameable. Happily, they are commonly fleeting and evanescent, a sort of sinning and repent- ing business, to which an estoppel can hardly be applicable. The very best men and best Avives are not always in full com- mand of their tempers. Sometimes where a good man's pros- pects in life are discouraging, as Mr. Barry's appears to have been, he may, for a time, fall into a state of habitual peevish- ness, annoying and tormenting the very persons who are dear- est to him. Such efiects, especially between husband and wife, pass away like a summer cloud, unless aggravated by re- crimination or desertion. It would surely be a harsh appliea- 252 ILLUSTRATIVE CASES tion of the rule of estoppel, to say that because a man stands convicted of being in bad temper, he should, therefore, be per- manently deprived of his children. I do not believe that any magistrate has intended to convict Mr. Barry of more, unless indeed it be the crime of living in Nova Scotia; a crime which I am so unfortunate as not to appreciate, and which I am happy to find the counsel for the defendant do not insist upon even as an auxiliary ground of defence. All the points of mere convenience have ceased to be the same as formerly, by his having acquired a settled residence, and means perfectly equal to the comfort and welfare of the child at its present in- creased age. The short answer, then, to the alleged estoppel is, that though it be admissible in a case precisely the same with that adjudged, it has no application to one which is in its own nature am- bulatory, and which has ceased to be the same by progression. The rule is, nemo delet bis vexari pro eadem causa. But be- fore we give it applicatit)n, we ought to be well assured that the cause is the same. If it be, the claim should be holden ex- tinguished, or suspended, according to its nature. Where the entire right has been once litigated and passed upon, it should not be stirred again. To allow a second trial, would be against public jiolicy, and therefore unjust; but it would be monstrously unjust to cut ofi" substantial rights which have not and never could have been tried, for the reason that they either did not exist, or were disallowed at the moment for some fleet- ing cause which has ceased to exist ; nay, though it have ceased to exist in the same form or degree which influenced the mind of the Judge on the first trial. On the right of the matter now before us, there never has been even an issue. That the relator is the husband and father, was never denied. The only issue was on the expediency of leaving the child for nurture with a mother who had with- drawn from her husband and bade him defiance. "Whether the same morbid excuse for desertion may continue, it is not neces- sary to inquire; but only whether the wrong should, under new circumstances, be allowed longer to suspend the assertion of right. The claim of the husband has throughout been al- lowed to be paramount by everybody except the wife. It has IN DOMESTIC RELATIONS. 253 not been denied that he is the legal head of the whole familj', wife and children inclusive ; and I have heard it urged from no quarter that he should be brought under subjection to a house- hold democracy. All will agree, I apprehend, that such a measure would extend the right of suffrage quite too far. Yet I do not see how this defence can be sustained unless we are prepared to go that length. Marriage is indeed regarded by our law as a mere civil contract ; hut not such an one as is capable of repudiation by a majority of the family, or even the assent of the whole. Bating some slight amelioration, its obligations should be maintained in all their ancient rigor. There is scarcely a doubt that matrimony in the severe form of monogamy, with the prerogatives of the husband as they are announced by the common law, are no less according to the order of nature and providence, than of positive institution. Where the child is of such tender years as to be incapable of election, it should be delivered to the father on his attending to receive it. That is this case. Bronson, J. After these parties were before us on a former occasion, a writ of habeas corpus, returnable before Mr. Justice Oaklet, was issued in October, 1840, and the final decision of the Judge against the relator was made on the first day of March following. As that order has not been reversed, the relator is estopped from asserting that he was entitled to the custody of the child at the time the writ issued, and it may be that the estoppel extends down to the time of the final decision of the Judge : Mercein v. The People, 25 Wend. 64. But that case decides nothing in relation to the rights of the parties at the present time. On the former occasion, the case was before us by way of review. It is now presented as an original proceeding, disem- barrassed of all collateral questions, and the only inquiry is, which of these parties has at this time the best title to the cus- tody of the child. Although we have a volume of papers, the merits of the case lie within a narrow compass. The relator is the father of the child, which is now about four years and a half old. Mrs. Barry, who had before deserted her husband, persists in the purpose 254 ILLUSTRATIVE CASES of continuing the separation, and claims the right to detain the child from the custody of its father. In this she is seconded and maintained by the defendant, with -whom she lives, and to whom the writ was directed. There has been no impeachment of the moral character of the relator, nor is there any thing to show a want of capacity on his part for the proper care and training of the child. He is in all respects as well qualified as the mother for the proper discharge of parental duties, and, so far as relates to a just sense of the obligation of marriage vows, he stands most decidedly on the vantage ground. The question then is, which of these parties, the father or the mother, has the best title to the custody of the child ? The opinion of this Court has been repeatedly e^jpressed, that by the law of the land the claims of the father are superior to those of the mother. The subject was considered and some of the cases were noticed in the opinion delivered by me as the organ of the Court in a former stage of this controversy : 25 Wend. 72, 83. It cannot be necessary to go a second time over the same ground. It is sufficient to say that my opinion remains uuchauged. We have been referred to a late English statute touching this question. But the British Parliament has long since ceased to give laws to this country, and our Legislature has not yet spoken. This statute proves, however, that in England even bad laws cannot be altered without the co-operation of both branches of the Legislature. I say bad laws, for it cannot be denied that there had been one or two decisions of the English Courts on this subject which fully justified the remark of Chief Justice Denman in the House of Lords, that the Judges " felt ashamed of the state of the law, and that it was such as to render it odious in the eyes of the country." We have been referred to this remark as one having a bearing upon the case under consideration. But as we have never followed, and never intend to follow the decision mentioned by the Chief Justice, we have no occasion to unite in the confession made by his Lordship. It is possible that our laws relating to the rights and duties of husband and wife have not kept pace with the progress of civilization. It may be best that the wife should be declared head of the family, and that she should be at liberty to desert IN DOMESTIC RELATIONS. 255 her husband at pleasure and take the children of the marriage with her. But I will not inquire what the law ought to he. That prerogative belongs to others. I will however venture the remark, even at the hazard of being thought out of fashion, that human laws cannot be very far out of the way when they are in accordance with the law of God. I think an order should be made that the child be delivered to the relator. !N'elson, C. J., dissenting. The present writ of habeas corpus is the fifth that has been issued by different Courts and officers in this State, at the instance of the relator, for the purpose of testing the question whether he is entitled to the custody of his infant daughter, Mary Marcein Barry. The third wi'it resulted in an adjudication by Judge Inglis that the order of the Chan- cellor upon the habeas corpus granted by him was a valid and conclusive bar to the re-hearing of all matters then or previ- ously existing, and Avhich might have been litigated in that proceeding. Judge Inglis' decision was finally reviewed in the Court for the cori'ection of errors, where it was affirmed ; and this has narrowed very much the range of investigation in re- spect to the present case. The fourth writ was issued by this Court during the general term in October, 1840, and was made returnable before Judge Oaklet, of the Superior Court of the city of JSTew York, pur- suant to the statute of 1837 : Sess. Laws of 1837, p. 230. The writ was discharged upon the 1st of March, 1841 ; the learned Judge holding that the child in question was not improperly detained, and directing, moreover, that it should remain in the custody of its mother. This adjudication has not been appealed from, and, of course, concludes the parties as to the matters in controversy, at least down to the time of the issuing of the writ: Mercein v. The People ex rel. Barry, 25 Wen. 64. Our only proper inquiry, therefore is, whether any new circum- stances have occurred since that period which have essentially varied the case. If not, the same judgment then given should be pronounced by us. So far as respects the unhappy difierences that have sprung up between the relator and his wife, and which have existed 256 ILLUSTRATIVE CASES for the last three or four years without abatement or approach to reconciliation, no change can be said to have taken place since Judge Oakley's decision, except perhaps an increased manifestation of alienated feelings and sentiments. I speak now simply of the fact; not intending to express an opinion upon the merits of the controversy one way or the other. These difterences have been spread with painful circumstan- tiality (I do not say unnecessarily) before each of the four tribunals which have heretofore taken cognizance of the case ; and they have failed to command a determination in favor of the relator. Nor have the personal character or circumstances in life of either of these parents materially changed since the hearing before Judge Oakley. The mother is, for aught I see, as competent and well qualified now, to have the care and nur- ture of the child, as she was then ; and the relator is in no better condition. The case, moreover, does not disclose any present or prospective advantages likely to accrue to the child from the proposed change of custody, beyond those heretofore exhibited and urged on the side of the relator. The only new features ascribed to the case as now presented, or which can with any sort of plausibility be deemed to have varied its legal aspect, are those mainly relied on in argument by the learned counsel for the relator ; viz., the advanced age of the child, and its alleged improvement in point of health and constitution. The condition of the child in these respects has always entered more or less into the consideration of the se^^eral tribunals be- fore whom the case has undergone investigation ; and doubtless, in the exercise of a sound judicial discretion in controversies re- lating to the custody of infants, such circumstances ought to have their due share of influence. As to the child's health, however, it appears from the return, and the fact is not partic- ularly denied or questioned by the relator, that no material alteration has taken place ; especially none more favorable or encouraging. It is stated by the mother, that the same reasons for her continued care and nurture of the child still exist in as great force as at the former hearing ; and that it has suflfered from six several attacks of dangerous illness since that period. The whole question, therefore, as it seems to me, turns upon IN DOMESTIC KEIiATIONS. 257 the eftect due to the circumstance that a year and six months has been added to the former age of the child. When the parties were before this Court on certiorari, we entertained a different opinion from that pronounced by Judge Inglis and the other officers who have severally passed upon this case: 25 "Wend. 72,83. Our opinion, we then believed, was in accordance with the well considered and well settled principles of the common law as understood and acted upon in this State for a series of years. We supposed that, in yielding assent to these principles, we were acting with a just and be- coming regard to the relation of husband and wife ; and not onl}' so, but in subserviency, also, to the permanent interests of society. Much of the elevated tone of public and private mor- ality which exists in a community, and much of its refinement, prosperity, and happiness, must ever depend upon the sacred- ness with which the marriage vow is regarded, and the inviola- bility of the rights and duties resulting from it. I do not be- lieve that the general doctrine on this subject was intended to be impugned, much less overruled, in the opinions delivered in the Court for the correction of errors. On the contrary, the determination of that Court should, I think, be regarded as maintaining only that the facts and circumstances then dis- closed, were not such as to call for judicial interposition in the relator's behalf; and that the case therefore fell within some of the exceptions to the general rule. They differed from us in the application of the law. Be this as it may, however, it is quite certain that the facts and circumstances which appeared before Judge Oakley, and which were by him held insufficient to entitle the relator to the custody of his child, should be so regarded by us also ; that decision, while unreversed, being conclusive upon the parties and subject matter. I am of opinion that the case has not been materially varied on the present occasion. The circum- stance of a year and a half having been added to the age of the child since the former hearing, seems to me too unimpor- tant to afford ground for changing the legal judgment of a Court. It appears affirmatively, moreover, that the personal care and nurture of the mother were as necessary to the well being of the child at the period of the former hearing, as they 17 258 ILLUSTRATIVE CASES are now. The subject-matter therefore remains essentially the same ; and if so, the same result should follow. My brethren, however, have arrived at a different conclusion, and an order must therefore be entered that the child be delivered to the relator. Ordered accordingly. Sch. s. 245, 246, 247 ; Johnson v. Ferry, 34 Conn. 259 ; People v. 01m- stead, 27 Barb. 9. The American rule is that the welfare of the child is to be considered of paramount importance, and the custody may be given to the mother or even to a stranger. People v. Mercein. 3 Hill, 399. Ante, p. 234. Sch. s. 248 ; 2 Kent, 205 ; Goodrich v. Goodrich, 44 Ala. 670. The earnings of the minor child belong to the parent, and are liable for the parents' debts. Godfrey v. Hayes. Supreme Court of Alabama, 1844. 6 Ala. 501. Error to the Circuit Court of Sumter. Detinue by the defendant in error, against the plaintiff in error, for a slave. From a bill of exceptions, taken at the trial, it appears that the defendant produced, and proved, a bill of sale, for the' slave, from his father to him. That the son, being a minor, IN DOMESTIC RELATIONS. 259 living with his father, by contract with the latter, assisted ia repairing a mill, the property of the father, which was the consideration for the conveyance of the slave ; and proved that the labor was equal to the value of the slave. Both the son and the slave remained with the father after the conveyance. At the time of the conveyance the father was possessed of con- siderable property, and in good credit, though considerably in- debted at the time ; and that, subsequently, all his property had been sold, without satisfying his debt ; the slave, so con- veyed to the son, being sold under executions against the father. Upon these facts, the counsel for the defendant moved the Court to charge the jury, that if they believed the father was indebted before and at the time of the contract with his infant son, and that the negro in controversy was sold under execution on account of a pre-existing debt, that then the plaintifi' ought not to recover. And, further, that when a parent is indebted, and his minor son, who is living with him, does work for the parent under contract with him, and the parent, in consideration thereof, transfers a slave or other prop- erty to the minor, such transfer is void against pre-existing creditors. These charges the Court declined giving, and charged the jury: 1st. That if they believed the contract was entered into to delay, hinder, or defraud creditors, it was void ; 2d. That though the son was a minor, and living with his father, yet if the work, which was the consideration of the transfer, was done pursuant to a previous contract, it was valid, even against pre-existing creditors ; but if the work was performed without any previous contract, and the father, after it was done, had conveyed the slave in satisfaction thereof to the son, the transfer would be void against pre-existing creditors. To all which, the defendant excepted ; and judgment being ren- dered for the plaintiff, the defendant prosecutes this writ, and assigns for error the matters of law arising on the bill of exceptions. Boyd, for plaintiff in error, cited 3 Porter, 196 ; 3 Johns. Ch. R. 481 ; 15 Mass. 274; 2 Wendell, 461. Smith, contra, cited 12 Mass. 375 ; 15 Id. 272 ; 2 Id. 113 ; 10 260 ILLUSTRATIVE CASES Id. 287 ; 1 Id. 525 : 3 Pick. 201 ; 7 Cow. 92 ; 5 Wend. 204 ; 5 Johns. Rep. 324. Ormond, J. From the ohligation of the father to support his children during minority, he is entitled to their services and to the earnings of their labor. The right and the duty are reciprocal ; for it cannot be doubted, that if the father should refuse to support his child, and drive him from the parental roof, that he could not claim his earnings : liTightin- gale V. Withington, 15 Mass. 272. The law would be the same if the father should permit the child to labor for his own benefit ; but in such a case, the child must cease to be a mem- ber of the family ; the relative obligations of parent and child must cease; in the language of the case just cited, the child must be " emancipated." In such a case, no doubt, the father might employ his child, and compensate him for his labor, and the product of his earn- ings would be beyond the reach of the creditors of his father, as they have no claim, legal or moral, on the labor of his child; but when the child is a part of the family, the product of his labor belongs to the father ; and is, therefore, subject to the payment of his debts. These principles are decisive of this case. Here, the son re- mained under the parental roof, and the family relation of father and child was not severed. The obligation of the father for maintenance, therefore, continued ; and, as a consequence, he was entitled to the earnings of the son. If it were conceded that this contract could be enforced by the son against the father, it would avail nothing in this case. The father being entitled to his earnings, the conveyance of the slave on account of the labor of the child was without consid- eration, and void as against creditors. Let the judgment be reversed, and the cause remanded. Sch. 252, 254 ; Hammond v. Corbetl, 50 N. H. 501 ; People v. Mercein, 3 Hill, 399. IN DOMESTIC RELATIONS. 261 There is no implied promise to pay for services rendered by and between members of the same house- hold or family. Pellage v. Pellage. Supreme Court of Wisconsin, 1873. 32 Wis. 136. Appeal from the Circuit Court for Dane County, The plaintiff, George F. Pellage, brought his action against his father, John H. Pellage, to recover compensation for services rendered in managing and working defendant's farm after plain- tiff became of age. The case is fully stated in the opinion. Verdict and judgment for plaintiff, and defendant appealed. Francis Massing, for appellant, argued that the amendment to the complaint, which was allowed on the day of trial and' three years after issue joined, changed the cause of action so. materially as to take defendant by surprise, and the judgment on that ground alone should be reversed. As to the instruc- tions asked by the defendant and refused by the Court, counsel contended that, plaintiff having relied upon an express promise, the jury must find that or none. !N'o promise can be implied so long as the relations of father and son hav^ not been severed. William F. Vilas, for respondent, contended that the amend- ment to the complaint did not change the cause of action, but related only to the quantum of damages, presenting the double phase of such cases under the common-law practice, where, if the jury did not find the fixed rate, plaintiff might still recover upon the quantum meruit: Whitney v. Ch. & ^N", W. P,. W. Co., 27 Wis. 327. The allowance of the amendment was discretion-' ary, and, appellant having averred no surprise or injury, cannot complain that it was not just. The first instruction asked by. defendant and refused was clearly erroneous, because it con- tained the words, " \\'hat he was to receive as compensation.''' It was enough that plaintiff showed an agreement that he. should be paid for his services; and, in the absence of a^stipu- 262 ILLUSTRATIVE CASES lated price, he was entitled to recover what they were reason- -ably worth. Cole, J. A motion was made to strike out the bill of excep- tions in this case, which was not decided when the cause was reached in its order for argument. The cause was, however, argued, and submitted upon the understanding that it was with- out prejudice to the motion already made. The questions aris- ing upon the motion, therefore, are first to be considered. The ground of the motion to strike out the bill is, in sub- stance, that it was not served and settled in time, and that there was no valid order made enlarging the time for settling the same. Written notice of the entry of judgment was given by the plaintiff on the 11th of December, 1871. On the 20th of February, 1872, the defendant, upon affidavits, obtained from a Court commissioner an order to show cause why the time for settling the bill should not be enlarged thirty days from the hearing of the motion to show cause. And upon the hearing of this latter motion, on the 2d day of March, the commissioner granted an order that the time for serving the bill of exceptions and the amendments thereto, and for settling the same, be en- larged for thirty days from that date, upon the payment by the defendant to the plaintiff's attorney of ten dollars, costs of the motion, within five days from that date. It satisfactorily appears that, owing to a mistake of the defendant's attorney as to the actual date of the order enlarging the time, the ten dol- lars were not paid within five days from the 2d of March ; but ■upon cause shown, the commissioner granted another order ex- tending the time for paying the ten dollars until the ISth of March ; and it is conceded that the money was left at the office of the plaintiff's attorney before the 13th, who refused to receive it because it was not paid in compliance with the order bearing date March 2d. It is now claimed in support of the motion to strike ont the bill, that, as the time had fully elapsed before the application was made to the commissioner, he had no pgwer to act in the matter. Where the power is given the Judge at chambers, or Court commissioner, to enlarge the time for serving exceptions and amendments, the statute, it is said, only confers the power IN DOMESTIC BBLATIONS. 263 to extend the time before it has expired ; but when the limi- tation has run, the power is gone. Such, it is claimed, have been the decisions in New York under a similar provision. This Court has decided otherwise. In the case of Kelley v. The Town of Fond du Lac, 29 Wis. 439, this precise question was presented for adjudication, and it was held that the power of a Judge or Court commissioner to grant leave to serve and settle a bill of exceptions after the time had expired was clearly given by the statute, and that it was proper to exercise that power when the delay was satisfactorily excused. That deci- sion is decisive upon this question of practice. Again, it is said, conceding that the commissioner had the power to enlarge the time, he acted erroneously in granting the order upon the affidavits presented. But upon that point we only deem it necessary to say that, to our minds, the facts and circumstances stated in the affidavits present a case fully justi- fying the granting of the order. The delay in preparing the bill is satisfactorily explained. Further, it is objected that the order being upon terms, on the failure to comply with it and to make payment of the ten dollars within five days from the 2d of March, it became in- operative, or equivalent to an order denying the application in the first instance. But we cannot well understand how any such consequences should follow under the circumstances. It appears very clearly that the defendant intended to comply with the order, and doubtless would have done so but for the mis- take of his attorney as to its actual date. It is said that the commissioner had no power to enlarge the time to pay the ten dollars, or in any way to modify his former order, even upon good cause shown. But why not ? "When it was made to ap- pear that the failure to comply with the original order was solely owing to the mistake of the attorney as to its date, we think the commissioner had power to extend the time for pay- ing the ten dollars. This, it seems to us, was necessarily in- cluded in the power to impose the conditions originally. We are, therefore, of the opinion that the motion to strike out the bill of exceptions must be overruled. And this brings us to a consideration of the case upon the merits. This action is brought by the plaintiff", who is a son of the 264 ILLUSTRATIVE CASES defendant, to recover compensation for services rendered after he became of age. He alleged in his complaint that the defen- dant hired him in the month of October, 1857, to conduct and carry on the defendant's farm, and that the defendant then promised and agreed to pay him what his services were reason- ably worth so long as he, the plaintiff, should remain in such service. The defendant in his answer denied this agreement, and alleged that the plaintiff' chose to stay with him as a mem- ber of his family the same as his other children, worked as they did, and had his support and clothing from the avails of the farm ; and denied that he ever hired the plaintiff in any capa- city whatever, or ever agreed to pay him anything for his ser- vices. On the trial, the plaintiff asked leave to amend his complaint by inserting an allegation that after he entered upon such service for the defendant, the latter promised to pay him, over and above his board and necessary clothing, the sum of one hundred dollars per year, and that the payment of such sum to the plaintiff' should not prejudice his right to share as an heir equally with the other heirs in the defendant's estate on the decease of the defendant. This amendment was allowed against the objections of the defendant, and the ruling of the Court allowing the amendment is the first exception relied on for a reversal of the judgment. It appears to us there was no error in allowing the amend- ment. It did not materially change the cause of action in aver- ring that the contract was that the plaintiff" was to have a given sum over and above his board and clothing per year. We can- not see how it could have worked any surprise or injury to the defendant, and nothing of the kind was alleged when the amendment was allowed. It was clearly competent for the Court to permit it to be made. The plaintiff' might fail to prove that the contract of hiring was as he first stated, viz., that he was to be paid what his services w'ere reasonably worth, and yet be able to show that there was an express agreement that he was to be paid at the rate of a hundred dollars per annum. The only other exception arising upon the record, material to be considered, is the one taken to the refusal of the Court tp IN DOMESTIC RELATIONS. 265 give the instructions asked on the part of the defendant. Those instructions are as follows : — " If the jury find that the plaintiff, except during short in- tervals, resided with his father, the defendant ; had there his board and clothing, and whatever in the way of money he needed, the same as any other member of the family ; and that there was at no time any agreement what he was to receive as compensation, or that he was to receive anything, then he can- not recover." " To entitle the plaintiff to recover, he must show that he made an agreement with the defendant that he was to be paid for his services, either at a fixed price or what they should be worth." It is insisted on the part of the plaintiff that there is no suf- ficient exception to the refusal of the Court to give these instruc- tions, so as to raise any question as to their correctness. It is stated in the bill of exceptions that the Court refused to give them because the jury might think " it necessary to prove an express promise, but gave the instructions proposed by the plaintiff's attorney and his own, and the defendant, by his counsel, excepted." Then follow the instructions which were given at the request of the plaintifl', and the charge of the Court, to which DO exception was taken. But, as we understand the exception, it was intended to refer solely to the refusal of the Court to give the instructions above quoted, and cannot well be made applicable to anything else, either in the general charge or instructions given. And consequently the question arises : Were not the instructions correct as propositions of law, and can it fairly be assumed that the defendant was not prejudiced by the refusal of the Court to give them ? The relation between these parties was that of father and son ; and where such a relation of kindred exists, it is well settled that the law will imply no promise on the part of the father to pay for the services of the son rendered by the latter after he arrives at age. The presumption is that the child ren- ders the service gratuitously, or in consideration of having a home with his father, of being furnished with board and cloth- ing, and of receiving care and attention in case of sickness. And, therefore, in order to sustain an action for compensation 266 ILLUSTEATIVE CASES for services by a child against the father, this Court has in effect held, in several eases, that it must be shown by the evidence that a contract existed between the parties to pay for such ser- vices, and that such a contract, as to proof of its existence, is not to be placed on the same grounds as "a contract between strangers unaffected by any personal relations :" Fisher v. Fisher, 5 Wis. 472 ; Kaye v. Crawford, 22 Id. 321 ; Hall v. Finch, adm'r, 29 Id. 278. In the last case there is quite a full examination of the authorities upon this subject by the Chief- Justice, and the language of Gibson, C. J., in Bash v. Bash, 9 Pa. St. 260, is cited with approbation as laying down the proper rule of evidence required to establish contracts of this nature. And that rule is, that the evidence of a contract to compensate the services of a child must be positive and direct, and the con- tract cannot be inferred from circumstances and probabilities ; in other words, that the plaintiff in this case, to be entitled to recover, was bound to show that there was an agreement be- tween him and his father, by which he was to be paid for his services, either a fixed price or what they were reasonably worth, and that the evidence of this agreement must not rest upon probabilities nor be inferred from circumstances. There should be evidence which would warrant a jury in finding that there was an express contract or agreement to that effect. This is the substance of the instructions asked by the defendant, and it seems to us they should have been given. It is true, the Circuit Court charged that in ordinary cases, where a person performed labor for another, the presumption was that the person for whom the services were performed promised to pay what the services were reasonably worth, and that the law would imply an obligation to that effect ; and the jury were directed that this presumption did not arise in the case of a son who continued to live with his father after major- ity, as he had before, and who worked for and was supported and clothed by his father as a member of his family. And the jury were further told that in such cases the son, if he claims compensation, must show that he remained with his father, per- forming services, with the expectation and understanding upon the part of both himself and his father that he was to receive compensation for his services, and that this was a question of IN DOMESTIC RELATIONS. , 267 fact for the jury to determine from all the evidence relating to the circumstances proven ; and that if they should find that the plaintiff continued to work for his father after he became of age, ■with the expectation and understanding upon the part of both of them that he was to receive compensation, he was entitled to recover ; otherwise not. At first we were inclined to consider this charge as equiva- lent to directing the jury that they must find that a contract or agreement was entered into between the parties in respect to compensation for services, and therefore that the defendant's instructions were substantially given in the general charge. But we are satisfied that this could not have been the meaning of the learned Circuit Judge, but that he intended to give the rule of law that there might be a recovery, although the evi- dence failed to establish a contract to make compensation, par- ticularly iu view of the reason stated for refusing to give the instructions asked by the defendant, that " the jury might think it necessary to 'prove an express 'promise." This \\ould seem to indicate that the Circuit Judge held there might be a recovery, although the nature and amount of proof fell short of establish- ing a distinct agreement between the parties in respect to mak- ing compensation ; in other words, that the case stood on sub- stantially the same ground as a contract between strangers, and that evidence of a distinct agreement to make compensation was unnecessary, but that the obligation might be inferred from circumstances. In this view we think that the Circuit Court erred as to the rule applicable to the case, and that the defen- dant was prejudiced by the refusal to give his instructions, which contained the correct rule upon the subject.. It is said that the first instruction was erroneous because it contains the words, "what he was to receive as compensation," while it was sufficient to show an agreement that he was to be paid for his services. The language of the instruction is, that the plaiutifif could not recover if the jury should find that there was at no time any agreement "what he was to receive as com- pensation, or that he was to receive anything." As we have already remarked, we think the instructions were substantially correct, and that the Court erred in refusing to give them. 268 ILLUSTEATIVE CASES Dixon, C. J. I fully concur in the opinion above rendered by my brother Cole, and will add only a few words by way of explanation. It may, perhaps, be going too far, and be a deduc- tion not authorized from Hall v. Finch, to say that, in every case of this kind, there must be positive proof of an express contract for the payment of wages or the making of pecuniary compensation for the services performed. There may undoubt- edly exist other facts and circumstances, clear and unequivocal proof of which, according to the rule of evidence held in such cases, will be equivalent to direct and positive proof of an ex- press contract. An express contract to pay, or the relation of master and servant, may be as fairly and incontrovertibly estab- lished by circumstantial evidence as by that which is direct. It was held in Fisher v. Fisher, 5 Wis. 472, that where a sou continued to reside with and labor for his father after arriving at the age of majority, there might be circumstances, short of direct and positive proof of an express promise on the part of the father, entitling the son to recover for such services. As observed in the opinion in that case, the plaintiff' might have shown " by the course of dealing between him and the defend- ant — as, for instance, that they kept books of account, or had had settlements, or acts of this kind — that the relation of debtor and creditor subsisted between them." Very similar are the observations of Judge Eedfield in Andrews v. Foster, 16 Vt. 556, 560 ; and. it is not, and has not been, the intention of the Court to overrule the doctrine thus clearly settled in the par- ticular named. It is obvious that the agreement or promise to pay may be as clearly and unequivocally shown, leaving no doubt of its existence, by proof of facts and circumstances of the kind referred to, as by any other proof which can be offered ; and the cases — this one and that of Hall v. Finch — are not to be understood as infringing or questioning this doctrine, or that such evidence to prove the contract may not be received, and, if sufficient, may not establish it. By the Court. The judgment of the Circuit Court is re- versed, and a new trial ordered. Lipe V. Eisenlerd, 32 N. Y. 229 ; House v. House, 6 Ind. 60 ; 'VVeir v. Weir, 3 B. Mon. 645. IN DOMESTIC RELATIONS. 269 3. For the injuries to a child through the neglect or wrongful act of another, a right of action accrues to the parent. Commissioners op Harford County v. Hamilton. Supreme Court of Maryland, 1883. 60 Md. 340. Miller, J. This suit was brought by the mother of a minor child, whose father had died before the injury complained of. The declaration charges that the defendants were bound to keep the public roads of the county in repair, that one of said roads was negligently suffered by them to be out of repair, whereby George H. Hamilton, the minor son of the plaintiff, in travelling over the same with due care, was hurt and injured ; that the father of said George is dead, and the plaintiff, his mother, was and is entitled to his services, and bj' reason of said negligence of the defendants, and the hurt and injury to her son occasioned thereby, she was deprived of his services, and suffered great loss in being so deprived thereof, and was put to great expense, cost, and trouble in watching, nursing, and waiting on him, and in medical attendance, which she had to procure and pay for, and which was rendered necessary by the hurt and injury aforesaid. The defendants pleaded non cul. and the case was tried on issue joined on this plea. At the trial the plaintiff proved she was the mother of George H. Hamilton named in the' declaration, and that his father died in the year 1878. She also offered evidence to prove that the road mentioned in the declaration was one of the public roads of Harford County, and at the time of the al- leged injury was out of repair and unsafe for public travel ; that her son was then seventeen years of age, able to do the work of a man, was a good farm-hand, and was living with and working for her ; that on the night of the 6th of August, 1880, while riding over the road referred to, on a gentle and sure-footed horse, he was, by reason of the bad condition of the 270 ILLUSTRATIVE CASES road and without any negligence on his part, thrown from his horse and severely injured, from the eifects of which he was confined to his bed for eight or nine months, requiring constant nursing, care, and attention, and medicine and medical atten- dance, all of which were furnished by the plaintiff, and that during all that time, and ever since, he has been unable to do an^- work. The defendants then offered evidence to prove that at the time of the injury the road was in good condition and repair; that there was no unsafe or dangerous place in it at or near where the accident happened, and that it was then and there in safe condition for public travel. They also offered evidence to prove that at the time of the alleged injury the son was not in the service or employment of his mother, but was working as a farm-hand with his brother on a farm the latter had leased from one Vail, and was earning his own support. This was all the evidence, so far as the record shows, offered on either side. Several prayers were then offered on both sides and to the rulings of the Court upon these the single ex- ception in the case was taken. The appellants' counsel have mainly relied upon two objections to these rulings : — 1st. They insist that a mother is not, hj law, bound to sup- port her minor son after the death of his father, nor is she en- titled to his services, and hence there was error in allowing a recovery for such services under the plaintift''s first and third prayers, which wero granted. In the case of Keller v. Donnelly, 5 Md. 217, which was an action by a mother for the seduction of her minor daughter, ^er quod servitium amisit, the Court say : " The policy of the legislation of this State in regard to females is, that until they are eighteen years of age they are to be con- sidered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at age. The Act of 1834, ch. 228, expressly recognizes the mother as the natural guardian of her children, making no distinction between males and females." And in Coughlan's Case, 24 Md. 107, which was an action under the statute, in the name of the State for the use of a mother, against a railroad company for the killing of her infant son, it is ex- IN DOMESTIC EELATIONS. 271 pressly stated that " the law entitles the mother to the services of her child during his minority, the father being dead." But assuming these expressions are ohiter dicta, and not adjudications of this question, still the appellants' counsel concede, as they must, that the mother may recover for his services, provided the son was, at the time of the injury, actually living with meanings. It must mean either the end of the guardianship supported by, and working for her, and was not living with and working for his brother, and gaining his own support. Now the plaintiff's first prayer, as we understand it, allows a recovery for his services only upon the finding by the jury that he was so living with and supported by his mother. It states that the plaintiff is entitled to recover if the jury find, among other facts, that the son "at the time of the in- jury lived with the plaintiff, and was supported, by her, and has ever since so lived with and been supported by her." Under this instruction the jury could not have found for the plaintiff unless they believed these facts to have been proved, and believing them, and so finding, they must have believed the testimony on that subject offered by the plaintiff, and not that offered by the defendants. Upon their own theory of the law, therefore, we do not see that the defendants have suffered any injury by the rejection of their second and fourth prayers, inasmuch as the jury were bound to find the facts' stated in the plaintiff's first prayer in order to render a verdict in her favor. Again, upon the assumption that they found, as they must have found, that the son was thus living with and supported by his mother, she was clearly entitled to recover for the care and labor of nursing him, and the expense and costs of medi- cines and medical attendance to which she was subjected on account of his injury, and which she procured for him. We therefore find no error in the rejection of the defendants' fifth prayer, or in the measure of damages stated in the plaintiff's third prayer. By the granting of the defendant's third prayer the jury were instructed the plaintiff' was not entitled to re- cover for the pain and suffering of her son, nor for her own anxiety and suffering on his account. 2d. Objection is also taken to the plaintiff's first prayer because it does not leave to the jury to find that the defend- 272 ILLUSTEATIVE CASES ants were guilty of any negligence, but allows a recovery simply on the ground that the road was in bad condition, with- out regard to how or when it became so, or the efforts that had been made to repair it. The argument in support of this posi- tion is in effect that the bad condition of the road was evidence upon which the jury might find the negligence alleged in the declaration, but it was only evidence, and non constat there was negligence because the road was, at that particular time, in bad condition ; that the duty of the defendants does not require them to keep the roads in good condition at all times and under all circumstances, but to have them repaired as soon as practicable after such repairs are found necessary. And to illustrate this view of the law they offered several prayers, as, for instance, that they would not be held responsible for the action of the elements, and if the jury find that by reason of a storm or freshet, or other natural cause, the road in question was rendered unsafe for travel, the defendants would not be liable for the injury unless the jury found that they neglected to have it repaired in a reasonable time. The plaintiff's first prayer, however, is, in this respect, iden- tical with the one approved by this Court in Gibson's Case, 86 Md. 230, 237 ; and moreover there is no evidence in the record of any circumstance whatever that would exonerate them from liability, even if the appellants' view of the law, as well as of their duty, were correct. They set up no such de- fence at the trial, but simply offered evidence to prove that the road, at the time of the injury, was in good condition and safe for public travel. As the ease stands upon the record no other instructions upon this subject were needed than those in the plaintiffs first and the defendant's eighth prayer, which was granted, and there was clearly no error in rejecting their first, sixth, and seventh prayers. The plaintiff's second prayer (which was also granted), that the care and caution required of one travelling on a public road is simply such as persons of common prudence ordinarily exercise, announces a plain legal proposition, and no objection was made to it in argument. Judgment affirmed. Seh. s. 258, 259 ; Dennis v. Clark, 2 Cush. 347..' IN DOMESTIC KELATIONS. 273 The action given parents for the seduction of their daughters is at common law based on the loss of services. McDaniels v. Edwards. Supreme Court of North Carolina, 1847. 7 Iredell Law, 408. Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1847, his Honor Judge Dick pre- siding. This was an action on the case for the seduction of the plain- tiff's servant and daughter, Mary. Plea, not guilty. The plaintiff introduced the daughter as a witness, and she stated that she always lived with her father and labored as one of the family until she went to live with the defendant, as hereinafter stated ; that in the month of February, 1844, her father hired her to the defendant at fifty cents a week to man- age his household atfairs during the expected confinement of his wife ; and that she then went to the defendant's and re- mained there until October following, when she returned to her father's in a state of pregnancy from cohabitation with the defendant during the month of May of that year and while she was living with the defendant. She further stated that she has lived ever since with her father and labored in the family, and that she was there delivered of the child of which she was pregnant by the defendant in the month of May, 1845. She further stated that she was uncertain whether she was 21 years of age in September, 1843, or became of that age in September, 1844 ; and that she received from the defendant part of her wages while she lived with him, and her father received part. On the part of the defendant evidence was given that the . daughter herself made the contract for services with the de- fendant, and that she was of full age two or three years before she made it or went to his house. The Court instructed the jury that if the daughter was an 18 274 ILLUSTRATIVE CASES infant when the seduction occurred they ought to find for the plaintiff; and, also, that if they believed she was of full age when she went to live with the defendant and was seduced by him, yet if the plaintiff had made the contract under which the daughter went into the defendant's service, and received the wages to his own use, then and in that case they ought to find for the plaintiff. The jury gave a verdict against the defendant, and from the judgment he appealed. Edney and J. W. Woodfin, for the plaintiff, cited the follow- ing authorities : 3 Blac. 141 note — 1 Wend. 447; Briggs v. Evans, 5 Ire. 16 ; 2 Term Rep. 167 ; 6 East, 387 ; 5th East, 45, 47. Francis, for the defendant, cited the following authorities : Steph. !N". P. 3 vol. 235, and cases there referred to; 3 Dev. & Bat. 44 ; Postlewait v. Parks, 3 Bur. 1878 ; Bennett v. Alcot, 2 Term Rep. 166. RuFFiN, C. J. Actions of this kind have been frequent in modern times, and we have looked into most of the reported cases ; but we have been unable to find one that bears out the latter branch of the rule laid, down to the jury in this case. Since the case of Postlewait v. Parks, Bur. Rep. 1878, it has been perfectly understood that the gist of the action is the re- lation of master and servant and the loss of service. There- fore, though very slight service is suflacient to establish that relation, de facto, between father and daughter, yet it is indis- pensable to show some service in order to have that effect. Where the daughter is living with the father, whether within age or of full age, she is deemed to be his servant, for the pur- poses of this action ; in the former case absolutely, and in the latter, if she render the smallest assistance in the family, as pouring out tea, milking, or the like. So, also, if the daugh- ter be within age, the action may be maintained by the father, to whom she returned to lie in, although she was on a visit to or living with another person at the time of the seduction : Harper v. Luffkin, 7 B. & C. 387, unless the daughter had not the animus revertendi, in which case she could not bj' any fic- tion be considered in the father's service : Deen v. Peel, 5 East. IN DOMESTIC KBIiATIONS. 275 45. The reason why the father may have the action for seduc- ing his infant daughter, though not living in his family, is that she is, both legally and actually, sub potestate pairis. But that shows that the action will not lie when the daughter is of full age and not living in the father's family, but in the actual em- ployment of another person. There is no ease that gives any color for the supposition that it would lie under those circum- stances, except that of Johnson v. McAdams, stated in the argument of counsel in Deen v. Peel. But that was the decis- ion of a single Judge at Nisi Prius, and the daughter went from her father's on a short visit merely, to a lady, and not on a contract of hiring, and moreover was under age when she went away, though she obtained full age before the seduction. Even in that case Mr. Justice Wilson hesitated very much ; saying at first that " where the daughter was of full age and no part of the father's family, he thought the action not main- tainable." It is true he afterwards told the jury that the con- sent of the father to the daughter's visit was to be inferred from the circumstances, and, therefore, that she might be con- sidered as a part of the family. But the case was never car- ried before the Court in Banc, and when cited by counsel did not receive any expression of approbation. If, however, that case was right, it has no application to the present, as here the daughter was living with another person, and was his actual servant upon a contract of hiring ; which comes within the rule laid down by Judge "Wilson himself, above quoted. That rule was adopted by this Court in the case of Phipps v. Gar- land, 3 Dev. and Bat. 44. There it was expressly stated that the daughter, who was of full age, went to live with Garland with her father's consent, and her animus revertendi was clear, as she left her property at her father's, and she frequently re- turned there on visits, and on such occasions washed and cooked ; yet it was held that she could not constructively be considered the father's servant, and therefore that the action did not lie. The reason why the action does not lie in that case is that the father has no legal right to the service of the daughter, nor authority over her, and she is not, de facto, a ser- vant in his employment, but stands in that relation to another. Therefore the circumstance that the father and this defendant 276 ILLUSTRATIVE CASES made the bargain for the daughter's services and wages can make no difference. For although that might be the form the transaction assumed, yet in law the contract was that of the daughter, as she was sui juris. We do not say how it might be if there had been an actual contract between the father and daughter for her service to him for a definite period, and within the term the father, bj' her consent, hired her to the defendant and he seduced her. But if the father could have the action in that case, it would be by force of the express contract between him and the daughter for her time and labor ; and that could ' not authorize this action, where there was no such contract and no ground for implying it. The defendant did not become en- titled to the services of this young woman in virtue of any contract of the father ; for she was sui juris, although he may be called her master while she remains in his family, and be cannot upon mere implication be allowed the authority as mas- ter to hire her out, so as to make it obligatory upon her, and thereby continue the relation of master and servant between them. In law the contract on which she served the defendant was her own, and the wages were hers. The fiction of service has been carried far enough in actions of this kind, without pushing it to this extreme length; which^ if admitted, would break down the rule itself that the action is founded on loss of service. For next it would be said if the parent aided in the support of the daughter, as by giving her a garment or nursing her in sickness, that she might be considered as continuing to be his servant, though of age and living in service abroad, and thus it would come at last that the action was that of a father and not a master, and present the extraordinary instance men- tioned by LoED Mansfield in Satterthwaite v. Dewhurst, 5 East, 46, note, of an action by a person on account merely of incontinence between two others, both of whom are of full age. Per Curiam. Judgment reversed and venire de novo. Badgley v. Decker, 44 Barb. (N. Y.) 577 ; Yassel v. Cole, 10 Mo. 634. In many States by statute the loss of service is no lonser the gist of the action : Minn. Gen. St. c. 66, s. 33 ; Eussell «. Chambers, 31 Minn. 54. IX DOMESTIC RELATIONS. 277 4. Parents' liability for injuries committed by the child. The parent is not liable in damages for the injuries or torts of his child, committed without the knowledge, consent, participation, or sanction of the parent. Baker v. Morris. Supreme Court of Kansas, 1885. 33 Kan. 580. Valentine, J. The only question presented to tins Court for determination is, whether the following bill of particulars sets forth facts suflBcient to constitute a cause of action. The amended bill of particulars (omitting Court and title) reads as follows : — " ifow comes the above plaintiff, and for cause of complaint against said defendant says, that said defendant is justly in- debted to him in the sum of seventy-five dollars, as follows, to wit : That on or about the 21st day of December, 1883, one Frank Baker, a son of said defendant, and a minor, did neg- ligently and carelessly fire and shoot off a gun in the direction of the stable of said plaintiff'; that said stable contained one mare pony, the property of said plaintiff; that said shot so fired and shot off penetrated the said stable, and struck and killed said mare, said property of said plaintiff; that said mare was of the value of $75, — thereby damaging said plain- tiff in the sum of $75. " Plaintiff" further says, that after said death of said mare, said plaintiff requested said defendant to pay for said mare so killed ; that '■ — agreed so to do, but has failed so to do ; plaintiff' therefore says that said defendant voluntarily and of his own free will did, immediate]}' after the injuries and dam- ages complained of hereinbefore, come to plaintiff, and said he would pay this plaintiff the full value of said mare so killed by his said son, thereby ratifying and confirming the said acts of his son Frank, and thereby becoming responsible to plain- 278 ILLUSTRATIVE CASES lift" for the damages sustained by plaintiff. Therefore, plain- tiff prays judgment against said defendant for the sum of $75 and costs." Under the authority of the case of Edwards v. Crume, 13 Kas. 348, the defendant below (plaintiff in error) is not liable, unless by his subsequent promise and supposed ratification he has made himself liable. In that case it is held as follows : — " Where a minor son who lives with his father and is under his father's control commits certain wrongful acts, but where the said acts have not been authorized by the father, are not done in his presence, have no connection with the father's busi- ness, are not ratified by the father, and from which the father receives no benefit, the father is not liable in a civil action for damages for such wrongful acts." See also Schouler on Domestic Relations, 361. The promise made by the defendant to pay the plaintiff for the mare killed is not valid. It was a collateral undertaking, made without consideration, and was not in writing : Sec. 6, Statute of Frauds. And there was no ratification of the defendant's son's acts, except such as resulted from the promise itself; and this in fact was no ratification at all. The defendant might have disapproved the son's acts wholly and entirely, and condenmed them severely, and yet promised to pay the value of the mare killed. The defendant had nothing to do with the killing of the mare, directly or indirectly, proximately or remotely ; it was not done in his name, nor in his presence, nor authorized by him, nor had it any connection with his business, nor was it any benefit to him, nor has he received any benefit therefrom, or from any transaction connected there- with, or with this case, nor has the son's liability been relin- quished or released, nor has the father by mutual agreement of the parties been taken in the place of or substituted for the son. Under the circumstances, the son only is liable, and not the father. The judgment of the Court below will be reversed, and the cause remanded for further proceedings. All the Judges concurring. Sch. s. 265 ; Baker v. Haldeman, 24 Mo. 219 ; Faulin v. Howser, 63 IlL 312 ; Edwards r. Crume^ 13 Kas. 34S. IN DOMESTIC RELATIONS. 279 5. Children, (a) Their duties. There is no common law rule enforcing the moral obligation resting upon children to support, reverence, and obey their parents. Becker v. Gibson. Supreme Court of Indiana, 1880. 70 Ind. 239. NiBLACK, J. This was a suit upon a physician's bill. The complainant charged that the defendant, William E. (4ibson, was indebted to the plaintifl", Frederick "W". Becker, for medical services rendered, and for medicines furnished to John H. Gibson and Mary E. Gibson, the father and mother of the defendant, during the year 1875, at the special instance and request of the defendant, and upon his special promise to pay for such services and medicines. The answer was in general denial. There was a verdict, and judgment for the defendant. The only questions discussed here are such as arose upon a motion for a new trial. The cause was tried upon the theory that the services and medicines sued for were rendered and furnished respectively at the special request of the defendant. Louis M. Eoulk, a witness on behalf of the plaintiflF, testified that the father and mother of the defendant above named, with one Hall, their son-in-law, and his wife, their daughter, moved into a house belonging to his, witness' wife, in the spring of 1875, and occupied it for several months, extending probably into the spring of 1876. The plaintiff then proposed to prove by the witness, that the defendant rented that house of him and paid him the entire rent for it during the time it was so occupied by the defen- dant's father and mother and Hall and wife, and that during the same time the defendant paid Hall and wife for taking care 280 ILLUSTRATIVE CASES of his said father and mother. The defendant objected to the introduction of the proposed proof, and his objection was sus- tained. It is insisted that the Court erred in excluding what was thus proposed to be proven ; but we are unable to see that there was any error in that respect. The facts proposed to-be shown did not in any manner tend to establish the express promise re- lied on by the plaintiff. At common law a son is under no legal obligation to support his parents, and we are not aware of the existence of any statute of this State changing that rule. A son may be charged for necessaries furnished to his parents at his request, but such request must be proven. It cannot be inferred from his natural duty to provide for his parents, or from any merely collateral fact : Lebanon v. Griffin, 45 N. II. 658 ; Stone v. Stone, 32 Conn. 142.. There was also evidence tending to show that the defendant had paid to the plaintiff similar bills for the years 1873 and 1874. In regard to these latter bills, the defendant stated, while testifying in his own behalf, that the firm of William E. Gibson & Co., of which he was a member, had paid them in the first instance, and charged them to his father, John H. Gibson, and then, over the objection of the plaintiff, he was per- mitted to state that he and two brothers reimbursed William E. Gibson & Co. for the amounts thus advanced by them in payment of those bills. It is further insisted that the Court erred in permitting the defendant to make this last statement concerning the reim- bursement of William E. Gibson & Co. But as these pay- ments were introduced in evidence as circumstances against the defendant, it was clearly competent for him to bring out all the facts connected with them for the information of the jury. It is a familiar rule of evidence that where one party calls out a part of a transaction, the other party is at liberty to bring out the rest of it, so that the jury may have the entire transaction before them ; and the application of that rule fully sustains the action of the Court, complained of as above. A question is also made upon the sufficiency of the evidence IN DOMESTIC RELATIONS. 281 to sustain the verdict ; but we are unable to see any reason for disturbing the verdict upon the evidence. The judgment is affirmed, with costs. Sch. s. 265 ; Edwards v. Davis, 16 Jolmson, 281 ; Stone v. Stone, 32 Coun. 143. (b) Their rights. Emancipation, oral or implied, gives the child all the right of an adult. Whiting v. Eaele. Supreme Judicial Court of Massachusetts, 1825. 3 Pick. 201. Parker, C. J., said, in substance, that although the general principle is clear, that a father is entitled to the earnings of a son while under age, yet the Court thought it equally clear that he might transfer to the son a right to receive them. This is necessary for the encouragement of young men ; and it is often convenient for a father wishing to be relieved from the burden of supporting his son, to allow him in this manner to support himself. Where such a contract is entered into with- out any fraud, for the advantage of the son, on the principles of common justice and according to decided cases he is entitled to the profits of his own labor. We go so far as to say, that where a minor son makes a contract for his services on his own account, and the father knows of it and makes no objec- tion, there is an implied assent that the son shall have his earnings. Trustee discharged, Soh. s. 267, 267a, 268 ; 2 Kent. Com. 194 ; Abbott v. Converse, 4 Allen, 630 ; Varney v. Young, 11 Vt. 258. 282 ILLUSTRATIVE CASES III. GUARDIAN" AED WARD. 1. Classification of guardians. Sch. s. 285-296 ; 2 Kent. 222-225. 2. Appointment of guardians. Guardians by nature and nurture act tinder authority of the law, and the modern tendency is to regard both husband and wife as guardians by nature. People v. Boice. Supreme Court of New York, 1862. 39 Barb. 307. This is a common law certiorari awarded by the Supreme Court, upon the application of Joseph Boice, for the purpose of reviewing the decision of Henry Brodhead, Jun., county Judge of Ulster County, transferring to Melissa Boice the ens- tody of her infant child. On the 22d day of January, 1862, the above-named Melissa Boice presented a petition to the said county Judge, alleging that her infant child, Charles Boice, who was between the ages of two and three years, was illegally restrained of his liberty by the relator, Joseph Boice. The petition alleged that the petitioner, whose maiden name was Margaret Fiero, was married during the year 1853, to one John H. Boice ; that the said John II. and the said Melissa cohab- ited as man and wife, and on the 27th day of May, 1859, Charles Boice (the child whose custody was sought to be ob- tained) was born ; that the said Charles was the legitimate son of the said Melissa and the said John 11. Boice ; that John H. IN DOMESTIC RELATIONS. 283 Boice departed this life on the 10th day of November, 1861, leaving him surviving his widow, the petitioner, and his said son Charles ; that the said Charles was illegally restrained of his liberty by Joseph Boiee, who claimed the right to his cus- tody, under and by virtue of the last will and testament of the said John H. Boice, deceased, who by such will had appointed him (Joseph) the guardian of such child. The Judge allowed the writ. The return of Joseph Boice to the writ admitted that the child was the legitimate son of Melissa Boice, the petitioner, and the said John H. Boice, deceased. It further alleged that the petitioner, Melissa, on or about the 17th day of February, 1860, had, without suflSoient cause, left the house of the said John H. Boice, deceased, leaving the child in the care of his father; that on or about the 1st day of March, 1860, the petitioner, Melissa, commenced an action in the Supreme Court against the said John H. Boice, deceased, for a separa- tion from bed and board, and for the custody of the child; that in the month of May, 1860, a motion was made by the said petitioner for alimony during the pendency of the suit, and for the custody of the child, which motion, so far as the custody of the child was concerned, was denied; that during the pen- dency of the suit John H. Boice died, having left a will, by which will, duly proved before the Surrogate of Ulster County, the relator, Joseph Boice, had been appointed the testamentary guardian of such child. The return then alleged that the peti- tioner, Melissa, was of feeble health, and unable to support the child, who was better cared and provided for by the relator than he could or would be by the petitioner, his mother ; that he believed the application was made by the mother for the custody of the child to obtain the $150 of personal property, which had been set apart by the appraisers , that the child was alienated in his affections from his mother, the petitioner, and was much attached to the relator, and those employed by him to take care of the child. Upon the return day of the writ, the petitioner demurred to the return of the relator, alleging as cause therefor that the return showed no legal cause for the detention of the infant. The Judge held the return to be sufficient, and overruled the demurrer. The matter was then adjourned to the 4th day of 284 ILLUSTRATIVE CASES February, 1862, when the parties again appeared with their counsel, and testimony was given on both sides. On the part of the relator it tended in some degree to show that the temper and disposition of the mother were somewhat bad and rough, and that she did not treat the child with much affection ; that she left and abandoned her husband, and that the child was well cared for by the relator and was improving in health and appearance. The testimony on the part of the mother tended to show that her temper was not bad ; that her habits were industrious, and her treatment of the child affectionate and kind ; that she was living with her father, who was willing and competent to take care of her and the child ; that the relator was a single man, of little property, who was obliged to rely more or less upon a female attendant to take care of the child. The county Judge, after hearing the case, decided that the infant was illegally restrained by the relator, and directed the latter forthwith to discharge the infant from his custody and to deliver him to his mother, Melissa Boice. The relator there- upon sued out a certiorari to review the proceedings and reverse the order of the county Judge. Peter Cantine, for the relator. T. R. Westbrook, for the defendant. HonsEBOOM, J. At the time these proceedings were had before the county Judge of Ulster County, the law of 1860 (chap. 90) was in force, the 9th section of which declares 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." This was a valid Act of general legislation, not interfering with vested rights, and materially curtailed the right of the father and enlarged that of the mother in regard to the guardianship and custodj^ of infants. It placed the father and the ■ mother upon strict legal equality, and it does not in terms, nor in my opinion in legal effect, limit the guar- dianship of the wife to the period of coverture. The law must be liberally construed to effectuate its obvious intent, which was to enlarge 'the sphere of maternal authority. I am of IN; DOMESTIC RELATIONS. 285 opinion, therefore, that the power would survive to the wife in case she survived her husband. If so, it would seem to be in- consistent (in case of the survivorship of the wife) with those provisions of the Revised Statutes (2. E. S. 150) which confer upon the father the power of appointing a. testamentary guar- dian, and, as a later expression of the legislative will, must be deemed pro tanto to repeal those provisions. Hence the power attempted to be exercised in this instance by the father was iueiFectual, and the testamentary guardian had no rightj as against the surviving wife, to the custody or guardianship of the infant. The mother was entitled to its custody and con- trol, and to the aid of the writ of habeas corpus to free it from the illegal restraint of the pretended testamentary guardian, which illegal restraint in the case of an infant of such tender years as to be incapable of a voluntary selection of its protector, is not effectually removed until it is restored to the custody of its lawful guardian and surviving parent: Mercein v. People, 25 Wend. 73 ; People v. Chegaray, 18 Id. 637 ; People v. , 19 Id. 16 ; People v. Porter, 1 Duer, 709, 724 ; People v. Cooper, 8 How. Pr. Rep. 288, 296. The order of the county Judge was therefore proper at the time it was made. But by the law of 1862 (chap. 172, § 2), the 9th section of the Act of 1860, before quoted, is repealed, and it might become necessary to determine the effect of this repeal upon the order aforesaid, and the question whether it did not revive the pro- visions of the Revised Statutes, were it not for the 6th section -of the Act of 1862, which is as follows : " No man shall bind his child to apprenticeship or service, or part with the control of such child, or create any testamentary guardian therefor, unless the mother,' if living, shall in writing signify her assent there- to." The terms of this Act are too clear to admit' of the sup- position that the Legislature designed to restore the power of appointing a testamentary guardian to the father, or to infringe materially upon the mother's right to the custody of her child of such tender years. On the merits of the case as to the question whether the mother or the uncle of the infant is the mere suitable person to ■ be , entrusted with such a charge, if that question is a proper 286 ILLUSTRATIVE CASES one for discussion on this application, I am of opinion that the testimony is by no means decisive, nor of such a character as to require us to deprive the mother of the custody of her child on any such ground. I am of opinion that the proceedings before the county Judge should be affirmed. Judgment accordingly. Sch. 247, 248, 285, 289. Testamentary guardianship is the only instance of authority derived simply from parental appointment, and testamentary guardianship can exist in the United States only under local statutes prescribing the form and authentication of the will. WADSWOETn V. CONNELL. Supreme Court of Illinois, 1882. 104 111. 369. Walker, J. It is conceded that Joseph 0. Connell died in the year 1867. He made and published his will, which was probated. By it he made some specific devises. He also be- queathed to his wife one-third of the remainder of his estate for life, and the remaining two-thirds he divided equally be- tween his three children. His estate consisted principally of real estate, and he required his executor to sell it at such time, and on such terms, as might be advantageous, and to invest one-third of the proceeds for the benefit of his widow during her natural life, " with as little delay as possible, on safe securi- ties.' Wadsworth, the executor, is named in the will as guar- dian for his children, and to him is committed their care, tui- tion, and the management of their property, and to provide for their, education, and moral and religious training, and by his personal and judicious investments, and the care of their expenses, to improve their estates. "Wadsworth qualified as IN DOMESTIC RELATIOKS. 287 executor, but not as guardian. He took charge of, and sold, the property, and made reports annually to the Probate Court ; kept the money invested at the highest legal rate of interest, none being lost but two loans, of $500 each, one to the Seiberts and the other to the Dunlaps. In his report to the Court these loans were included, and the reports were approved. Wadsworth, on the 23d of October, 1880, filed a report and asked a final settlement, and to be discharged as executor, and to be relieved from further executing the trust. In this report he credited himself with commissions on the amount to be paid over to his successor, and some other commissions on former disbursements. To this report appellees filed ob- jections to the allowance of the commissions, and to allowing him a credit for the amount lost on the loans to the Seiberts and the Dunlaps. A hearing was had on these objections on the 19th day of February, 1881. The Court sustained the objection to allowing the commissions, in part, and reserved a decision on the other objections until the amount due the widow should be ascertained. No appeal from this order was ever perfected. On the 22d of the same month, appel- lant having filed an amended report, as was required by the order of the 19th, a hearing was had. To this amended report no objections were filed, and it was approved. An appeal was perfected to the Morgan Circuit Court by appel- lees. On a trial in that Court, it was found that two-thirds of the money loaned by appellant to the Dunlaps and to the Seiberts was held by him as testamentary guardian of Eva, Joseph B., and Charles II. Council, and was their money, with which he should be charged, and which was found to amount to $933.33, The Court also found there was in his hands $731.67, due to the widow, and to Charles H. Connell $3617.78. The Court ordered him to pay the widow the sum found due her, and that he pay Charles II. $3509.25, and retain out of these sums, for his own use, $108.53, as commissions, and that he turn over to his successor the balance of the assets in his hands, including the money loaned to the Dunlaps and the Seiberts, amounting to $1257.44. From this order the execu- tor appealed to the Appellate Court. On a trial in that Court 288 ILLUSTRATIVE CASES the judgment of the Circuit Court was affirmed, and he ap- peals to this Court. It is urged that the order of the 19th of Fehruary, 1881, involving the same matters presented in this case, precludes any further litigation of the same matters, as that order was not appealed from, and remains in full force ; or, if that is not conclusive as res judicata, that the order is erroneous in holding that appellant was testamentary guardian, and holding him liable as such, and in also holding him liable for the loss of the money loaned to the Duulaps and the Seiberts. We are at a loss to perceive how it can be held that the order of the county Court of the 19th of February is res judicata as to this claim. There is no pretence that it was passed upon or decided at that time. On the contrary, it was expressly held up, and a decision withheld, until further evidence was heard and additional facts were ascertained. It is believed that no case has ever gone the length of holding anything res judicata short of a judgment on the facts in controversy. If such a decision could be found, it would be violative of plain legal principles, and would not be authoritative. There was no decision rendered on the question of the lia- bility of appellant, by the order of the 19th of February, and there is, therefore, no bar to this judgment or order of the Circuit Court. But was appellant a testamentary guardian ? He was so named by the will, but he never qualified by giving bond or receiving letters of guardianship. The fifth section of the chapter entitled " Guardian and Ward," authorizes the parent to appoint a testamentary guardian for the custody and tuition of his unmarried minor child. The sixth section of the Act provides that the custody and tuition of the minor may be given to one, and the custody and control of his property to another guardian. The eighth section confers on a testa- mentary guardian the same powers, within the scope of his appointment, as a guardian appointed by the County Court. The ninth section provides that a testamentary guardian, except for the custody and tuition of the minor, shall, before he can act, be commissioned by the county Court of the proper county, and give the bond prescribed in section 7 of IN DOMESTIC RELATIONS. 289 this Act, unless otherwise requested by the testator in his will, when none shall be required, unless the guardian's circum- stances have changed, or for other sufficient reasons a bond may be required. It seems that counsel in the case were not aware of these provisions, or decisions of this Court bearing on this question, as they are not referred to in their briefs. When considered together, the fifth and ninth sections authorize the appointment of a testamentary guardian for the custody and tuition of the minor, and the custody of his property, or to give the custody and tuition to one, and the custody of the property to another. The guardian of the property is ex- pressly required, unless otherwise provided by the will, to give bond, as in other cases, and to receive a commission to act. The will in this case does not dispense with a bond, and none being given, and no commission being issued, appellant never became the guardian of the minors. It is but as if the county Court should designate of record the appointment of a person as a guardian, and he were never to give bond or receive letters of guardianship. He could not, by such an order, become a legal guardian, because the statute has made a bond indispen- able. So of the appointment by will. In what capacity, then, does appellant hold this property ? He was appointed, and qualified, as executor. Pie entered upon the discharge of the duties of the trust, and in pursuance of the powers conferred by the will he sold the property and con- verted it into money. This he did as executor. There can be no reasonable claim that this was done as guardian, as the power is given in connection with his appointment as executor, and no such power is conferred on him as guardian. It was as executor, and not as guardian that he received the money, and he so holds it, as it was never paid over to a guardian, and he never became such. The statute has not conferred on execu- tors or administrators power to loan the funds of the estate, nor was there any such power conferred by this will. It then follows that appellant made these loans without legal au- thority, and of his own wrong. This being the case, what are his liabilities ? Having wrongfully retained the money, and failing to pay it over to those entitled to it, as required by the statute, he has clearly rendered himself liable for the amount 19 290 ILLUSTRATIVE CASES thus received, with interest, less any sum or sums paid out under the order or by the approval of the county Court. IN'or can he be heard to say, as a defence, that he, of his own wrong, and without legal authority, loaned the money, and it was thereby lost. Ho loaned it at his peril. ITor had the county Court any power whatever to render an illegal act valid and binding. That was without jurisdiction, and void, as the widow and heirs were not in Court when the report was approved. Appellant is therefore liable to account for these loans to the Dunlaps and the Seiberts for the full amount. In the cases of Gilbert v. Guptill, 34 111. 112, and Mclntyre V. The People, 103 Id. 142, we held that a guardian failing to conform his acts to the statute, and loaning money contrary to the requirements of the statute, does so at his own risk, and in case of loss he is liable to make it good ; and the same princi- ple applies to all persons entrusted by the statute with the custody of the money of others. Their safety consists in an adherence to legal requirements. In the case of Davis v. Hark- ness, 1 Gilm. 173, it was held that where a stepfather received the money of his minor stepchildren, by reason of his marriage with their mother, who held their money as administratrix of their deceased father, and he appropriated it to his own use, and claimed it as his own, in equity he would be held and re- quired to account for it, as their guardian, and would be held to the duties imposed on guardians appointed by law for the custody of the property of minors. Under this decision, appellant may be held in equity as a guardian, and under Gilbert v. Guptill, supra, he rendered himself liable by failing to loan on the security required by the statute. Tbe 22d section of the Guardian's Act requires the guardian to keep the ward's money loaned at interest, upon security to be approved by the Court. It allows suras of less than $100 to be loaned on personal security, but loans in large amounts shall be on real estate security. If, then, as he may be, appellant be held as a guardian, he did not loan this money on real estate security, as the statute requires, and he is therefore liable for its loss. Then, whether applicant held the money as executor or guardian, he is liable to make good IN DOMESTIC RELATIONS. 291 the loss. The law does not authorize an executor or admin- istrator to loan the trust fund in his hands. The will in this case authorized him to loan the money as guardian, but not as executor, and, as we have seen, he never became the guardian of the minors, by giving bond as guardian, by the law. But under the above authorities he may be held to account as guardian, if he so acted in making the loans ; or if he acted as executor it was without authority, and he is liable. If it be said that it is only in equity that appellant can be treated as a guardian, and this was simply a settlement before the Court of his accounts as executor, it may be answered that it has been repeatedly held the Probate Court may exer- cise equitable jurisdiction in the settlement of estates — not its full jurisdiction, but such as is adapted to its organization and the mode of proceeding in that tribunal : Moore v. Rogers, 19 111. 347 ; Hurd v. Slaten, 43 Id. 348 ; Dixon v. Buell, 21 Id. 203 ; and Moline Water Power, etc. v. Webster, 26 Id. 233. The county Court is as competent to afford the relief in this case as a Court of Equity, and it pertains to the settle- ment of the estate. It therefore follows, that on this ground the county Court or the Circuit Court on appeal had full power to apply the equitable relief, and hold appellant liable for th^s loss. On either of these grounds appellant was liable, and the judgment of the Appellate Court must be affirmed. Judgment affirmed. Sch. s. 287, 290, 299 ; Be Taylor, 3 Eedf. N. Y. 259 ; Probate Code, 1889, s. 139. 292 ILLUSTRATIVE CASES Guardianship arising by appointment of the infant does not exist to-day, but statutes give them the right to nominate their guardian upon attaining the age of fourteen. Adams's Appeal. Supreme Court of Connecticut, 1871. 38 Conn. 304. Pakk, J. The principal question made in one of these cases is whether the refusal of a Judge of Probate to approve of the choice of a person to be guardian, made hy a minor of su£Bcient age to make such choice, is the subject of review bj the Supe- rior Court on an appeal taken from such refusal. The appellee claims that under section 66, page 312, of the General Statutes a Judge of Probate has the power to approve or disapprove of the choice made by such minor, at his discre- tion, whether such choice is a proper one for approval or not in the judgment of the Judge; and the only remedy that the minor has, should the Judge disapprove, consists in making another choice of some person to be guardian. We think this construction of the statute is incorrect. Minors having no father or master have ever been regarded by the law with the greatest solicitude. It has sought to make up the loss of a father to them, so far as it can be done, by the relation of guardian and ward, which comes as near that of father and child as human wisdom can devise. Indeed, the law places the guardian in loco parentis, and means that he shall Ibster the ward with parental anxiety. But guardians must be ap- pointed. Some persons would carry out the object of the law, and some would not. How shall the selection be made ? The common law gave the selection to the minor, when of suf- ficient age to act with discretion in the matter. But experi- ence proved that minors, although of proper age to choose their guardians, sometimes were governed too much by their feelings, and improper selections were made. The statute in IN DOMESTIC RELATIONS. 293 question sought to improve upon the common law. It is equally desirous to leave the selection to the minor, when of sufficient age to exercise judgment and discretion, so far as it can safely be done for the good of the minor, and devised the mode therein prescribed to make the appointment. The se- lection shall first be made by the minor; then, if in the judg- ment of the Judge of Probate the party selected is not a proper person to be guardian, the Judge may require that another selection be made. But if the Judge of Probate has the power to disapprove of the selection made by the minor whenever the Judge sees fit so to do, whether the selection is a proper one to be made or not, the minor, in effect, has no agency in the matter, and the appointment might as well be left to the Judge in the first instance, as to go through with the farce of one selection after another, till the will of the Judge of Probate shall finally be accomplished by the selection of the pereon that the Judge had in view at the commence- ment. The appellee claims that the expression in the statute, " but if he (the Judge of Probate) disapprove of such person so chosen, then the minor may choose some other proper per- son," shows that the first person selected was a proper one to be appointed, and so he infers that the statute recognizes the right of the Judge to disapprove of a person, although a proper one in the judgment of the Judge. We think this expression means the opposite of that claimed. The minor ma^' choose some other proper person ; that is, some otiier person who shall be proper to be appointed. The statute assumes that if the Judge shall disapprove of the selection made, it will be on the ground that the choice was not a proper one, and so the minor may choose some other proper person. The claim contended for makes absurdity of the statute. If the first choice was a proper one, why make another ? Surely a sec- ond choice can be no better than the first one. Can any reason be given for the claim other than the gratification of the caprice of the Judge of Probate, which we are slow to be- lieve the statute intends? We have no doubt that the statute means, if a minor of lawful age shall make a proper selection of a person to be his or her guardian in the judgment of the Judge of Probate, the Judge has no discretion in the matter, 294 ILLUSTRATIVE CASES but the duty of the Judge is to approve of the choice made, and make the appointment accordingly. It follows, therefore, that the judgment of a Judge of Probate, in disapproving of the choice made by a minor under this statute, must be based upon facts shown, or facts within the knowledge of the Judge; and it is the subject of review by the Superior Court on ap- peal taken from such judgment, like all other decisions of the Court of Probate, where it is not otherwise specifically pro- vided by law. "VVe think the case comes within section 88, page 231, of the statutes in relation to appeals from the decisions of the Court of Probate to the Superior Court. The conclusion to which we have come in this case renders it unnecessary to consider the appeal taken from the judg- ment of the Court of Probate in appointing Willis Dewey to be the guardian of the appellant ; for if the Judge of Probate erred in refusing to approve of the choice of a guardian made by the appellant, the Court of Probate manifestly erred in ap- pointing at the same time another person to be such guardian, contrary to the remonstrances of the appellant. We think the matter of costs in both of these cases was a matter discretionary with the Superior Court, and is not the subject of review by this Court: Canfield v. Bostwick, 22 Conn. 270. There is no error in the judgment complained of in the case we have first considered, and no cause for a new trial in the other case. In this opinion the other Judges concurred. Sch. s. 301 ; Dibble v. Dibble, 8 Ind. 307 ; Pitts v. Cherry, 14 Ga. 594 ; Sessions v. Kell, 30 Miss. 458 ; Minn. Pro. Code, 1889, s. 128, 129. IN DOMESTIC RELATIONS. 295 3. Termination of the guardian's authority. Guardianship lasts until the termination of the period for which it was instituted, unless it be terminated by the death or marriage of the ward, the death, marriage, resignation, or removal of the guardian. Tate v. Stevenson. Supreme Court of Michigan, 1884. 55 Mich. 320. Campbell, J. This was a suit against the sole surviving surety on a guardian's bond, the guardian being dead. The guardian, John Fleming, was appointed March 11, 1867, over five children ; and James W. Fleming, for whose benefit this suit is brought, became of full age on September 21, 1878. Frederick Hall was defendant's co-surety. On January 12, 1880, the guardian was cited to account, and on February 12, 1880, a balance was found due of $853.68. It is found that the guardian, through Hall, made payments in October and December, 1878, and in August, 1879. The order to sue on the bond was made June 29, 1880, and the suit was brought March 29, 1883. Hall and Fleming have died since that time. The only question raised is whether the action against the surety is barred by limitation. The Court below held it was not, and gave judgment against him, from which he has brought error. The statute governing the proceeding is Comp. L. § 4840 (How. Stat. § 6332), which bars actions against sureties unless brought " within four years from the time when the guardian shall have been discharged," with a saving clause in favor of persons absent from the State at the time of discharge, and of persons under disability to sue. It was suggested on the argument that as the decedent was guardian of several minors, some of whom have not become of age, the statute cannot run during their nonage. It was also 296 ILLUSTRATIVE CASES suggested that the payments in 1878 and 1879 would take the case out of the statute. There is no foundation for the claim that guardianship can be treated as exercised over minors jointly. While the same person may be guardian over several children, yet his duties are several and not joint. JSTo authority is found for any joint relation, and our statutes do not contemplate it. Assuming, which we need not now consider, that a part pay- ment or new promise would have taken this case out of the statute, it is sufficient to say that under our statutes a paj'ment or a new promise by one joint debtor will not operate to keep the obligation alive as to another who was not privy to it or in any way participating in it : Rogers v. Anderson, 40 Mich. 290 ; Mainzinger v. Mohr, 41 Id. 685. The question then arises, what is meant by the discharge of a guardian ? It is claimed by the defence that it means the ter- mination of his official character. For the plaintiff it is claimed that it means his discharge by final settlement. The only sections of the statutes bearing on this question, which have been called to our attention, are Comp. L. §§ 4816 and 4836 (How. Stat. 6308 and 6328). The former provides that every guardian shall have the care and management of the estate and continue in office until the minor reaches majority, " or until the guardian shall be discharged according to law." The latter section provides for the resignation and removal of guardians, which can only be done during the minority of the ward, and while there is, therefore, a disabilityto sue. It has been the uniform understanding that the office itself terminates in all cases when the ward comes of age or ceases to be incompetent, and that after that time the ward may settle with his guardian without the intervention of the Probate Court if he chooses, and the guardian can do no further act as guardian, but becomes discharged of his office: Cheever V. Congdon, 34 Mich. 297 ; Lyster's Appeal, 64 Id. 325. There is, therefore, no hindrance in the way of seeking- an ac- counting, and a guardian is bound to be ready to account as soon as his trust comes to an end. The remedy to compel ac- counting is summary, and it cannot generally consume much IN DOMESTIC RELATIONS. 297 time. And inasmuch as a failure to account is as much a breach of duty as a failure to pay over money, the cases cannot be very numerous in which a recourse to the bond cannot be had within the statutory period.' The discharge cannot very well have more tlian one or two meanings. It must, mean either the end of the guardianship office, or the discharge from liability. It cannot mean the latter, because that would preclude any occasion for resort to the bond. The object of the statute was, evidently, to make a uniform rule of limitation ; and it is long enough to prevent injustice in most cases, if not universally. This construction has been adopted in Massachusetts under the same statutory provision which seems to have given the pattern of our own law : Loring, Judge of Probate v. AUine, 9 Cush. 68. In our opinion it is the purpose of this statute to require suit to be brought against the sureties within four years after the guardian ceases to be guardian from any cause (saving personal disabilities to sue), and not four years from any other period or transaction. The defendant is entitled to a reversal, and to judgment in his favor on the finding, with costs of both Courts. CooLET, C. J., and Sherwood, J., concurred. Champlin,J., did not sit. Sch. s. 311-316 ; 2 Kent, 221, 227 ; Stroup v. State, 70 Ind. 495 ; 1 Bl. Com. 462 ; Byroe v. Van Hoesen, 5 Johns. 66 ; Minn. Probate Code, 1889, 135, 298 ILLUSTRATIVE CASES Whenever the guardian abused his trust, or the ward's interests required it, the Chancery Court could remove the guardian, whether appointed by itself, by probate tribunals, by testament, or by legislative enact- ment. He Clements' Appeal. Prerogative Court, New Jersey, 1874. 25 N. J. Eq. 508. The Ordinary. This is an appeal from a decree of the Orphans' Court of the county of Bergen, made on the 28th of June, 1873, revoking letters of guardianship of the persons and estate of the children of John P. Costello, deceased, issued to the appellant by the Surrogate of that county, on the 6th of December, 1872. These letters were issued on a written re- quest, signed by the mother of the children, dated July 23, 1872, and addressed to the Court. She thereby renounced her right to the guardianship of her minor children, David, Chris- topher, Mary, Elizabeth, John, and Thomas Patrick, and re- quested that the appellant be appointed guardian. The appli- cation for the letters was made on the day on which they were issued. The children were aged, respectively, fifteen, thirteen, eleven, nine, seven, and about two years. On the 25th of Jan- uary, 1873, Mrs. Costello filed her petition in the Orphans' Court, alleging that on the 4th of December, 1872, certain persons conspired against her to obtain possession of her chil- dren, and to that end caused her arrest and imprisonment in the county jail of Bergen County, and that on her release and return home (she resided at Englewood, in that county) she found that her children were scattered, and, as she alleged, she was unable to ascertain the whereabouts of the three youngest, although she made diligent search and inquiry for them ; that she had been informed and believed that the children had been taken from their home on the day after ber arrest and impris- IN DOMESTIC RELATIONS. 299 onment ; that she was informed that on the 6th of Decenaber, and while she was confined in jail, letters of guardianship of the children had been issued to the appellant ; that she was entirely ignorant of the making of the appointment or of the proceeding in which it was made ; that she did not knowingly sign any such paper as that above mentioned ; that if her sig- nature had been obtained to it, it was by misrepresentation of its contents ; that she never heard the name of the appellant mentioned or proposed as the guardian of her children by any one ; and that she would never knowingly have given her con- sent to the appointment of the appellant or any one else to the guardianship. The petition prayed that the letters granted to the appellant might be revoked. The Court, on the filing of the petition, made an order that the appellant show cause, on the 17th of Februarj', 1872, why the letters should not be re- voked. The order was served on him on the day on which it was made. Under this order, testimony has taken by the par- ties, and on the 28th of June, 1873, by the decree above men- tioned, the Court revoked the letters. From this decree the appeal under consideration was taken. The appellant insists that the Orphans' Court had no power to make the decree appealed from ; that that Court has no power to revoke letters of guardianship for any cause not specified by statute, and that it has no inherent power to right a wrong done in the appointment of a guardian, even though the appointment was procured by fraud. So broad a proposition cannot be maintained. The Act " respecting the Orphans' Court and the power and authority of Surrogates" (N'lK. Dig. 640), gives to the Court full power and authority, among other things, to hear and determine all disputes and controversies whatever respecting the right of guardianship. It empowers the Court to appoint guardians, and to revoke their letters for causes specified in the Act. Fraud in the ap- pointment is not one of those causes. But the Court is not entirely confined to the powers specially granted by the Legis- lature ; and to a limited extent such tribunals are in the habit of exercising incidental powers, which it is obviously necessary they should possess in order to prevent a failure of justice in conseq^uence of mistakes and accidents, against which human 300 ILLUSTRATIVE CASES foresight is not able to guard, and the more especially to guard against the consequences of frauds perpetrated on the Court itself. Such power the ecclesiastical Courts in England have constantly exercised. In Carolus v. Lj'iich, 1 Lee's Ecc. Rep. 13, administration which had been granted to one who falsely pretended to be a creditor of the intestate was revoked. In Cornish v. Cornish, Id. 14, administration which had been granted to an illegitimate son on a false affidavit was revoked. In Burgis v. Burgis, Id. 121, au administration granted to a brother of an intestate was, on the interest of a minor son being established, revoked, and decreed to the guardian for the use of the minor. In Ogilvie v. Hamilton, Id. 357, a fraud- ulent administration was revoked, and in Smith v. Corry, Id. 418, administration granted on false suggestion was revoked. See also Harrison v. Welden, 2 Str. 911. Such power has been held to exist in the Surrogates in the State of New York, on the ground that it is absolutely essential to the administration of justice: Pew r. Hastings, 1 Barb. Ch. R. 452 ; Vredenburgh V. Calf, 9 Paige, 128 ; Proctor w. Wannninker, 1 Barb. Ch. R. 302 ; Skidmore v. Davies, 10 Paige, 3.6 ; Campbell v. Thatcher, 54 Barb. 382. In Carow v. Mowatt, 2 Edw. Ch. 57, it was held that if, through mistake or inadvertence, administration was committed to an infant, the Surrogate should revoke the ap- pointment. In this Court, in the matter of the will of Isaac Lawrence, 3 Ilalst. Ch. R. 215, the Ordinary vacated the pro- bate of a foreign will as having been improvidently granted. In the present case, the Court having afforded the appellant an opportunity to be heard, of which he availed himself, and having found that the letters were issued upon a false repre- sentation, revoked them. I think they had a right to do so under the circumstances. It remains to consider whether their action was justifiable. From a perusal of the testimony in this case, it is impossible to resist the conclusion that the document on which the ap- pointment was made was signed by Mrs. Costello without a knowledge of its full import. She evidently supposed that it was merely intended' to give to the person to be appointed the charge of the pecuniary interests of her children, and not to deprive her of the custody of their persons. And there is IN DOMESTIC RELATIONS. 301 abundant evidence that it was well understood by those who procured her signature to the paper that such was her under- standing of it. One of them, who appears to have been the principal actor in the business, says that after she had been arrested he spoke to the appellant of the necessity of getting out the letters, in order to place the children in the institution in which they proposed to put them ; that no opportunity had occurred between the date of the instrument, July 23d and the 6th of December, to take away the children, as they feared the results on account of the scandal which might arise from it to the mother ; that they wished to do it as peaceably as possible ; and he adds that he does not believe that they could, at any time during that interval, have obtained possession of the chil- dren without a breach of the peace ; that they would have had to take them away against her will, and certainly could not have done it without a breach of the peace ; and that they thought it an excellent opportunity while she was in jail to get them. The institutions above alluded to were two orphan asylums, one in Newark, and another in Paterson, and a found- ling hospital in the city of New York. Two of the youngest of the children were placed in the orphan asylums, and the youngest, a nursing child, in the foundling hospital. The charge on which Mrs. Costello was committed to jail was dis- orderly conduct. She was committed by the person, a justice of the peace, who obtained her signature to the request on which the appointment was made. He alleges that he read the jjaper to her when she signed it, and that he believes she understood it. He did not explain it to her, however. The value of his testimony on this score is diminished by the fact that he professes ignorance as to the origin of the paper ; says he does not know from whom he received it, with instructions to get it signed, nor who got it from him afterwards ; nor can he say in whose handwriting it is. In short, he professes an ignorance in regard to the instrument, which is all the more incredible from the circumstances that the person by whom it was written testifies that he wrote it at the request of the jus- tice himself, and Mrs. Costello swears that when he came to get her signature he told her that that person had requested him to get it. It is not necessary to impugn the motives of 302 ILLUSTRATIVE CASES the actors in this matter. Their method, however, is open to reprehension. However disinterested their motives, and how- ever benevolent their intentions, the representation made to the Court by means of the instrument to which they had ob- tained Mrs. Costello's signature was a fraud on the Court in the premises. She had not knowingly requested the Court to ap- point the appellant guardian of the persons of her children, and it is impossible to doubt that the actors in this matter well knew it. That she would resist the appointment of a guardian which could by any means result in depriving her of the cus- tody of her children, especially of her nursing child, was not to be doubted. The use of this instrument, then, for the purpose of procuring the appointment of a stranger as the guardian of the persons of her children, as a means of depriving her of them, however benevolent the end designed to be accomplished, was a misrepresentation. Its effect would be to prevent the Court from looking into the matter and exercising their discretion on the subject. They would naturally, at the request of the mother, readily appoint a guardian named by her, while under other circumstances they would at least have listened to her remon- strance, and advisedly have taken such action in the premises as seemed most judicious. I see no reason for reversing the decree. It will be affirmed. Harrison v. "Weldon, 2 Str. 911 ; Pew v. Hastings, 1 Barb. Ch. K. 452 ; Skidmore v. Davis, 10 Paige, c. 316 ; Campbell v. Thatcher, 54 Barb. 382 ; Probate Code Minn. 1889, s. 294, 295. IN DOMESTIC KELATIONS. 303 4. Nature of the guardian's office. For all practical purposes the guardian's office may be said to be of the nature of a trusteeship, for he holds the legal title for the benefit of another. LOVELL V. BrIGGS. Supreme Court of ISTew Hampshire, 1820. 2 N. H. 218. Woodbury, J. The objection, which grows out of the join- der of the co-administrator in this case, is now waived by the defendant, Briggs; and, consequently, we shall offer no opinion upon the principles and authorities that would govern it : 4 John. 26 ; 11 Id. 16 ; 1 Salk. 318 ; 7 East. 246 ; Cr. Eliz. 318. The next objection relates to the validity of the purchase of intestate property by the administrator of it. On the part of the plaintiff it is contended that every such purchase is per se void. But this position is by no means ten- able in a Court of Law ; and, in our opinion, is somewhat broader than what would be sanctioned even in Chancery. That Court possesses a peculiar guardianship over minors, wards, etc. ; and from the relationship which exists between an administrator and the heirs will keep a most watchful eye upon his conduct. It justly considers this relationship as a ground of trust and confidence, that this confidence requires in return the best of faith, indefatigable diligence, and an entire devotion to the interests of the heirs. The heirs are, in gen- eral, helpless females or minors ; and when a suspicion arises that this trust has been neglected or betrayed a scrutiny be- comes proper. Upon this scrutiny, if an injury appears to have been sustained by the heirs, in consequence of purchases by the administrator of intestate property. Chancery considers the transaction a constructive fraud upon the heirs, and under that view of it is at liberty to pronounce the purchase void. We believe this to be the extent of the doctrine ; and under our 304 ILLtlSTRATIVK CASES system of jurisprudence it is important to mark well the dis- tinction that exists between the two classes of cases, where the doctrine is applied. The first class consists of purchases by administrators of the estate of their intestates, when sold by the administrators them- selves under license. In such a case, the heirs are altogether passive ; the admin- istrator alone acts, he is in fact the vendor, the agent, and the judge, to determine the time, place, and terms most advantage- ous to those interested : 2 Madox, 89. In such case, therefore, the law considers it suspicious in a high degree for him to be- come a purchaser. Because it is so difficult for any man at the same time to serve with honesty two different masters — himself and the heirs; or to act in the same case as both judge and party — a judge as to their benefit and a party for his own ; or to be, in the saime transaction, an agent on the one hand and a principal on the other; or, in other words, to purchase of him- self Ijy being both vendor and vendee : 3 Binney, 54 ; 4 Id. 43 ; 2 John. Chancery, 260, Davane v. Fanning. The second class of cases is where the administrator purchases directly of the heirs to the intestate, when they are adult, and themselves execute the conveyance. Many of the reasons before stated are here inapplicable ; but still his situation is open to suspicion, on account of the confi- dence yet felt in him by the heirs, as the representative of their deceased benefactor, and the dispenser of his bounty, and on account of his superior information upon the condition and value of the estate. Moreover, in this class of cases, the heirs, though competent in law to execute a conveyance, are often in needy circumstances, have heedless habits, or have recently been either femes covert or minors, and consequently are unac- quainted with the nature of such trades and with the value of such property. But, under the circumstances of both these classes of cases, it must be obvious that administrators may sometimes, in fact, make purchase with pure intentions and with no actual injury to the heirs. From their superior knowledge of the estate, they sometimes may pay more for it than strangers would ; and to consider all their purchases as absolutely void would IN DOMESTIC RELATIONS. 305 occasionally injure rather than benefit the heirs. To hold them only voidable prevents every inconvenience and achieves every advantage ; and hence the rule in chancery is, that these pur- chases are never per se void, but merely voidable at the election of the heirs, provided, on inquiry, a greater price can be ob- tained for the estate : 1 Madox, 94 ; 10 Vez. In. 393 ; 3 Id. 750; 13 Id. 51, 601 ; 9 Id. 234 ; 1 Scho. & Lef. 126 ; 1 Cruise, 534 ; 13 John. 320 ; 5 Id. 42. But, in Courts of common law, such purchases, unless tainted with actual fraud, are neither void nor voidable. " Courts of law take notice of actual fraud, but these technical or construc- tive frauds are of equity cognizance:" 14 John. 412, 501, 513, Jackson v. Walsh ; 10 John. 462 ; 4 Hen. & Mum. 430 ; 2 Dess. 636 ; Just. Inst. 643, note. In a State like ours, where no Court of Chancery exists, this circumstance may seem to appear a misfortune. But on exam- ination it will be found that, under even our present system, the heirs can seldom suffer. In the first class of purchases made by the administrator under a license obtained by himself, he is bound, both by his administration bond and by the bond given when he obtains the license, to sell the estate to the best advantage, and faith- fully to account for all the proceeds : 1- 1:^ . H. Laws, 216-7. Should he be guilty of any mismanagement whatever in the sale, and become himself a purchaser at a low price, he would doubtless be liable on either of the bonds, and in some eases, also, on a return of his administration account : 14 John. 409 ; 9 Mass. Rep. 76 ; Currier v. Whittier, post Again, in such cases, if there be actual fraud, the purchase may be altogether avoided ; and on that ground alone are the decisions in Pennsylvania bottomed on any established princi- ples: 3 Binney, 54; 4 Id. 43. In the second class of purchases, as the confidential relation between the administrator and the heirs is dissolved ; as each party conducts sui Jvris, without any agency or trust from the other (Sugden's Law of Vendors, 400), there is no remedy for an inadequacy in the price, unless the heirs as minors,/emes covert, or lunatics, were incapacitated, to sell ; or, being of full capacity, were overreached by actual fraud. 20 306 ILLUSTRATIVE CASES But in such case, no evil of much consequence can escape re- dress, if the jury are directed, as they were in the present action, that any unfairness of representation and deportment on the part of the administrator, combined with much inadequacy of consideration, would furnish good grounds for a presumption of actual fraud. And that the suspicions of it would be still more violent if the heir had recently arrived at age, was em- barrassed, extravagant, ignorant, friendless, or a female, and if either concealment or haste characterized the negotiation. This question of actual fraud, as that offence is " compounded of facts and intents," was a question for the jury under the di- rection of the Court : 1 IST. H. Rep., State v. Little ; Haven v. Low, ante. And, upon full consideration, we are satisfied with all those directions and opinions given in the progress of the trial, except the rejection of the testimony as to the defendant's conduct, after the purchase, in respect to the interest of the plaintiff and of the other heirs in the property of the intestate. That testimony was offered general]}' to prove fraud in this purchase, and was rejected under an impression that anything, after the purchase, could not reasonably be supposed to have operated on the plaintiff to enter into the purchase itself. But, in another view of the testimony, we now think it rele- vant. It was one important step in the case to prove a fraudu- lent intent in the defendant ; and we can readily see that his subsequent conduct concerning the whole estate might throw much light upon the intent, which probably actuated him in becoming interested in any part of it. It may be proper, too, that the inquiry should take a broader range than his conduct, afterwards, concerning this particular purchase and this particular heir ; because, as contended for by the plaintiff, the whole intestate estate was probably managed with similar views ; and the disposition of the whole would be likely, in some degree, to be made subservient or conformable to his views and interest in a part. Thus, it is established practice to admit evidence concerning different sales of a debtor's estate, made at or about the same time, to show a fraudulent intent in the debtor to injure his creditors : Thrasher v. Haines, Rock. Feb. 1822. So where the charge was the procurement of goods by a fraudulent conspir- IN DOMESTIC RELATIONS. 307 acy, testimony was admitted of other transactions of the sup- posed conspirators, soon after, to prove a probable intent and combination to defraud in the first case : 3 John. 237. So to prove a knowledge that a bill is forged, or that the payee is fic- titious, it is competent to show circumstances connected with the passing of other bills by the same party : 2 Hen. Bl. 288 ; 4 Bos. & Pul. 94, 95 ; 1 Phi. Ev. 137. See also, 1 John. 100, 108 ; 3 Es. Ca. 193 ; 2 John. Ca. 198 ; 16 Mass. Rep. 348, Somers V. Skinner ; 3 Barn. & Aid. 566, Eex v. Hunt et al. For these reasons, the verdict must be set aside and a new trial granted. Sch. s. 320, 321 ; 2 Kent. 230, 231 ; Wall «. Stanwlck, 34 Chan. Div. 763 ; Mathews v. Brise, 14 Bcav. 341. 5. Rights and duties of the guardian. (a) As to the person of the ward. As respects the person of the ward, the guardian's duties are commensurate with those of a parent. His right of custody is superior to that of relations and friends to whom the child may have been informally committed. Johns v. Emmbet. Supreme Court of Indiana, 1878. 62 Ind. 533. HowK, C. J. This was an application by the appellant, as guardian of the person and estate of Dulcena Johns, minor heir of Martha Emmert, deceased, against the appellee, for a writ of habeas corpus, to obtain the custody of the appellant's said ward. In his verified complaint the appellant alleged, in substance, that he was the guardian of Dulcena Johns, minor heir of Martha Emmert, deceased, duly appointed and qualified as such guardian, and legally entitled to the possession and cus- 308 ILLUSTRATIVE CASES tody of said ward ; that the appellee had the custody and pos- session of said ward wrongfully and unlawfully, and refused to deliver up to the appellant the possession of said ward, al- though often requested so to do ; that the appellee was not the father or guardian of said ward ; and that the appellee still retained and kept the custody and possession of said ward, in Boone County, Indiana, against the will and consent of the ap- pellant, and without any cause or pretence whatever. Where- fore, etc. To the writ of habeas corpus, issued on said complaint, the appellee made his return, in substance, as follows: That he had the body of said Dulcena Johns before the Court, in obedi- ence to said writ ; that the cause and pretence for the restraint of said Dulcena were, that the mother of said Dulcena, in the mother's lifetime, gave and transferred to the appellee the care, custody, and education of said Dulcena, until she should arrive at the age of twenty-one years, in consideration that the ap- pellee should have the right to take and keep said Dulcena until she should arrive at said age ; that the agreement was mutual between the mother of said Dulcena and the appellee ; that said Dulcena had no legitimate father ; that, at that time, said Dulcena was only four years old, and had no home, nor any person to care for her ; that the father of the said Dulcena was unknown, and her mother had long since been dead ; that the appellee had had the care and custody of said Dulcena for more than four years then last past ; that during that time the appellee had clothed and cared for said Dulcena, and had caused her to be taught to read and write ; that said Dulcena was then nine years old ; that the appellee had ample means to care for, support, and educate said Dulcena, who had become attached to the appellee and his wife ; that the appellant was illiterate and could not read or write, and was in no way com- petent to care for said Dulcena; that a suit was then pending in the Court below to remove the appellant from said guar- dianship ; that the facts stated in the petition for the appellant's removal were true ; and that the appellee did not restrain the said Dulcena of her liberty in any other or different way than as stated in his said return. Wherefore, etc. The appellant demurred to the appellee's return to said writ IN DOMESTIC RELATIONS. 309 of habeas corpus, upon the ground that it did not state facts sufficient to constitute a good return to said writ, which de- murrer was overruled by the Court, and to this ruling the ap- pellant excepted. The cause having been fully heard, the Court found that the custody of the child, Dulcena, should be awarded to the ap- pellee, and rendered judgment accordingly. The appellant's motion for a new trial was overruled, and he excepted to this decision, and appealed to this Court. The following decisions of the Circuit Court are complained of as errora, by the appellant, in this Court : — 1. The overruling of his demurrer to the appellee's return to the writ of habeas corpus issued in this cause. 2. The overruling of his motion for a new trial or hearing of his cause. We have no brief from the appellee, in this Court, and we confess our inabilitj' to discover any legal grounds for the de- cision of the Circuit Court. The evidence is properly in the record. There is no conflict in the evidence as to the material facts of the case. The child in controversy, Dulcena Johns, had no known father, and her mother was dead. The appel- lant was the brother of the child's mother, and, by the appoint- ment of the Court below, on the 10th day of August, 1874, he had since been, and then was, the guardian of the person and property of said child. In section 6 of "An Act touching the relation of guardian and ward," approved June 9, 1852, it is provided that " Every guardian so appointed shall have the custody and tuition of such minor, and the managenient of such minor's estate, during minority," etc. : 2 E. S. 1876, p. 589. This provision is mandatory, and the only exceptions thereto, in favor of the father, or, if he be dead, of the mother, of the minor, are not applicable to this case. Neither in the appellee's return to the writ, nor in the evidence adduced on the hearing, was there any cause shown why the appellant's legal right to the custody of his ward should be denied him. Dulcena Johns, the child in controversy, it appears from the record, made the following statements, on the part of the ap- pellee : " I want to live with Mr. Emmert" (the appellee) ; "he treats me kindly ; they don't abuse me. I'm afraid to go to 310 ILLUSTRATIVE CASES Mr. Johns" (the appellant) " for fear they will keep me. Mr. Johns always treated me kindly. I go there once every month. They never offered to make me stay at their house. I go to school, and can read and write. I am attached to Mr. Em- mert's family, and they to me." The express wish of Dulcena to live with the appellee afforded, perhaps, a sentimental reason for the decision of the Circuit Court ; but it would have been strange, we think, if, under the circumstances, she had expressed any different wish. It seems to us that the wishes of the child, of such tender years, ought not to be permitted to outweigh the legal right of the appellant to the custody of his ward. In our opinion the Court erred in overruling both the appel- lant's demurrer to the appellee's return to the writ, and the appellant's motion for a new trial or hearing of this cause. The judgment is reversed, at the appellee's costs, and the cause is remanded, with instructions to sustain the demurrer to the appellee's return to the writ of habeas corpus, and for further proceedings. Sch. s. 328 ; Holyoke v. Haskins, 5 Kck. (Mass.) 20 ; Story Conf. L. s. 540. The guardian takes the parents' place with reference to the support and education of the ward, the nature of the support and education depending upon the value of the ward's estate, and in all cases of doubt should be conducted under directions from the Court. In re Besondt. Supreme Court of Minnesota, 1884. 32 Minn. 385. Vanderburgh, J. Upon the trial in the District Court, upon appeal from the Probate Court, it appeared that the father of the respondent, John W. Perry, died in 1863, in the service of IN DOMESTIC RELATIONS. 311 the United States, leaving him surviving the respondent, an infant of the age of three years, and his widovir, Louisa J. Perry (who, in September, 1864, was married to Charles Besoudy), and thereupon the respondent became entitled to a pension from the United States Government, which was duly drawn for him and retained by one Cundift', acting for him until the appointment of his mother as guardian, which was duly made by the Probate Court of Olmsted County on the 29th day of January, 1870, and thereafter she drew the pension money accruing to him until her death. May 2, 1874, and also recovered from Cundift" the money received by him therefor, amounting in all to the sum of $1138.40. As respects the support and maintenance of the respondent, it appears that, soon after the second marriage of his mother, it was arranged between her and Besondy, that he should live with them and be supported as one of the family, and -.that the pension money should be applied and used in payment therefor. He accord- ingly lived with them, and was so supported as one of the family, both before and after her appointment as guardian, until her death. The reasonable value of his maintenance to the time of her appointment as guardian was found to have been the sum of $772.75. In adjusting the account of the administrator of the guardian with the respondent, the Court finally rejected the claim for the support of the ward prior to the appointment of the guardian, but allowed the amount claimed and found to have been necessarily incurred for his subsequent maintenance, and thereupon found the respondent entitled to a balance, on account of pension money received by her, of $645.40, with interest from the date of her death. The question here to be determined is whether the guardian should also be credited with the amount found to be the rea- sonable value of the maintenance of the respondent prior to the date of hev appointment. The respondent appears to have occupied the same relation to his mother and stepfather before as after her appointment. The arrangement made with the stepfather, though invalid as a contract, is sufficient to rebut the presumption that he took the child into his family to sup- port in loco parentis, and on account of his tender years he could render no service in return for such support. The obligation of 312 ILLUSTRATIVK CASES parents to support their minor children having a separate in- come is thus summarily stated : " The father is bound to sup- port his minor children if he be of ability, even though they have property of their own ; but this obligation in such a case does not extend to the mother:" 2 Kent, Comm. 191. In other words, the rule is not so rigorous in the case of the mother ; and if the child has property, the mother is not bound to pro- vide for its maintenance where the father would be : 1 Parsons on Contracts, 309. As a widow, upon her marriage to a second husband, is not liable for the support of her minor child, but is entitled to have his income applied thereto : Pub. St. (1858), c. 15, § 2 ; Gen. St. 1878, c. 15, § 2 ; Willard, Eq. Jur. 629 ; "Wilkes V. Rogers, 6 John. 566, 594. And a stepfather is, of course, not bound to maintain the children of his wife by a former husband. But if he voluntarily assumes the parental relation, and receives them into his family under circumstances such as to raise a presumption that he has undertaken to sup- port them gratuitously, he cannot afterwards claim compensa- tion for their support. We think it must be admitted that neither Besondy nor his wife was legally bound to support the respondent during these years, and it is quite clear that they furnished such support under the circumstances with the expectation of being reim- bursed out of his income, and not as a gratuity. That such application of the bounty of the Government, which was doubtless intended for such purposes, was proper in this case, the Court must have considered in its allowance of the amount found due for past maintenance, covering the time of the guar- dianship. But why should the line be drawn at that point, and the account of the expenses theretofore incurred be re- jected ? There is no difference in the equitable character of these claims, and we do not think the law recognizes any. No sucli distinction was recognized by the Court of Chancery, which exercised jurisdiction in such cases. In this State the jurisdiction exercised formerly by the Court of Chancery, as respects the care of infants and their estates, and for the ap- pointment and supervision of guardians, belongs to the Probate Court: State v. Ueland, 30 Minn. 277; Willard, Eq. Jur. 623, IN DOMESTIC RELATIONS. 313 624. And we think there is no more reason why, in a meri- torious case, an appointment as guardian should necessarily precede the necessary expenditures in behalf of an infant by a parent or other person who is not lawfully bound for his sup- port, in order to make them a proper charge upon his estate, than that such person should, under the chancery jurisdiction, have been compelled to have first brought suit to obtain the proper order or direction of the Court in the premises ; and upon this point Chancellor Kent, in re Bostwick, i John. Ch. 100, 105, says : Any other rule " would lead to great incon- venience, for though the wants of an infant might be ever so pressing, he could not receive any maintenance (charity excepted) without the expense of a suit and reference to a master." Though it is doubtless the safer rule, when practicable, that a guardian should first be appointed, and a preliminary order obtained, yet it is not indispensable. The Courts are not con- trolled by these formalities, but consider especially the welfare and interest of the child, rather than the accumulation of his income. And the rule permitting an allowance for past main- tenance in any case has this safeguard, in that, whatever amount the parent or other person may have expended for such purpose, the Court must inquire into the facts, and allow only such sums as are reasonable and proper under the circum- stances. The claim must be limited to necessary expenditures: Bond V. Lock wood, 33 111. 212. It is well settled that a guardian may support his ward without any order of Court, and all payments necessarily made for such purpose will be allowed him. And, in like manner, any one in possession of the infant's property, or a stranger, may maintain him, and be allowed therefor such sum as can be shown to be reasonable and proper : Macpherson on Infants, Law Lib. n. s, 213 ; Bond V. Lockwood, supra. As before intimated, the law shows special favor to the mother, and her application for past main- tenance will be granted in cases where that of a father would not be listened to. This, we apprehend, grows out of her naturally dependent position and of the consequent reluctance of the Courts to encroach upon her estate. We do not, how- 314 ILLUSTRATIVE CASES ever, undertake to say that her affirmative application for past maintenance will in all cases be granted when the child has property of his own, though his support was not intended to be a gratnity. The circumstances of the case might be such as to render it altogether inequitable. Here, however, there is no suggestion that the claim is not equitable, or that the mother had a sufficient estate of her own ; but the record, we think, warrants a contrary inference. The Courts are not, ordinarily, careful to require of a mother who remains unmarried, as in the case of a father, that a special case be made, showing the inadequacy of her own means, and the necessity of an allow- ance for that reason. Much less would such a showing be re- quired of a mother who was remarried, and ceased to be liable for the infant's support : Macpherson on Infants, 224, and cases ; Bruin v. Knott, 12 Sim. 436 ; Haley v. Bannister, 4 Madd. 275 ; Schouler, Dom. Eel., -Sd ed., § 239 ; Willard, Eq. Jur. 639 ; Mowbry v. Mowbry, 64 111. 383. Where any question is made as to the good faith, or amount or equity of the claim, the investigation will naturally develop into an inquiry into all the facts and circumstances material to a just determination of the case: In re Cottrell's Estate, L. R. 12 Eq. Cas. 566. We are unable, therefore, to discover any good reason why the administrator should not be entitled to be allowed for the maintenance of respondent, as well before as subsequent to Mrs. Besondy's appointment as guardian, by way of set-ofi against his claim. The money was received by Besondy and his wife, he joining in the receipts therefor, and its equivalent and more had been expended by them for his support. Though Besondy's recollection is faulty as to the amount actually re- ceived by him, and the cost of collecting it, and the Court does not fix it, yet he admits he must have received most of it by his wife's order, and he seems to have controlled its expenditure. However, if there is any question as to the net amount actually received by Besondy, it may be determined in another trial. In the printed argument of appellants' counsel, some points are made which were not included in those previously served upon, respondent's counsel under rule 11 of this Court. They IN DOMESTIC RELATIONS. 815 ■ are not, therefore, considered. The respondent is in all cases entitled to rely upon the copy served as containing all the points which appellant will make upon the argument-. Judgment reversed, and new trial ordered. Sch. s. 333, 334, 336, 337 ; In re Bostwick, 4 Johns, c. 100 ; Strong v. Moe, 8 Allen, 125 ; McKenna v. Merry, 6 111. 177. (h) As to the personal estate of the ward. Guardians assume full control of the ward's fortune. The personal property must be securely and produc- tively invested. King v. Talbot. Supreme Court of ^ew York, 1869. 40 N. Y. 76. These were actions brought separately by William Vernon King, Anna Henrietta King, and Arthur King, the three chil- dren of Charles "W". King, deceased, against the surviving executor and the administrator of a deceased executor of said Charles, for an account of the moneys due them respectively, for the principal and accumulations of their respective legacies . under their father's will, and for the payment over of the amount found due. The causes were tried together at Special Term, before a Justice of the Supreme Court, from whose de- crees all parties appealed to the General Term, where they were affirmed, without costs of appeal. The defendants ap- pealed to this Court. The plaintifts also brought cross-appeals from that part of, the decrees allowing interest to the defen- dants on their payments for maintenance of the plaintiffs, post- poning interest on the legacies until a year from the testator's death, and some other minor credits. William Vernon King died after the commencement of his action ; and his executrix was substituted as the plaintiff. 816 ILLUSTRATIVE CASES Charles "W. King, the father, died on a voyage from Ceylon to Suez, September 26, 1845, leaving a widow and these three children, all then infants. By his will, made at Macao, he bequeathed to each of his three children the sum of ^15,000 ; " the interest on the same, so far as required, to be applied to their maintenance and education, and the principal, with any accumulations thereon, to be paid to them severally on their majority." He entrusted to the " discretion" of his executors " the settlement of my aft'airs and the investment of ray estate for the benefit of my heirs." The defendants named, and who qualified as his executors, had been his partners in business, both at New York and in China. The will was proved abroad, and letters issued December 5, 1846. The executors, prior to December 31, 1849, had pos- sessed themselves of the estate to the amount of over $105,000. On the 16th of December, 1847, they filed an inventory amount- ing to over $106,000. They did not collect or have in their hands for investment so large an amount as $45,000 until June 9, 1847. No account has ever been rendered by them to the surrogate of their administration. Between March 5 and December 19, 1847, the executors in- vested in United States treasury notes and Ohio State bonds a sum exceeding $45,000 of the moneys of the estate. Between August 1, 1848, and November 10, 1849, they sold $41,986 of said investment, at a profit of $1312.77, and reinvested the money realized from such sales in Delaware and Hudson Canal Company stocks, Saratoga and Washington Railroad Company stocks. New York and New Haven Railroad Company stocks, Harlem Railroad Company stocks, Hudson River Railroad Company bonds, and Bank of Commerce stock and scrip, for account of the children. On the 1st day of April, 1850, they set apart for the children, as an investment of their legacies, the following stocks and bonds, constituting a portion of the aforesaid investments, at an estimated valuation equal to the price paid by them : — IN DOMESTIC RELATIONS. 817 $4000 of Ohio 7 per cent, stocks, at 103, and J brokerage $3500 of Ohio 5 per cent, stocks, at 92, and J . brokerage 45 shares of the stock of the Delaware and Hud- son Canal Company, and five shares of scrip stock of said company, at 40 shares Saratoga and Washington Railroad Company stock, at . . . . 200 shares preferred stock New York and Har- lem Railroad Company, at ... . $10,000 in amount in bonds of Hudson Eiver Railroad Company 125 shares of the scrip stock of the Bank of Com- merce 30 shares stock ISew York and IvTew Haven Rail- road Company 14,130 00 3,228 75 7,758 75 3,411 70 10,025 00 9,687 50 4,306 52 2,482 50 Making in all $45,390 45 And they opened an account of these investments with the children, and debited it with the $45,390.45, and also the in- come therefrom, and credited the same with payments made for the support and maintenance of said children. They, on the same day, paid over the balance of the estate to the resid- uary legatee. The Ohio 7 per cents were redeemed in January', 1852, and the Ohio 5 per cents were redeemed in January, 1857, and the proceeds invested in Bank of Commerce scrip and JSTew York Central bonds. It was found by the Judge who tried the causes that at the time these investments were made, and at the time said stocks and bonds were set apart, as well as at the time the others were subsequently purchased, the stocks and bonds were in good repute, and were considered by men, upon whose judg- ment it was proper to rely, as safe and desirable investments. The investments were made and set apart in good faith, the executors having invested their own funds in similar stocks and retained the same. 318 ILLUSTRATIVE CASES D. "W". C. Olyphant, one of the etxecutors, died in June, 1851, and the defendant, Olyphant, was appointed adminis- trator of his estate. The testator made no provision for the support of his chil- dren other than that contained in his will. From his death to April, 1850, they resided with their , mother. The income, which had been realized from the investments of the estate up to April 1, 1850, was divided by the executors between the mother (residuary legatee) and the children, in the proportions in which they were respectively entitled to the estate, and some advances for maintenance of the children made in addi- tion. The children now reject the stock investments made by the executors, and claim that the defendants should be made liable for all moneys invested in those stocks, with interest from the death of the- testator, and for all profits resulting from their dealings with such moneys, and bring these actions to enforce such claims. The Court, at Special Term, decided that it was the duty of the executors, within a reasonable time after the receipt of a sufficient amount of funds, belonging to the estate, to invest the amount of the legacies in the stocks of the United States, and of the State of New York, and keep the same so invested ; and, having failed to do so, their investments were invalid, and the executors were personally liable for the amount of the lega- cies, with compound interest from September 1, 1846, at 7 per cent. It also held that the conduct of the executors was in good faith, and without fraud ; the children must, therefore, reject all or none of the investments ; and that the executors were entitled to commissions. It was referred to a referee, to make up an account, charging the executors with the legacies, on the 26th of September, 1846 (one year from the death of the testator), and with interest thereon, at 7 per cent., from that date, computed with annual rests. The referee stated an account upon this basis, crediting the executors with their payments, for maintenance and support of the children, each year, and interest on such payments, from the date of each, to the en- suing 26th of September, when such payments with the com- missions and interest were deducted from the amount of the IN DOMESTIC EEIiATIONS. 319 legacies, and the year's interest then accrued upon them, and the executors were debited with the balance, as a new prin- cipal. From that, increased by a year's interest thereon,' to the ensuing 26th of September, again, the amount of their pay- ments in the meantime, with interest and commissions, were deducted, leaving a new principal, and so on to the final bal- ance. The decree was entered in accordance with this report. Stephen P. Nash, for the appellants, insisted that there was no rule of law in this State making the investment by a trustee in any particular security, of itself, a breach of trust ; and that if the trustee acts with prudence and in good fath, he is protected. The rule in England, as to investments, is not a rule of the common law, but merely local, and not applicable to this country. Upon this point he cited Lowell v. Minot, 20 Pick, 119 ; Harvard College v. Amory, 9 Id. 446 ; Han- com V. Allen, 2 Dickens, 498 ; Traffojd v. Boehm, 7 Vesey, 151 ; Howe v. Earl of Dartmouth, 7 Id. 151 ; Smith v. Smith, 4 Johns. Ch. 281, 445 ; Brown v. Campbell,, Hopkins, 233 ; White V. Parker, 8 Barb. 48, 53; Hoffman's Master, p. 125 ; Clarkson v. Depeyster, Hopk. 274. The English rule originated from the statute 25 George II., ch. 27. Prior to that Act investments in stocks were sanctioned there. Before Lord St. Leonard's Act (23, 24 Vict, ch. 35, § 32), authorizing investments of trust funds in real estate securities, they were not approved in England : JEx parte Calthorpe, 1 Cox Ch. Cas. 182 ; N"orbury v. l^orbury, 4 Madd. 191 ; Eaby v. Eidehaugh, 7 De G. M. & G. 104. He further insisted that the discretion given by the will to the trustees as to investments left them untrammelled within the bounds,of prudence and good faith, and cited Band v. Far- dell, 7 De G. M. & G. 628, 632 ; Jackson v. Jackson, 1 M. & K 514. But if the investments are illegal, and the discretion given by the will is of no force, the executors should not be charged with compound interest : Sir J. Romilly, M. R,, in Jones v. Foxhall, 15 Beav. 392 ; Hill on Trustees [Am. Ed. of '67], 374, and note ; Attorney General v. Alford, 4 De G. M. & G-. 843 ; Blogg V. Johnson, Law Eep. 2 Ch. Appeals, 225 ; Clarkson v. Depeyster, 2 Wend. 77 ; Rapelye v. Norsworthy, 1 Sandf. Ch. 820 ILLUSTRATIVE CASES 399 ; TJtica Ins. Co. v. Lynch, 11 Paige, 520, 528, 524 ; Lansing V. Lansing, 45 Barb. 182, 191 ; Corning v. Howard, 46 Id. 579 ; Ackerman v. Emott, 4 Barb. 626. The rate of interest should be less than 7 per cent. : Hill on Trustees, 374; Williamson v. Williamson, 6 Paige, 298, 308 ; 7 Ves. 137. The interest is only chargeable, at all, against the executors, after a year from testator's death : Cooke v. Meeker, 36 K Y. 15 ; 6 Paige, 298. The cestui que trust cannot claim profits upon some invest- ments, and reject the others : Heathcote v. Hulmes, 1 Jac. & Walker, 122 ; Robinson v. Eobinson, 1 De G. M. & G. 256 ; Lewin on Trusts, 249. George N. Titus, for respondents, upon the point that trustees can only invest in State, Federal, or real estate securities, cited Ackerman v. Emott, 4 Barb. 626 ; In re Colne Valley Railway, 1 De Gex. F. & Jones, 53 ; Trafford v. Boehm, 3 Atk. 441 Hancom v. Allen, 2 Dick. 498 ; Adye v. Feuilleteau, 3 Swanst 83, note ; Clough v. Bend, 3 Mylne & Craig, 491 ; 7 Ves. 150 Hill on Tr. 376-7 ; Bogardus v. Trinity, Ch. 4 Paige, 198 Laws of 1813, p. 492, sec. 19 ; 1 Paige, 321, 328 ; 4 Edw. Ch, E. 722 ; 4 Johns. Ch. 281 ; Salway v. Salway, 2 Russ. & M, 218 ; 2 Story's Eq. Jur., sec. 1269 ; 2 White & Tudor's Lead ing Eq. Cases, 802 ; Robinson v. Robinson, 11 Beavan, 371 Mant V. Leith, 15 Id. 524 ; Harris v. Harris, 29 Id. 107 Hemphill's Appl., 18 Penn. St. 308 ; Worrall's Appl., 23 Id. 44 Smith V. Smith, 7 J. J. Marsh, 238; Drosier v. Brereton, 16 Beavan, 221 ; Mortimore v. Mortimore, 4 De Gex. & J. 472 ; Kimball v. Reading, 11 Foster, 852. Upon the extent of the discretion as to investments left to the executors by the will, he cited Gray v. Fox, Saxton's Rep. 259 ; Trafford v. Boehm, supra ; Wilkes v. Steward, Cooper's Ch. Cases, 6 ; Pocoek v. Redington, 5 Ves. 795 ; Harris v. Harris, supra ; Hill on Trustees, 369. In this case, the plaintiff's maintenance being charged upon the interest of the legacy, they are entitled to interest from the death of the testator : Williams on Ex'rs, 1284 ; Beckford v. Tobin, 1 Ves. Sr, 808 ; Heath v. Perry, 3 Atk. 102 ; Incledon V. ISTorthcote, Id. 438 ; Mole v. Mole, 1 Dick. 310 ; Carey v. Austin, 2 Brown Ch. R. 58 ; Cooke v. Meeker, 36 N. Y. R. 15 . IN DOMKSTIC KELATIONS. 321 Lawrence v. Embree, 3 Bradf. 364 ; and at the legal rate, Ack- erman v. Emott, 4 Barb. 628 ; Dunseomb v. Dunscomb, 1 Johns. Ch. R. 508 ; Olarkson v. Depeyster, Hopk. 426 ; and it should be computed with annual rests : Raphael v. Boehin, 18 Ves. 411 ; Knott V. Cottee, 16 Jur. 752 ; Montford v. Cadogan, 17 Ves. 485; Sehreffelin v. Stewart, 1 Johns'. Ch. 627; Exjparte Baker, 18 Ves. 246 ; Byrne v. JSToreott, 13 Beavan, 336 ; Barney v. Sanders, 16 How. U. S. R. 542 ; Bowles v. Drayton, 1 Desau. (Eq.) 489 ; Edmonds v. Crenshaw, Harper's Eq. R. 224 ; Fall v. . Simmons, 6 Georgia, 271. The executors should not be allowed commissions : Hemp- hill's App'l, supra; Worrall's App'l, supra; Depeyster v. Clarkson, supra. Costs should have been given against the trustees on affirm- ance : Gray v, Thompson, 1 Johns, Ch. 84 ; Caffrey v. Darby, 6 Ves. 88 ; Seers v. Hind, 1 Ves. Jr. 394 ; Bryne v. ITorcott, supra; Drosier v. Bveretou, supra ; Hill on Trusts, 557, 559, note g. Woodruff, J. It is conceded that in England the rule is, and has long been settled, that a trustee, holding funds to in- vest for the benefit of his cestui que trust, is bound to make such investment in the public debt, for the safety whereof the faith of their government is pledged ; or in loans, for which real es- tate is pledged as security. And that, although the terms of the trust commit the investment, in general terms, to the dis- cretion of the trustee, that discretion is controlled by the above rule, and is to be exercised within the very narrow limits which it prescribes. As a purely arbitrary rule, resting upon any special policy of that country, or on any peculiarity in its condition, it has no application to this country. It is not of the common law. It had no applicability to the condition of this country while a colony of Great Britain, and cannot be said tb have been in- corporated in our law. So far, and so far only, as it can be said to rest upon fundamental principles of equity, commending themselves to the conscience, and suited to the condition of our affiiirs, so far it is true that it has appropriate application and force, 21 322 ILLUSTRATIVE CASES as a guide to the administration of a trust here as well as in England. I do not, therefore, deem it material to inquire, through the multitude of English eases, and the abundant texts of the law writers, into the origin of the rule in England, or the dat-e of its early promulgation. iNor, in this particular case, do I deem it necessary to determine whether it should, by precise analogy, be deemed to prohibit here investments in any other public debt than that of the State of 'New York. E"either, in my judgment, are we at liberty, in the decision of this case, to propound any new rule of conduct, by which to judge of the liability of trustees now subjected to examination. Under trusts heretofore created, the managers thereof performed their duty with the aid of rules for the exercise of their discre- tion, which were the utterance of equity and good conscience, intelligible to their understanding, and available for their in- formation ; otherwise, trusts heretofore existing have been traps and pitfalls to catch the faithful, prudent, and diligent trustee, without the power to avoid them. But it is not true that there is no underlying principle or rule of conduct in the administration of a trust which calls for obedience. Whether it has been declared by the Courts or not, whether it has been enacted in statutes or not, whether it is in familiar recognition in the affairs of life, there appertains to the relation of trustee and cestui que trust, a duty to be faith- ful, to be diligent, to be prudent in administration entrusted to the former, in confidence in his fidelity, diligence, and pru- dence. To this general statement of the duty of trustees, there is no want of promulgation or sanction, nor want of sources of infor- mation for their guidance. In the whole history of trusts, in decisions of Courts for a century in England, in all the utter- ances of the Courts of this and the other States of this country, and not less in the conscious good sense of all intelligent minds, its recognition is uniform. The real inquiry, therefore, is, in my judgment, in the case before us, and in all like cases : Has the administration of the trust created by the will of Charles "W". King, for the benefit of the plaintiff", been governed by fidelity, diligence, and pru- IN DOMESTIC RELATIONS. 323 dence? If it has, the defendants are not liable for losses which, nevertheless, have happened. This, however, aids but little in the examination of the de- fendants' conduct, unless the terms of definition are made more precise. What are fidelity, diligence, and discretion? and what is the measure therof, which trustees are bound to possess and exercise ? It is hardly necessary to say that fidelity imports sincere and single intention to administer the trust for the best interest of the parties beneficially interested, and according to the duty which the trust imposes. And this is but a paraphrase of " good faith." The meaning and measure of the required prudence and dili- gence have been repeatedly discussed, and with a difference of opinion. In extreme rigor, it has sometimes been said that they must be such and as great as those possessed and exercised by the Court of Chancery itself. And again, it has been said that they are to be such as the trustee exercises in the conduct of his own affairs, of like nature, and between these is the declaration that they are to be the highest prudence and vigi- lance, or they will not exonerate. My own judgment, after the examination of the subject, and bearing in mind the nature of the office, its importance, and the considerations which alone induce men of suitable experi- ence, capacity, and responsibility to accept its usually thankless burden, is that the just and true rule is that the trustee is bound to employ such diligence and such prudence in the care and management as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs. This necessarily excludes all speculation, all investments for an uncertain and doubtful rise in the market, and, of course, everything that does not take into view the nature and object of the trust and the consequences of a mistake in the selection of the investment to be made. It, therefore, does not follow that because prudent men may, and often do, conduct their own affairs with the hope of grow- ing rich, and therein take the hazard of adventures which they deem hopeful, trustees may do the same ; the preservation of the fund, and the procurement of a just income therefrom, are 824 ILLDSTRATIVE CASES primary objects of the creation of the trust itself, and are to be primarily regarded. If it be said that trustees are selected by the testator, or donor of the trust, from his own knowledge of their capacity, and without any expectation that they will do more than, in good faith, exercise the discretion and judgrnent they possess, the answer is : Firsts the rnle properly assumes the capacity of trustees to exercise the prudence and diligence of prudent men in general ; and, second, it imposes the duty to observe and know, or learn, what such prudence dictates in the matter in hand. And once more, the terms of the trust, and its particular ob- ject and purpose, are, in no case, to be lost sight of in its admin- istration. Lewin, in his Treatise on the Law of Trusts, &c. (p. 332), states, as the result of the several cases, and as the true rule, that " a trustee is bound to exert 'precisely the same care and solicitude in behalf of his cestui que trust as he would do for himself; but greater measure than this a Court of Equity will not exact." In general, this is true ; but if it imports that, if he do what men of ordinary prudence would not do in their own affairs, of a like nature, he will be excused on showing that he dealt with his own property in like want of discretion, it cannot be sustained as a safe or just rule towards cestuis que trustent; nor is it required by reasonable indulgence to the trus- tee; it would be laying the duty to be prudent out of view entirely, and I cannot think the writer intended it should be so understood. The Massachusetts cases (9 Pick. 140 ; 20 Id. 116), cited by the counsel for the defendants, are in better conformity with the rule as I have stated it. To apply these general views to the case before us, and with the deductions which necessarily flow from their recognition : The testator gave to each of his children fifteen thousand dol- lars, the interest on the same, so far as required, to be applied to their maintenance and education, and the prindpal,yv'ith any accumulations thereon, to be paid to them severally on their majority ; appointed the defendant, Talbot, and his partner, Mr. Olyphant, executors, " entrusting to their discretion the IN DOMESTIC RELATIONS. 325 eettleraent of my affairs and the investment of my estate for the benefit of my heirs." If I am correct in my views of the duty of trustees, this last clause neither added to, nor in any wise affected the duty or responsibility of these executors ; without it, they were clothed with discretion ; with it, their discretion was to be exercised with all the care and prudence belonging to their trust relation to the beneficiaries. Such is the distinct doctrine of the casus very largely cited by the counsel for the parties, and is, I think, the necessary conclusion from the just rule of duty I have stated. What, then, was the office of the trustees, as indicated by the terms and nature of the trust ? If its literal reading be fol- lowed, it directed that " fifteen thousand dollars" in money be placed at " interest." The nature of the trust, according to the manifest intent of the testator, required that, in order to the maintenance and support of infant children, whose need, in that regard, would be constant and unremitting, that interest should flow in with regularity and without exposure to the uncertain- ties or fluctuations of adventures of any kind, ^nd then the fund should continue, with any excess of euch interest accumu- lated for their benefit, so as to be delivered at the expimtionof their minority. Palpably, then, the first and obvious duty was to place that fifteen thousand dollars in a state of security ; second, to see to it that it was productive of interest ; and, third, so to keep the fund that it should always Le subject to future recall for the benefit of the cestui que trust. I do not attach controlling importance to the word " interest" used by the testator, but I do regard it as some guide to the trustees, as an expression of the testator, that he did not con- template any adventure with the fund, with a view to profits as such. But, apart from the inference from the use of that w^ord, I think it should be said that whenever money is held upon a trust of this description it is not according to its nature, nor within any just idea of prudence, to place the principal of the fund in a condition in which it is necessarily exposed to the hazard of loss or gain, according to the success or tailure of the 326 ILLUSTRATIVE CASES enterprise in which it is embarked, and in which, by the verp teiins of the investment, the principal is not to be returned at all. It is not denied that the employment of the fund as capital in trade would be a clear departure from the duty of trustees. If it cannot be so employed under the management of a copart- nership, I see no reason for saying that the incorporation of the partners tends, in any degree, to justify it. The moment the fund is invested in bank, or insurance, or railroad stock, it has left the control of the trustees ; its safety and the hazard or risk of loss are no longer dependent upon their skill, care, or discretion in its custody or management, and the terms of the investment do not contemplate that it ever will be returned to the trustees. If it be said that, at any time, the trustees may sell the stock (which is but another name for their interest iu the prop- erty and business of the corporation), and so re-possess them- selves of the original capital, I reply, that is necessarily con- tingent and uncertain ; and so the fund has been voluntarily placed iu a condition of uncertainty, dependent upon two con- tingencies: First, the practicability of making the business profitable ; and, second, the judgment, skill, and fidelity of those who have the management of it for that purpose. If it be said that men of the highest prudence do, in fact, invest their funds in such stocks, becoming subscribers and contributors thereto in the very formation thereof, and before the business is developed, and in the exercise of their judgment, on the probability of its safety and productiveness, the answer is, so do just such men, looking to the hope of profitable re- turns, invest money in trade and adventures of various kinds. In their private affairs they do, and they lawfully may, put their principal funds at hazard ; in the affairs of a trust they may not. The very nature of their relation to it forbids it. If it be said that this reasoning assumes that it is certainly practicable so to keep the fund that it shall be productive, and yet safe against any contingency of loss ; whereas, in fact, if loaned upon bond and mortgage, or upon securities of any de- scription, losses from insolvency and depreciation may and often do happen, notwithstanding due and proper care and caution is observed in their selection. Not at all. It assumes IN DOMESTIC RELATIONS. 327 and infeists that the trustees shall not place the fund where its safety and due return to their hands will depend upon the suc- cess of the business in which it is adventured, or the skill and honesty of other parties entrusted with its conduct; and it is in the selection of the securities for its safety and actual return that there is scope for discretion and prudence, which, if exer- cised in good faith, constitute due performance of the duty of the trustees. My conclusion is, therefore, that the defendants were not at liberty to invest the fund bequeathed to the plaintiff in stock of the Delaware and Hudson Canal Company ; of the New York and Harlem Railroad Company ; of the New York and New Haven Railroad Company ; of the Bank of Commerce ; or of the Saratoga and Washington Railroad Company ; and that the plaintiff was not bound to accept these stocks as and for his legacy, or the investment thereof.; In regard to the bonds of the Hudson River Railroad Com- pany and of the Delaware and Hudson Canal Company, it ap- pears by schedule B, given in evidence, that the former were mortgage bonds; but what was the extent or sufEciency of the security afforded by such mortgagej or what property was em- braced in it, does not appear, nor does it appear whether there was any security whatever for the payment of the canal com- pany's bond. It is not necessary for the decision of this case, and I am not prepared to say, that an investment in the bonds of a rail- road, or other corporation, the payment whereof is secured by a mortgage upon real estate, is not suitable and proper under any circumstances. If the real estate is ample to insure the payment of the bonds, I do not, at present, perceive that it is necessarily to be regarded as inferior to the bond of an individual secured by mortgage ; it would, of course, be open to all the inquiries which prudence would suggest, if the bond and mortgage were that of an individual. The nature, the location, and the suffi- ciency of the security, and the terms of the mortgage, and its availability for the protection and ultimate realization of the fund must, of course, enter into the consideration. But it is not necessary to pursue that subject. The plaintiff, 328 ILLUSTRATIVE CASES iu his complaint, rejects the entire investment. The Court be- low held that it was equitable that the plaintifl" should be held to receive the whole or none of the stocks and bonds, and to that ruling neither the plaintiff nor the defendants have excepted ; and, therefore, the question whether the judgment below was correct in that respect is not before us. It is proper, however, to say that I do not clearly apprehend the propriety of that ruling, unless it be on the ground that the plaintiff, in his complaint, did so elect. The rule is perfectly well settled that a cestui que trust is at liberty to elect to approve an unauthorized investment, and enjoy its profits, or to reject it at his option ; and I perceive no reason for saying that where the trustee has divided the fund into parts and made separate investments, the cestui que trust is not at liberty, on equitable as well as legal grounds, to approve and adopt such as he thinks it for his interest to ap- prove. The money invested is his money ; and in respect to each and every dollar, it seems to me, he has an unqualified right to follow it, and claim the fruits of its investment, and that the trustee cannot deny it. The fact that the trustee has made other investments of other parts of the fund, which the cestui que trust is not bound to approve, and disaflirms, cannot, I think, affect the power. For example, suppose, in the present case, the cestui que trust, on delivery to him of all the securities and bonds in which his legacy had appeared invested, had declared : Although these investments are improperly made, not in accordance with the intent of the testator, nor iu the due performance of your duty, I waive all objection on that account, except as to the stock of the Saratoga and Washington Railroad Company. That, I reject and return to you. Is it doubtful that his position must be sustained ? The result is, that the main features of the judgment herein must be affirmed. The testator died abroad September 26, 1845. The will was proved in Chancery October SOth, 1846, and letters testamentary were issued December 5, 1846, and the inventory of the estate made and filed on the 16th day of December, 1847. It is ex- pressly found by the Court that the executors did not collect, or have in their hands for investment, a sum sufficient to pay IN DOMESTIC RELATIONS. 329 the three legacies in question until June 9th, 1847. No fault or negligence is imputed to the executors in this respect. The trustees were, therefore, not under any duty to make the invest- ment of the legacies before that time. The question whether these legacies bore interest, as a pro- vision for the support of children dependent thereon for their maintenance, is a very different question from the inquiry whether, as trustees, the executors were chargeable with inte- rest, as income from the legacy itself. As between the children and the estate, the legacies un- questionably bore interest from the death of the testator ; but as between them and the trustees of the legacy, only from the time when the legacy, as such, was or ought to have been invested. Whatever sum, therefore, the executors paid to the mother of these children for their support and maintenance was pro- perly charged to the children, and it is not of the slightest im- portance whether it was paid under the name of payment for their support, or as residuary estate, upon which it was properly chargeable. Had the trustees of the legacy been other and different per- sons from the executors, I do not perceive that the latter could have refused to pay to the trustees, out of the estate in their hands, interest on the legacy, until they were prepared to pay it over for investment. Interest should, therefore, be allowed upon the legacy from the death of the testator. It is payable out of the estate, irre- spective of the question whether the estate was itself producing income iu the hands of the executors; and as against the execu- tors as such, it should be allowed, only down to June 5th, 1847, when there were funds to be paid over and invested as and for the plaintiff's legacy. But as the executors and trustees are the same, there is no occasion to make a rest at that date ; it should be assumed in the trustees' account that the interest was received annually. I think it entirely clear that the account should be stated with annual rests. So nearly as may be, the plaintiff is entitled to such benefit as he would have derived from an investment of his legacy. The testator expressly directs that 330 ILLUSTRATIVE CASES the surplus of interest, not required for maintenance, be accumulated. This devolved on the trustees the duty to iuvest such surplus, from year to year. Had the trustees made the investment of the principal in the manner which I think was their duty, and it had appeared that small amounts of surplus income necessarily remained unproductive in their hands, such necessity would excuse them from any charge for interest thereon ; they would not be charged for income, which by reasonable diligence they could not obtain ; but the duty to invest being clear, we have no alternative, in the absence of such actual investment, but to treat the invest- ment, for the purposes, of the accounting, as made when it ought to have been made, i. e., at the end of each year. The manner in which the account was stated by the Court below, unless I misunderstand it, rendered it not only proper, but necessary, to allow interest upon the payments made by the executors for maintenance, for by making the whole annual income bear interest from the moment it was received (or, as a charge to the trustees, became due, which is the same thing), the payments, in each year, were practically made advances, in anticipation of the interest which would be pay- able at the end of that j'ear; and, therefore, as the trustees were charged interest on the previously accrued income, out of which maintenance was to be provided, that charge must be counterbalanced by an allowance of interest, pro tanto, for so much as was applied to maintenance. The principle for which the plaintiff contends is unques- tionably correct, viz. : That, at no time, when the trustees make payments for maintenance, with income in hand, not bearing interest, should they be allowed interest on such payments. The accurate and just mode of stating the accounts is to credit the plaintiff, on the day of the decease of the testator, September 26, 1845, with the amount of the legacy. At the end of the year, interest will have accrued for twelve months, to be then, i. e., September 26, 1846, credited. Any payments for support, during that twelve months, should be regarded as an advance, and should, therefore, bear interest, and on the 26th September, 1846, the balance being struck, it will appear how much of income remains for the support of plaintiff for IN DOMESTIC fiELAIIONS. 331 the ensuing year. But as that, or a then unknown portion thereof, will be required during such ensuing year, the trustees would not, had it been received from actual loans, duly made, be required to invest it, but to retain it for such support. If, however, at the end of such year, i. e., September 26, 1847, any portion of it remained unexpended, then such remainder should be added to the principal, for accumulation, and bear interest. On that same date, September 26, 1847, the interest for the year ending that day will have accrued, and that, iu turn, should be held for the support of the , plaintiff, for the year immediately ensuing ; at the end of which, to wit : Sep- tember 26, 1848, if any remained, such remainder should be added to the principal as an accumulation. The rule being, that advances for support, without income in hand, should bear interest.; advances for support, with in- come in hand, should not bear interest ; and the income becom-: ing due at the end of the year is not to be forthwith invested, or made to bear interest, but may properly be held by the trustees, to meet the charge for the support of the plaintiff, for the then coming , year ; and if any portion thereof re- mained at its end, such remainder should then, and not till then, be carried to principal, and bear interest. Assuming the items correct, as they appear in the account stated by the referee, this will entitle the defendants to be credited in the years, 1846, 1847, 1848, 1849, and in 1859, 1864, and 1865, on the excess of their payments for support, over the amount of uninvested income in their hands, at the beginning of the year. I am aware that the mode of keeping the account among merchants, is to charge interest on both sides of the account; but the plaintiff insists that this makes him pay interest for his support when the trustees have income in hand. The mode of stating the account I have proposed: is, I think, literally just and exact, and is not liable to any such criticism. The remaining inquiry is, at what rate should interest be charged ■? The view which I have taken is strict in holding the de- fendants to an exact discharge of their duty. But it does not forbid, and ought not to prevent, a recognition of their entire 332 ILLUSTRATIVE CASES good faith and perfect rectitude of purpose in the entire ad- ministration. This is found by the Court, and the evidence leaves no room to question their sincerity in the exercise of the discretion which they believed was committed to them, nor that they have been governed throughout by a desire to secure and promote the best interests of the infant children of their deceased partner and friend. With what is termed the ungracious aspect of this prosecu- tion by those, for whom they assumed what is very often an irksome and thankless ojBiee, we cannot deal. But we may and ought to say, that no imposition in any wise in the nature of a penalty should be permitted. Where the failure of a trustee in his duty is wilful, or char- acterized by bad faith, the highest rate of interest should be imposed. But where good faith and honest mistake concur, the rate of interest rests in a discretion that permits the con- sideration of all the circumstances which show that substan- tial justice can be done to the cestui que trust, by allowing a less rate. Hence, in such case, we may not close our eyes to the fact that in a long course of years, such as are now under considera- tion, there are periods in which it is impracticable to realize on investments, which give the requisite assurance of safety, the highest interest allowed by law. That loans for long periods will rarely be taken, on such security, at the highest rate. That in a commercial community like our own fluctua- tions are frequent and large, and especially that in the man- agement of funds of considerable amount there must necessa- rily be intervals when funds lie idle seeking investment, not- withstanding all reasonable diligence on the part of the trustees. These and like considerations have led the Court of Chan- cery in England to charge the executor with, not exceeding, four per cent, where he has acted in good faith and has not himself realized a greater profit, the legal rate of interest being five per cent. ; and I think there is nothing in Ackerman v. Emott, 4 Barb. C. R. 628 ; Dunscomb v. Dunscomb, 1 Johns. IN DOMESTIC RELATIONS. 333 Ch. 508 ; or Clarkson v. Depejster, Ilopk. Ch. E. 426, that for- bids their due weight in our decision. My conclusion on this point is, that the trustees are not justly chargeable with more than six per cent. That convic- tion is strengthened by the fact that the stocks of the United States, which the counsel for the plaintiff' concedes would have been a proper security, do not, in the absence of the present extraordinary condition of our affairs, yield a higher rate; and it is at least doubtful whether, during many years of the con- tinuance of this trust, these stocks couid have been had without the payment of a premium, which would have reduced the income still lower. There is no ground for withholding commissions. Even in cases of misconduct or gross negligence it is, at least, doubtful whether the settled rule in this State would not require the allowance of commissions ; and where no imputation of this rests upon the trustees, their title to commissions is in no doubt : See Vauderheyden v. Vanderheyden, 2 Paige, 288 ; Eapelje v. Norsworthy's Executors, 1 Sandf. Oh. E,. 406 ; Meacham v. Sterns, 9 Paige, 405. It is not very material to notice an apparently palpable error in the judgment, except to call the attention of counsel to it in the future. The account stated by the referee contains a credit to the defendants of $128.95, paid for income tax in October, 1865 ; and the apparent amount to the credit of the plaintiff in that account ($26,964.27) is subject to abatement for that pay- ment ; and nevertheless the judgment was entered for the full sum of $26,964.27, without allowing the credit for that income tax, although the referee had credited it to the defendant, he not having made the actual deduction. The degree herein should be modified to conform to the fore- going views, with a direction to state the account accordingly ; and in other respects it should be affirmed, without costs on this appeal. Sch. s. 352; Minn. Probate Code, 1889, s, 161, 162, 164;Caffrey v. Darby, 6 Ves. 488 ; Carey v. Bond, 6 Beav. 486 ; Ware v. Ware, 28 Gratt. 670. 334 ILLUSTKATIVB CASES Some Courts hold that in the absence of an order from the Court the guardian can under no condition use the principal of his ward's estate for maintenance, etc.; but the better and more common rule is that guardians will be protected in all necessary, proper, and economical disbursements made for the benefit of the ward, though made without an order from the Court, and although they trench upon the capital of the estate, and such acts will be confirmed by the Court, if it appears that such acts would have been allowed by the Court had an application been made. GoTT V. Gulp. Supreme Court of Michigan, 1881. 45 Mich. 265. Campbell, J. Plaintiff in error was appointed by the Pro- bate Court for the county of "Washtenaw in 1861 as guardian of defendant in error, then about six years old, her name being then Goodrich. In 1876 she married. Mr. Gott at the end of his trust filed his account, which was allowed as presented, no contest being made in the Probate Court over its correctness. The ward, however, appealed to the Circuit Court for the county of Washtenaw, setting up four grounds of complaint, which were in substance that the guardian had failed to keep money invested, had charged for excessive expenditures, and made over-claims for compensation, and had in general disregarded his duty, and thereby lost his right to compensation. No issues were framed in the Circuit Court, but the appel- lant demanded a jury. The cause was in advance of any trial submitted to an Auditor, Thomas Ninde, who formulated the account and reported it in accordance with the claim of the guardian. On the trial several questions were presented, all supposed to bear upon the grounds of appeal. By stipulation IN DOMESTIC RELATIONS. 335 the Auditor's report was made conclusive as to moneys received and expended, leaving the question open as to the reasonable- ness and correctness of the payments and charges. The Ending of the jury charged the guardian with nearly twice as much interest as he was shown by this report to have received, the difl'erence being probably intended to include in- terest which might have been earned by more careful invest- ments. The outlays for the ward and for trust purposes were allowed substantially as charged. His claim for compensation was left out almost entirely. The finding does not show the reasons for any of these results, and is silent concerning facts. As far as we can determine from a comparison of the report, which is a part of the record, and the finding, in the light of the bill of exceptions, we infer that while all of the guardian's money expenditures were approved, he was regarded by the jury as having lost all claim to compensation by reason of fault, and as having subjected himself to a charge for interest because he did not invest promptly and at the best rates. The exceptions taken on the trial all bear upon the matters involved in these results, and may mostly be included under a few heads. They present the inquiry whether there was culpa- bility in not accounting — whether the guardian could rightly expend more than the ward's income — whether he was not ex- travagant in allowing or making expenditures — whether he was culpable in the training of the ward — whether he was cul- pable in not making larger and more lucrative investments— whether he was entitled to furnish goods himself, or to charge for legal services, and whether neglect in any of the duties of his trust deprived him of a right to compensation. As these are all mixed up with each other in the record, and seem to have gone to the jury together, we shall not take up the excep- tions separately when they can be dealt with together. The conclusions at which we have arrived concerning the proper form of the litigation will make some questions unimportant. Bofore going into the specific subjects we may properly refer to some points made on the language used by the Court during the trial. There is some reason to think that the course taken on the trial created a degree of impatience in the trial Judge, which led him to rather sharp comments on facts and testi- 836 ILLtJSTEATIVE CASES mony, some of which we think had a necessary tendency to prejudice the jury. It is impossible for an appellate Court to appreciate all the surroundings of a trial, and we are bound to believe that the trial Judge would not intentionally make any remark, provoked or unprovoked by the methods of the trial, or by his view of the testimony, which would deprive a party of his rights. We think, however, that remarks were made which could not fail to favor the notion that the guardian was culpably lax in his duties, and that relatives and others had supported the ward by reason of his neglect. This, on any state of testimony, was going too far. It was also error to in- timate that proceedings in this case could properly be made to deter other guardians from doing as this guardian did. Every case must stand on its own merits. The effect of these sug- gestions was manifest from the verdict, which upon some points is not supported at all by proofs. To appreciate the other questions a brief statement will be required. The ward, when the guardian was appointed, was of tender years, and not enjoying any parent's care. The guardian made arrangements to have her cared for in the familj' of an uncle, and subsequently in that of an aunt. The estate which she was then presumably to enjoy was not productive or deter- mined. It was about nine years before any considerable sum came from it into the guardian's hands. In 1871 he received from it §1640, which with a few scattering payments made earlier barely repaid the previous outlays for her board, cloth- ing, and other necessaries. After this the guardian received in 1873 from the same estate between four and five thousand dol- lars, and this was all the funds which at the time of his ap- pointment, and for many years after, he had any right to expect would be received. The child, however, belonged by all her associations to intelligent and reputable people living in a com- fortable way, and was entitled if possible to corresponding nur- ture. In 1873, by reason of the death of a relative in New York, an additional fund was received of about $9000. The death occurred a little earlier, and there were necessary delays in procuring the money, though no litigation. In 1873 the en- tire funds from all sources were realized. IN DOMESTIC RELATIONS. 337 For his services in going to New York and obtaining the possession of the fund there the guardian, in addition to his outlays, charged $500 as extra compensation for his services as a lawyer in connection with his ordinary services as a guardian. Up to 1871 he charged f 25 a year for his services. After that year he claimed $300 a year. When the ward became of proper age — about 15 or 16 years — he purchased a piano for her. During a portion of her minority he was in mercantile business, and furnished goods himself instead of buying them. He also sent her to a board- ing-school in Canada. There was testimony introduced for the purpose of showing that he could have got board cheaper, and that she received more clothing and other supplies than some of the witnesses deemed necessary, and was not careful of them, and gave more or less away. So far as her boarding and schooling expenses are concerned, we do not think there was anything which ought to have gone to the jury to impugn them. The law is entirely well settled that the guardian's discretion in such matters stands on a very similar footing with a parent's, and that he is not compellable to prefer mere economy of cost to the welfare and comfort of his ward. He was justified in taking considerable pains to secure the care and oversight of a near relative, and in paying heed to her representations if he really regarded them as trust- worthy. There is nothing tending to show any want of good faith in this matter, and the jury should not have been allowed to treat it as if there had been. The choice of a school stands on a very similar footing. He was also quite right in doing what he could to prevent the danger of such alienation of feel- ing as might impel the ward to resort to deceit or sly conduct. The uncontradicted testimony shows that the young lady M-as somewhat wayward, and was also lacking in careful manage- ment and preservation of her clothing and personal articles. The affirmative proof on this subject and of the efforts of the guardian and Judge of Probate was not explained or contra- dicted by Mrs. Gulp, and there was an entire absence of any show of want of good faith. The presumption is not against the guardian, and in the present case the Auditor's report 22 838 ILLUSTRATIVE CASES was of itself prima facie evidence, apart from all other consid- erations. The claim that the outlay for clothing and other advances was excessive demands a little more attention. The expendi- tures for such purposes, where the articles are not out of pro- portion to the ward's social position, if made in good faith, and if not exceeding the ward's means, cannot usually be held improper, under the same discretion before referred to. j^side from their limitation on account of income, upon which we shall remark presently, a bona fide discretion cannot be properly reviewed, unless in such extreme cases as seldom can arise with any but large estates. Whilst it is just and necessary to require guardians to be careful, the law cannot and does not hold them responsible ex fost facto, merely because some more prudent or sagacious per- son might have done better. The majority of guardians, espe- cially of persons of moderate means, must be selected from friends or relatives who would take an interest in the child, and not upon mere financial and business principles. Guar- dians, on the average, cannot be expected to be thoroughly versed in the niceties of law, or in the knowledge of business. Honesty and kindness, without more than a very ordinary skill in money matters, are about all that can usually be expected. It would lead to no good result to require such liabilities as would deter ordinary men from accepting such trusts, and would not only tend to keep out of the account the most essential ele- ments of kindliness and sympathy, but would probably have an equal tendency to encourage sharpness in those who are treated as dealing at their peril. A guardian whose ward's estate is sufficient to furnish an income that will with economy maintain and educate her suit- ably, should not exceed it without adequate reason. But in this country, while it is prudent to obtain leave in advance, it is not necessary, if circumstances justify the excess. But the rule is also to be applied with some discretion. The guardian is justified by the authorities in looking not merely at present and actual income, but at future and probable resources. If the income is narrow, he should also look to the future welfare and standing of his ward, which may in his eyes, as in those IN DOMESTIC RELATIONS. 339 of a judicious parent, render it wise to secure desirable results by a sufficient outlay. In many, if not in most cases in this country, it is not possible to secure a regular and reliable rev- enue, which will not at times fail or be delayed. And when the infant's property is too small for'the income to furnish reas- onable nurture and support, the principal must necessarily be drawn upon; Upon the present record it is not within our province to pass upon the facts. But it is proper to mention that the expenses, apart from the guardian's charges, did not average per annum the ordinary legal interest upon the fund received in 1873, and still less on the whole fund received. Moreover, during the years when some of the largest outlays became necessary, par- ticularlj' the piano, the fund was all in perspective, and there was no income to speak of. During the fifteen years of guar- dianship there were less than four when it was possible to have had the principal fund earning interest at all. If this question should ever come up again for serious consideration, all of these matters would have to be looked at. As the jury have found in the guardian's favor on this point, we need not refer to it further. Upon the guardian's duty to invest, the findings on the record give us no definite data. We need only say, therefore, that he should be held for interest not actually received, only when his delay has been unreasonable. He may properly retain enough moneys to secure the means of making all necessary outlays, and he may wait until he can find safe investments in sums of reasonable amount. He should look not merely to the value of the security but to the promptness of the borrower, and need not accept without reference to this. For this reason public securities have always been held lawful. He cannot be cen- sured for honestly investing in these or on any legal interest where it is the best which he finds readily obtainable. He can- not be held for neglect beyond seven per cent. That is the rate imposed by law in the absence of contract. The cases in which compound interest may be charged to a delinquent we need not now discuss. The question of the guardian's compensation is not put in a satisfactory shape for full consideration. There are, however, 340 ILLITSTRATIVK CASES some things requiring attention. It seems to be snpposed there are some rules of law which on a given state of facts would fix it. But this is a mistake. The matter is one left to the consideration of the Court passing the accounts, and the amount has nothing to do with the account as an item of it at all, and cannot in anj case be considered by the jury. By the old law a guardian could get no compensation what- ever, but was merely protected in his legitimate expenditures. The modern doctrine, which is recognized by our statutes, re- gards him as entitled to such reasonable compensation as the circumstances warrant. Many elements may enter into this determination. The size and character of the estate, tbe amount and kind of services rendered, the duration of the trust, the duties in the given case as involving oversight of the person to a greater or less degree, may all have their weight. All we can do in a case so imperfectly presented as this is will be to refer, very generally, to the practice which seems most approved. If a guardian is a professional man and renders professional services, there is no absolute right to demand pay for them on the same footing as a stranger, and yet in some cases it might be entirely proper. If the estate is large, and if the guardian is appointed chiefly for business purposes, there is no special reason why he should not be paid as a business man. But, on the other hand, in small or moderate estates, or where the help- lessness of the ward and need of nurture and protection may be important elements in the choice, such a rule mio-ht be ruinous. Courts can never properly lose sight of the fact that primarily the duties are to be regarded as personal and honor- ary. Such offices are not to be given or assumed with a view to profit. The compensation must be proportioned not so much to the market or usual value of such services as to the ability of the ward to bear them. A guardian when he has assumed the trust must be as faithful in a small estate as in a large one, without reference to the compensation. He should be paid fairly if the estate will allow it to be done without dispropor- tion or injury. But if it will not, then he must be satisfied with a smaller reward. Upon the present record, if the ward had no estate beyond what was managed by the guardian we IN DOMESTIC UELATIONS. S41 should not regard his claims as made for $300 a year, and $500 extra fees, as reasonable. We have already hinted that this record is badly framed. It seems to have been assumed that the proceeding in the Probate Court was one which, when removed into the Circuit Court, would become substantially a common-law controversy. This is a great mistake, and the statute has been misconstrued. A guardian's accounting is an equitable and not a legal proceed- ing. It involves not merely the ordinary items of debit and credit, but also considerations as to the propriety of charges and investments and as to the allowance of compensation, with which a jury cannot meddle. The statute does not iu such cases contemplate a general trial or general verdict. It requires such matters of fact as are disputed to be submitted on proper issues to a jury: Comp. L. § 5220. But in such issues as the present, although the findings of the jury, on proper instruc- tions, may be more conclusive than those on a feigned issue, nevertheless they serve no other purpose than to determine definitely such sjiecific facts as, when found, will aid the Court in determining those questions which belong to the equitable discretion of the Court itself. Such questions of discretion in a case like this might include the responsibility of the guardian for failure to keep investments, the necessity or propriety of exceeding the income, the rate of compensation, and some others. We are not called on, and it would not be proper, to anticipate what issues ought to be framed in this case. E"one wha,tever were drawn up, and the jury proceeded under the rulings to do what belonged to the Court. No ground of appeal pointed out any objection to the securi- ties actually taken, definitely, if at all, and no question was made on the trial concerning them. But the final decree treated all the fund, with one or two exceptions, as uninvested. The guardian represents the ward in taking proper securities, and has a right to turn them over. We have no finding in this case to determine whether they were proper or not. The failure to account annually, as provided for by the laws of 1873, is not necessarily to be regarded as a cause of forfeit- ure. The law in terms only requires accounting on citation, but it undoubtedly contemplates that it should be done with- 342 ILLUSTRATIVE CASES out. But it has never been held that such a failure, unless leading to injury, should be visited with serious penalties. Some other matters were discussed which we need not dwell upon. The ease will have to go back, and definite issues should be made up before they are submitted again to be disposed of on the facts. There will be no occasion to disturb the Auditor's report, which is based on the figures of the accounting. The order of the Circuit Court must be reversed with costs, and the cause remanded for further action. The other Justices concurred. Davis 4). Harkness, 1 Gilm. 111. 173 ; Bondu. Lockwood, 33 111. 212. (c) As to the real estate of the ward. The guardian has control, while his authority lasts, of the ward's real estate, and should collect the rents and profits thereof and manage it in detail as a pru- dent business man would handle his own real estate. Willis v. Fox. Supreme Court of Wisconsin, 1870. 25 Wis. 646. CotE, J. The Circuit Court, having found that the guardian had not been guilty of any fraud in the management of the estate of his ward, dismissed the complaint upon the ground that that Court had no jurisdiction of the cause. The action was brought in the Circuit Court against Samuel If. Fox (since deceased), the guardian of Willis, for a general accounting, and for damages for waste committed or sutt'ered by the guardian of the ward's property. The complaint charged that the guardian had befen unfaithful in the performance of his trust, and had fraudulently used and appropriated the ward's prop- erty to his own private uses and purposes. The Court, having found that the allegations of fraud were not sustained by the evidence, dismissed the complaint, doubtless for the reason that IN DOMESTIC RELATIONS. 343 the guardian might be compelled to account before the Probate Court, which had full jurisdiction in the matter. The Probate Court undoubtedly had power, under our statutes, to cite the guardian to render an account of the property and estate of the ward in his hands : Chap. 112, R. S. But its powers in that respect are not exclusive. Courts of equity still have jurisdic- tion over guardians, and may control them and compel them to account : 2 Kent, 227 ; Williard's Eq. Jur. 621 ; but they should not exercise the jurisdiction except in extraordinary cases, or when some special reasons are shown to exist why the matter should be withdrawn from the Probate Court: Batchelder w. Batchelder, 20 Wis. 452 ; Freeland v. Dazey, 25 111. 294. Where no such reasons exist, and it appears that the Probate Court can aftbrd complete relief, there is no necessity for the Circuit Courts entertaining jurisdiction in such matters in the first instance. We fully agree with the Circuit Court that no case of fraud was made out against the guardian, unless it was fraud to commit or suffer waste of the ward's estate. We therefore should hold, were it not for the matters relating to waste, that no particular reason existed^ in this case why a COurt of Equity should supersede the jurisdiction of the Probate Court, and compel the guardian to account. There may be some doubt whether a Probate Court on an accounting would be author- ized to go into the question of the mismanagement of the ward's estate, and give damages against the guardian for waste. Perhaps the Probate Court could settle and determine all such questions, but the jurisdiction of the Circuit Court as a Court of' Equity is clear, and it would seem to be the most fit tribunal for the exercise of this authority. The guardian is but a trustee, and is amenable in that character for a violation of his trust to a Court of Equity, like other trustees, and can be removed and another appointed in his stead. For these reasons we think the Circuit Court should have retained jurisdiction of the cause, and should not only have required the guardian to account for his general management of the estate of his ward, the rents and profits thereof, but should also have com- pelled him to make good all damages caused the estate by waste committed or suffered by him. The evidence to our minds is entirely clear, that the guardian 344 ILLUSTRATIVK CASES has not cultivated the farm as a prudent farmer would do his own land, and in a good, husbandlike manner. There is too much reason for saying that he cultivated it solely with a view to his own profit ; sufiering the house to go to decay ; remov- ing the products from the farm to his own land, and using them there ; returning but little to his ward's farm ; permit- ting noxious weeds and thistles to grow upon it, which season- able care and diligence might have prevented ; and gene- rally managing the farm as no prudent farmer would do his own land ; by which means he has greatly impoverished the land and diminished the value of the estate of his ward. This depreciation in the value of the property caused by these acts of waste, committed or suiFered by the guardian, he should make good. Our statute requires every guardian to manage the estate of his ward frugally and without waste : Sec. 24, ch. 112; and this duty Courts of Equity would impose upon him in the absence of any such statutory provision. So that, whatever injury has been caused the estate by this bad hus- bandry and improper cultivation, the guardian is justly charge- able with, and should make good in his account. It constitutes waste within the meaning of the law : 1 Washb. on Real Prop., chap. 5, § 4, " Of Waste." The guardian shouhi likwise be required to account for and pay a fair rental for the farm upon the principles stated by the referee in his report, " No. 2." We see no valid objection to allowing the guardian the various items mentioned in folios 137, 138 of the printed case, in the matter of Paksons; and for repairs, breaking, digging stone, etc. They seem to be proper charges against the estate of the ward. It appears from the evidence that the guardian has from time to time rendered accounts to the Probate Court of his guar- dianship, charging himself with certain amounts as rent of the farm, and crediting himself with the various items paid out. These accounts were allowed by the Probate Court. There is nothing in the action of the Probate Court upon these accounts which is final and conclusive upon the matters embraced within them. The allowance of the accounts, although a judicial act, was not in the nature of a final adjudication between the par- ties. The accounts were rendered by the guardian, and acted IN DOMESTIC EELATIONS. 345 upon by the Probate Court during the minority of the ward, and ex parte. And the most that can be claimed from the action of the Probate Court upon them is that the accounts as allowed are presumed to be correct until the contrary ap- pears. But they are only prima facie correct, and wherever they are erroneous the ward may have them corrected. They are only partial accounts, and do not bind him in any particu- lar when he is able to show they are erroneous: Yerger's Appeal, 10 Casey, 173; Band v. Lockwood, 33 111. 214; Clark V. Cress, 20 Iowa, 50 ; and Picat v. Biddle, adm'r, 35 Mo. 29. If it appears that the guardian in his accounts did not charge himself with what the evidence shows to be a fair rental for the farm, the accounts should be corrected in that particular. And, generally, wherever the ward is able to show any errors or over- charges in these accounts, he is entitled to have them corrected. By THE Court. Tbejudgnient of the Circuit Court is reversed, and the cause remanded for further proceedings in accordance with the above opinion. Sch. s. 350 ; 2 Kent, 228 ; 1 Wash. c. S, s. 4 ; Genet v. Tallmadge, 1 John. Chan. 559 ; Stoughton's Appeal, 88 Pa. St. 198 ; Clark v. Buriiside, 15 111. 62 ; Spelman v. Terry, 74 N. Y. 448. Sale of the ward's real estate. Chancery Courts allowed the sale of the ward's real estate when debts were to be paid, encumbrances to be discharged, and expenses of a similar nature to be met, and so modern statutes authorize the sale of the ward's real estate. Strong v. Moe. Supreme Court of Massachusetts, 1864. 8 Allen, 125. Appeal by the administrator of the estate of William "W. Moe from a decree of the Judge of Probate, allowing in part 346 ILLUSTRATIVE CASES the account of Ira Moe as guardian of said William. "W. Moe, who was his son. In the account as presented, the guardian charged himself with the proceeds of real estate sold, $513.07, and other items sufficient to make up the whole amount re- ceived by him to $862.97 ; and he asked to be allowed for the support of the ward the sum, including interest, of $1351.97, and other items sufficient to make up the whole amount for which he asked allowance to $1462.02. The Judge of Probate decreed that the sura of $599.05 be deducted from the sura for which the guardian asked to be allowed, thus leaving the account of receipts and disbursements as allowed to stand even. It was agreed in this Court that the guardian was appointed in June, 1849, and that the ward was then seised of an interest in the real estate which was afterwards sold ; that in April, 1850, the guardian prayed for and obtained leave to sell the real estate on the ground that it would be for the benefit of the ward that it should be sold and the proceeds put out at interest or invested in some productive stock ; that he accordingly sold the same, and in June, 1850, received therefor the sum of $513.07 ; that he also received as the proceeds of personal estate the sum of $126.17 ; that at the time of his appointment as guardian the ward was nearly fifteen years old, and was interested in a small amount of other real estate besides that referred to above ; that the ward has since died in New York, and the appellant is the administrator of his estate in this Comraouwealth ; that the guardian has never settled any account with his ward or paid over or delivered the estate and oflects remaining in his hands to the person lawfully entitled thereto, except so far as the same may be considered to have been done by the account ren- dered as above ; and that he did nothing further in the Probate Court till 1861, after he had been cited to render his account, and a suit had been commenced upon his bond, A deposition of the guardian was offered and excluded as incompetent ; it being agreed that, if competent, it might be taken as a part of the evidence in the case. Its contents, how- ever, became immaterial by the decision. It also appeared that the guardian was in erabai-rassed circumstances and in debt, and had no means of supporting his family but by his labor from day to day. IN DOMESTIC RELATIONS. 347 Upon these facts the case was reserved by Hoar, J., for the determination of the whole Court. ' B. W. Whitney, for the appellant. U. Pearson, for appellee. Dewey, J. The course of proceedings on the part of the guardian does not justify the application of the avails of the real estate of his ward, sold by virtue of the license obtained under the provisions of the Rev. St. c. 72, § 2, towards his sup- port and maintenance, unless it be made clearly to appear that subsequently to the granting of the license to sell and invest the proceeds, the same became necessary for his support, and that the ward was unable to support himself in a suitable and proper manner without expending such proceeds. If the situa- tion of the ward and the want of pecuniary ability on the part of the father to furnish him with adequate support had required the real estate of the ward to be sold for that purpose, ample provision was made for such a case by the Rev. St. c. 72, § 1. The fact that the application was made for leave to sell the estate of the ward for the purpose of investing the proceeds negaitives the idea that there was then any present necessity for using the avails for his support. The age of the ward and his apparent ability to earn his own support corroborate this view. In the opinion of the Court upon the evidence in the present case, no reason is shown for applying the proceeds of the sale of the land of the ward in discharge of any claim of his father for his board, clothing, custody, and care; and the sum realized from the sale is not to be diminished by the allowance of such claims; But from the want of pecuniary ability of the father, an allowance to a reasonable and proper extent for support and maintenance, having regard to the amount of personal property of the ward, and his income from real estate, and also the interest or income arising from the sum held for investment may properly be made for the guar- dian, though not beyond the amount received from these sources. We have not found it necessary to consider the question raised as to the competency of the guardian as a witness in 348 ILLUSTRATIVE CASES this ease, the ward having deceased, inasmuch as the facts are not changed by the proposed testimony. The decree of the Judge of Probate is reversed, so far as he has allowed the guardian for support, etc., any sums beyond , the amount of personal property of the ward, and the income of the avails of the real estate sold, and other real estate which he may have owned. The sum of $513.07, which was realized from the sale of land, is not to be extinguished by any charges of the guardian, but a further deduction to that extent is to be made from the amount allowed to the guardian, and he is to be charged as now holding that sum, which is to be accounted for with the administrator of his ward. Sch. s. 356, 360, 361 ; Probate Code, 1889, c. 8 & 9, s. 156, 164 ; Hard- ing V. Lamed, i Allen, 426 ; State v. Steele, 21 Ind. 207 ; Pope v. Jackson, 11 Pick. 113. A ward's interest, legal or equitable, can only be divested by a public sale under proper judicial sanction. Wells v. Chafpin. Supreme Court of Georgia, 1878. 60 Ga. 677. "Warner, C. J. This was an action of ejectment brought by the plaintiffs against the defendant to recover two-thirds of the premises sued for, the same being a house and lot in the city of Columbus. The questions involved in the case were sub- mitted to the decision of the Court without the intervention of a jury. The Court decided in favor of the plaintiffs, and the defendant excepted. 1. The defendant claimed title to the property in dispute as a purchaser at a guardian's sale, but it appears that no order had been entered on the minutes of the Court of ordinary grant- ing leave to the guardian to sell it, as required by law. The property was sold on the first Tuesday in August, 1869. The defendant offered in evidence the minutes of the Court of ordi- IN DOMESTIC EELATIONS. 849 nary for April, 1874, from which it appeared that, on the appli- cation of "Wells, the purchaser and present defendant, a nunc pro tunc order had been entered thereon granting leave to the guardian to sell the property, who died in 1873 or early in 1874. This order of the ordinary granting leave to the guardian to sell the property, which purported to have been granted in May, 1869, was not found in the ordinary's oflice, but among the papers of Thompson, the guardian, after his death ; and the question is. Was the sale good as against the plaintiffs, who were minors, without an order of the ordinary granting leave to sell being entered on the minutes of that Court ? and, if not, did the entry of the order mine pro tunc, at the April term, 1874, cure that defect in the title and make it valid ? 1. When a purchaser of real estate claims, title thereto by virtue of a guardian's sale, he must show an order of the ordi- nary granting to the guardian leave to sell it : Code, §§ 1828, 2559. In this case, it was affirmatively shown that no order had been entered on the minutes of the Court of ordinary grant- ing leave to the guardian to sell the premises in dispute prior to the sale thereof. 2. But it is claimed that the paper which was found amongst the papers of the guardian after his death, purporting to be an order signed by the ordinary for the sale of the property, and which was entered nunc pro tunc at the April term of the Court, 1874, afforded plenary evidence that leave to sell the property had been granted by the ordinary, according to law, before the property was sold on the first Tuesday in August, 1869. It appears from the evidence in the record, that at the February term of the Court, 1868, an order was passed by the ordinary appointing Thompson guardian of the plaintiff's, when he shall give bond in the sum of $2500, with A. T. Calhoun security, which was not done, so far as the redord shows. At the June term of the Court, 1869, an order was passed by the ordinary in which it is recited that Thompson had been appointed guar- dian of the plaintiffs at the February term, 1868, "and whereas the condition of said appointment was that said Thompson should give bond in the sum of $2500, with A. T. Calhoun se- curity, which bond has not been given. And now at this term of the Court comes the said Thompson and gives bond in the 350 ILLUSTRATIVE CASES sum of $2500, with J. W. Eyan and W. M. Murphy as securi- ties, and his letters of guardianship have issued to him accord- ingly." Thus it will be seen that at the time the nunc pro tunc order for leave to sell the property purports to have been granted in May, 1869, Thompson, the guardian, was not qualified to act in that capacity, he not having given bond and security as re- quired by law until June, 1869. The probable explanation of that paper purporting to be an order of the ordinary is (the or- dinary being dead), that he drew it up and signed it at the May term, 1869, preparatory to entering it on the minntes, ex- pecting that the guardian would file his bond at that term, but, as he did not do so, the order, for that reason, was not entered on the minutes of the Court. How that may have been we do not know, but the facts all tend to show that the property of the plaintiffs, who were minors, was not sold by their guardian in accordance with the laws of the land, and there was no error in the decision of the Court in view of the evidence contained in the record. Let thejudgment of the Court below be affirmed. ■Williamson v. Morton, 38 Me. 47 ; Owens v. Cowan, 7 B. Mon. 152 ; Shouse u. Drennan, 41 Mo. 284 ; Blackman v. Brennan, 22 Yes. 611. 6. The guardian's bond, inventory, and accounts. The bond, inventory, and accounts are regulated by the statutes of the various Commonwealths; but a bond substantially in compliance with the statutes will be good. Probate Court v. Strong. Supreme Court of Vermont, 1855. 27 Vt. 202. Bennett, J. This is an action upon a guardian's bond ; and as to "Webster, the principal, there was a non est inventus re- turned upon the writ, so that the action proceeds against Strong alone. IN DOMESTIC RELATIONS. 351 It is claimed that the declaration is insufficient, and one reason assigned is, that the bond in question is not a bond to the Probate Court. If not, the declaration is bad. It is given to Joel Allen, Judge of Probate for the district of Grand Isle, and the solvendum, is to the said Judge, or his successor in said office. We think the intention cannot be mistaken, and that this was designed to be an official bond, and not a bond to Judge Allen, as an individual. The subject-matter of the bond re- lates to the Court of Probate, and to what is purely of an offi- cial character, and the solvendum is to the said Judge and his successors. This shows clearly the intention to make it an official bond, and though inartiiicially drawn, still in legal effect it becomes a bond to the Probate Court. See 1 Wils, 184 ; The Master, Fellows and Scholars of S. & S. College v. Davenport. In that case the bond was to Doctor Craven, fellows, and schol- ars, etc., solvendum to the master, fellows, and scholars. It was claimed that this was a bond to Doctor Craven, the master, in- dividually ; but the Court said, that though the bond was to Doctor Craven, etc., yet the solvendum to the master ^ fellows, and scholars made it a bond to them, in their corporate capacity. It is said, the bond is void, the conditions not being according to the requirements of the statute. But we think there is no good foundation for this objection. The conditions do not re- quire anything illegal, or in fact anything which the statute does not authorize, and if they require less, this would be a poor reason why the obligors should not be bound to the ex- tent of the conditions. The first provision is, that the guardian shall well, truly, and faithfully execute and dip charge the office of guardian in all parts thereof, according to the rules and directions of the law in such case made and provided. It would seem that as the law makes it the duty of the guardian to return a true inven- tory of all the property of the ward to the Court of Probate, within a given time, as well as to manage and dispose of all such property according to law, and for the best interest of the wards, that a failure to comply with those duties, in either particular, would be a breach of this provision in the condition of the bond. The condition of the bond then reouires that the 352 ILLUSTRATIVE CASES guardian shall account for the sales of all such real estate as he maj have license from the Probate Court to sell, and to render a true account of his guardianship when thereunto required, and pay over what shall be found in his hands upon the settle- ment of his account in the probate office, when the vpards shall hecome of age, or at such time as the Probate Court shall order. It is clear that this bond obliges the guardian to account for all the property belonging to his wards, and pay over the same as he shall be required by law, or the order of the Judge of Pro- bate. Without this he cannot discharge the duties of the office of guardian in all parts thereof, according to the rules and direction of the law. No question seems to have been raised in the county Court, or at least none is saved by this bill of exceptions in relation to the assessment of damages and none is raised in argument. We think the declaration sufficient, and the judgment of the county Court is affirmed. Sch. s. 366, 372 ; Minn. Probate Code, s. 137, 138, 139, 151, 166 ; Mc- Tadden v. Hewett, 78 Me. 24 ; State v. Britten, 102 Ind. 214. If a special bond is required in the sale of real estate, and there are any irregularities in the sale, the sureties on the special bond will be held to account, and not those on the general bond. Williams v. Morton. Supreme Court of Maine, 1854. 38 Me. 47. Tenney, J. In the sale of real estate under a license from the Court authorized to grant it, " the requisites provided by statute, of bonds to account, of a previous oath, of advertise- ments, and of a public sale, are important to the interest of all concerned in the estate to be conveyed, as heirs-at-law, creditors, and others." IN DOMESTIC RELATIONS. 853 " The rights of persons thus connected with the estate con- veyed, and whose interests are afl'eoted by the authority to sell, are regarded by these provisions ; and they, and any claiming under them, are not concluded by the exercise of the authority and license to sell in derogation of their rights, unless every essential requisite and direction of law has been complied with :" Knox et al. v. Jenks, 7 Mass. 488. In an attempted sale, similar to the one now under considera- tion, of Williams v. Reed and Trustee, 5 Pick. 480, where there was an omission to give a bond and take the oath after the license to make the sale, the Court say : " There being no bond and no oath, the sale is void, or at least voidable, so that the parties to it are at liberty to vacate it and consider it annulled." The fee of the land remains in the wards, it not having passed from them by a sale authorized by the statute. In Moody v. Moody, 2 Fairf. 247, a sale of real estate by an administrator was held void as against heirs, by reason of his neglect to give the bond required by law. If the title of the heirs has not passed from them to the rail- road company, and vested in the latter, the money has been paid without consideration, and it can be recovered back, of the guardian, upon his covenants in the deed, or in an action for money had and received by him for their benefit. But if the guardian and the railroad company were disposed to treat the sale as valid, and the former had failed to account in any manner for the money received as the consideration of the deed, are the defendants liable upon the bond in suit for the omission ? Upon a guardian's appointment, he shall give bond with suf- ficient surety or sureties conditioned for the faithful discharge of his trust : To render a true and perfect inventory of the es- tate, etc., of his wards ; to render a just and true account of his guardianship as often as and whenever by law required ; at the expiration of his trust to pay and deliver over all moneys, etc., on a final and just settlement of his accounts, etc. : R. 8. c. 110, §15. By the statute of Massachusetts, c. 38, § 6, vol. i. p. 136, of the statutes, guardians are required to give bond to the Judge of Probate in a reasonable sum, with sufficient sureties, for the 23 354 ILLUSTRATIVE CASES faithful discharge of the trust reposed in them, and more espe- cially for the rendering a just and true account of their guar- dianship when and so often as they shall be thereunto required. This is substantially the same as the requirement in the B,. S. referred to, excepting the last condition in the latter, which is immaterial for the present inquiry. In the license provided for the sale of the real estate of per- sons under guardianship, that the avails thereof may be put out, and secured to them on interest, a bond is required of the person licensed, with surety or sureties, conditioned for the ob- servance of the rules and directions: of law in the sale of real estate by executors, etc., and to account for and make payment of the proceeds agreeably to the rules of law : Mass. Statutes of 1783, c. 32, § 5, p. 121. This provision is similar to that con- tained in E. S. of this State, c. 112, § 5. In Lyman v. Conkey, 1 Met. 317, the Court in Massachusetts have given a construction to the provisions of the statutes of 1788, c. 38, § 6, and of c. 32, § 5, and they say : " Whenever the object is to dispose of real estate of the ward, to raise a fund to stand in lieu of the real estate for the future use of the ward, or of any other person, who would have been entitled to the real estate, it is deemed a separate, special trust, for the due execution of which a separate security is required as a condition precedent to the validity of the sale ; and, therefore, the Court are of the opinion that the accounting for the proceeds of the sale, made under such special license to sell for the benefit of the ward, is not one of the general duties of guardianship for the performance of which the sureties on the original guardian- ship bond are responsible." It could not have been designed by the Legislature that a bond given for the faithful discharge of the duties of guardian, which by his letters of guardianship he is bound to perform, should be the security for the observance of the provisions, in a sale of real estate, and the proper application of the proceeds, when the sale was under the authority of a special license only, and a special bond is required, that the duties to be done under that license, as the law prescribes, shall be faithfully performed. The proceedings under the license, as required by the statute, are not, strictly speaking, guardianship duties; but, as matter IN DOMESTIC RELATIONS. 355 of convemence, the change of the real estate of the ward into money is, to be done by hira who had the charge of the former, and who is to see that the latter is properly secured upon inter- est. It is very clear that a breach of the special bond, under a license, does not constitute a breach of the general bond c)f guardianship ; and consequently an omission to give the special bond violates none of the conditions in the other. It is contended that the deed of the guardian is valid as a release under R. S. c. 81, § 7, and that the money received of the corporation may be treated as the consideration therefor. The land attempted to be sold had upon it two dwelling- houses, and by § 5 of the chapter referred to, houses cannot be taken without consent of the owner. The provision in the 7th section cannot be construed to authorize a guardian to agree with the corporation to permit it to take dwelling-houses and to settle the damages therefor ; as this authority extends only to those cases where the corporation shall take any real estate as aforesaid of any minor, etc., referring clearly to § 2 of the same chapter, which gives the power to take real estate with the re- striction contained in § 5. The railroad company, however, in this case must be under- stood to have intended what these acts clearly indicate. The case finds that the corporation made the offer to -purchase the estate. The consideration of a transfer of title was paid, there being no fact reported showing that anything less was intended. The license was to sell real estate, and the deed was appropriate for an absolute conveyance. The real estate being stiU the property of the minors, in an action upon the covenants in the guardian's deed, that he had pursued the steps to make the deed effectual, a defence that the license was granted, without proof of any other fact, could not avail. The provisions in the statutes of 1843, c. 1, cannot be so con- strued as to give the plaintiff the right to maintain the action. It is, again, insisted that as one of the conditions of the bond in suit is to render an account as often as required by the Judge, and as he omitted to do so on being cited for that purpose, that condition, has been broken. The case does not find that the wards were possessed of any property excepting the real estate 356 ILLUSTRATIVE CASES attempted to be sold, which was duly and seasonably inven- toried. No delinquency was imputable, by reason of having settled no accounts, unless it be for the omission in reference to the avails of the real estate supposed to have been sold. The bond required by law upon the license to sell was conditioned that he should account for the proceeds of the sale according to law. The law required that the proceeds of the sale should be put out at interest, and when this was done, he had fulfilled his whole duty. It not appearing that any property was in his hands for which he was bound to render an account, the omis- sion to render such, when cited, was not a breach of the general bond of guardianship; Hudson v. Martin, 34 Maine, 339, Plaintifl" nonsuit. Sch. 8.369 ; Brooks v. Brooks, 11 Cush. 22; Potter v. State, 23 Ind. 607 ; Fay v. Taylor, 11 Met. 529 ; Madison County v. Johnston, 51 la. 152. 7. Rights and liabilities of the ward. The rights and liabilities of a ward are those of a cestui que trust. He cannot sue his guardian during guardianship. His proper course is to have him re- moved and sue him on his official bond. McLane v. Curban. Supreme Court 'of Massachusetts, 1882. 133 Mass. 531, Devens, J. The plaintiff was appointed the guardian of the defendant, and, so far as appears by the report of the Auditor upon which the ruling of the Superior Court was based, was so at the commencement of the action, and still is such guardian. The action is upon an alleged contract for necessaries. That an action at common law cannot be maintained between a guardian and a ward while that relation exists, is clear. The character of that relation, the capacity in which the guardian acts, the duty to the ward's property (even if a guardian ad litem may IN DOMESTIC RELATIONS. 357 be appointed where he is interested), forbid that they should occupy the distinctly adverse position of suitors at common law, especially as to transactions occurring since the guardian- ship commenced : Brown v. Howe, 9 Gray, 84 ; Mason v. Mason, 19 Pick. 506. But even if the guardianship has come to an end, until at least an account has been settled in the Probate Court,, and it has there been found that something is due from the ward, no such action can be maintained. The accounts between them are to be adjusted with all the facilities there ofiered for con- venient settlement, and they are each to be held to the respon- sibilities growing out of the relation in which they have been placed by the action of that tribunal. It is for their mutual protection that this should be so, and that, before any rights are sought to be enforced elsewhere, the extent of such rights should be there determined. No action can be brought against a guardian by his late ward to charge him in an action for money had and received. It is necessary for the protection of the guardian to hold that the remedy of the ward is by proper proceedings in the Probate Court, and thereafter by action on the probate bond : Brooks v. Brooks, 11 Cush. 18 ; Conant v. Kendall, 21 Pick. 36. It is certainly as necessary that any c-laims which the guardian may have against the ward should be determined there. Where a guardian therefore had incurred what were claimed to be necessary expenses on account of a minor ward, it was held that an action at law could not be maintained by him against the ward, after the guardianship had ceased, and that his claim must be made on the settlement of an account in the Probate Court: Hapgood v. Wesson, 7 Pick. 47. It is sought to distinguish this case, upon the ground that here it is found that no property of the ward ever came to the hands of the guardian. We do not understand this to be the finding of the Auditor, but the fact is not important in our view. It is the relation in which the parties have stood to each other, rather than the fact that property has or has not come to the hands of the guardian, that renders it inconvenient and improper that either should undertake to sue the other at .common law. In Smith v. Philbrick, 2 N. H. 395, the guar- 358 ILLUSTRATIVE CASES dianship had come to an end, and it distinctly appeared that no property of the ward had ever come into the possession of the guardian ; yet it was decided that until" an account had heea settled by the guardian in the Probate Court, and a balance had been there found due him, no action could be maintained. The guardian in the present case presented the same account here sued to the Probate Court, and it was disallowed. If errone- ously so, an ample remedy was provided, but it is not to be found in this suit. In this aspect of the case it would be snperflaous to consider whether any promise could have been implied, upon the facts reported by the Auditor, as against the defendantj to pay the plaintiff's demand. Judgment affirmed. Sch. s. 381 ; Obrien v. Strang, 42 la. 643 ; Brooks v. Brooks, 11 Cush. 18 ; Eobertson v. Kobertson, 1 Root (Conn.), 51 ; Coleman v. Wills, 46 Mo. 236. An action will not lie against a guardian for the tort of his ward. Gaekigus v. Ellis. Supreme Court of Indiana, 1883. 95 Ind. 598. Black, C. The appellees sued the appellant, Milton Garri- gus, guardian of Milton L. Garrigus. The complaint alleged that the plaintiffs were the owners of a certain mowing machine of the value of |20, which, by permission of one Stover, was stored for protection in his barn, in Howard County ; that on, etc., the defendant's said ward wilfully, maliciously and mis- chievously broke, damaged, and destroyed said machine, and hauled the fragments away, and sold them, and converted the proceeds to his own use, all without any authority from the plaintiffs, to their damage in the sum of $20, which sum was due and unpaid; that demand of payment bad been made of IN DOMESTIC RELATIONS. 359 said ward and of said guardian, but that they, and each of them, refused, etc. It was alleged that said guardian had in his hands a large amount of property and money belonging to said ward, out of which said sum might be paid after making ample provision for the support of said ward. Judgment was de- manded for said sum against Milton L. Garrigus, that the same be ordered paid by his said guardian, Milton Garrigus, out of the funds in his hands belonging to his said ward's estate. The appellant demurred to the complaint, assigning as grounds of demurrer want of sufficient facts, and defects of parties defendants, in that said ward, Milton L. Garrigus, was a necessary party defendant. The demurrer was overruled, and, the appellant having refused to answer, judgment was rendered against him. The appellant's ward was liable to an action for his tort de- scribed in the complaint, but no cause of action against the appellant was shown. The action should have been brought against the ward alone. It then would have been the duty of the guardian to appear for and defend, or cause to be defended, such suit against the ward ; and if he should have failed to do so, the Court would have appointed a guardian ad litem to de- fend the' interests of the minor :.E.. S. 1881, sections 2520, 2521, 258 ; Hughes v. Sellers, 34 Ind. 337. In such case the judgment would be an ordinary personal judgment against the minor. The guardian should be sued only where he is personally liable, when it is expected to obtain against him a personal judgment : Glark v. Casler, 1 Ind. 243 ; Stevenson v. Bruce, 10 Id. 397 ; Gwaltney v. Cannon, 31 Id. 227. The judgment should be reversed. Pee Curiam. It is ordered, upon the foregoing opinion, that the judgment be reversed, at the costs of the appellees, and the cause is remanded, with instructions to sustain the demurrer to the complaint. Hughes 0. Sellers, 34 Ind. 337. 360 ILLUSTRATIVE CASES IV. INFANCY. 1. GENERAL DISABILITY OF INFANTS. In this country the law generally regards as infants, males under the age of 21, and females under the age of 18 years; and they arrive at their majority on the day preceding ^.their 21st and 18th birthday, respectively. The contradts of infants are valid, voidable, or void. Baedwell v. Pareington. Supreme Judicial Court of Massachusetts, 1871. 107 Mass. 425. Ames, J. A person who was born on the eighth day of September, 1852, would become of the full age of twenty-one years if he should live to the seventh day of that month in 1873. He would be entitled to be considered as having attained his majority at the earliest minute of that day. It was not in the power of the overseers of the poor, therefore, so to bind out the minor in this case as an apprentice, that he could lawfully be held to service as such for any appreciable portion of that day. If the indenture necessarily implies an intent on their part to do so, we should be obliged to say that, in so doing, they exceeded the authority given them by statute, and that the act of binding out the minor was void and of no effect. It has been well said that the authority given to overseers of the poor to interfere in the domestic relations of families, and to IN DOMESTIC RELATIONS. 361 take children from their parents to be bound out as servants to strangers, is a high and arbitrary, if not dangerous, power, in favor of which nothing should be presumed, and everything required for its lawful exercise must be shown affirmatively. "We think, however, that the obvious intent in this case was only to bind the apprentice for the term of his minority. It was not necessary to fix the exact date of its termination, and, in the absence of any imputation of bad faith, a slight, acci- dental, and perfectly natural mistake as to the exact date ought not to vitiate the indenture, but will leave it in the same situa- tion, and with the same legal effect, as if no attempt had been made to name the day of the mouth when the apprentice would become of full age. The Court therefore ruled cori-ectly (so far as this objection is concerned) in holding the indenture to be an efficient instrument to bind the apprentice during his minority to the plaintiff. The overseers, in making the indenture, professed to be acting in an official capacity, and in discharge of a public duty. The Court was right in ruling that the recital in the instrument was primd facie evidence that Samuel Hayden was a poor person lawfully settled in Shelburne, and actually chargeable thereto ; and it is immaterial that the instrument was one to which the defendant was not a party : Reidell v. Morse, 19 Pick. 358, 360. It was not conclusive, neither did it shift the burden of proof. And it was discretionary with the Court, and therefore afibrded no ground of exception, that after hearing the defendant's evidence upon this point the plaintiff was per- mitted to put in new evidence, by way'of rebuttal, of a kind which might have been offered in chief and as part of his original case. And upon the question' whether on the fifth day of April, 1861, Hayden was chargeable upon the town, as it was admitted that he had been for almost a year before that date, the jury were instructed that if, when he removed to another town, the apprentice and two other children of the family remained, with their father's consent, a charge upon the town, the apprentice until five days before and the other two until two months after the making of the indenture, they ought to find that on that day the father was chargeable upon the town. Relief furnished by the town with his consent to some 362 ILLUSTRATIVE CASES of hia minor children, he not being able to support them him- self, is relief to him ; and the fact that he had undertaken the support of himself and another part of the family, dependent upon him, would not alter his legal position. He would still be a person receiving aid and support from the public under the provisions of the statutes for the maintenance of the poor : Wilson V. Brooks, 14 Pick. 341 ; Taunton v. Middleborough, 12 Met. 35. It is true that the testimony of Fisk is to the effect that on the removal of Hayden he ceased to be a charge on the town ; but upon this point the whole of his testimony taken together is, that, although Hayden personally ceased to be a charge, a portion of his family still continued to receive support from the town ; and the jury must have found, under the instructions, that this was with his consent. With regard to the defendant's offer to prove that he had paid the boy for his labor, we think that at that stage of the case it was rightfully rejected. It was not offered in connec- tion, as we understand the report, with any evidence tending to show that the plaintiff had abandoned any of his rights, or had been wanting in due and reasonable exertion and diligence to reclaim the apprentice. If he had not lost his right to the services of the apprentice by any fault of his own, the fact that a stranger, who had had the benefit of them, had paid a party who had no right to the payment, would be immaterial. There might be circumstances from which the jury might very prop- erly infer that the plaintiff" had abandoned the right to hold the apprentice. The propriety of such an inference would depend on what the plaintiff knew, or had the means on reason- able inquiry of knowing, as to where the apprentice was and what he was doing. If the plaintiff knowingly suffered the apprentice to make and perform contracts for service, or if the plaintiff', knowing where he could be found, made no efforts, or neglected opportunities, to reclaim him and hold him to his service, he could not maintain his action, — in other words, his relinquishment of all right to hold the apprentice under the indenture could be proved by circumstantial evidence. Mere payment by the defendant to the apprentice without the knowl- edge or default of the plaintiff would not affect the question. IN DOMESTIC RELATIONS. 363 The result is, that we find no error in the rulings of the pre- siding Judge ; and therefore the Exceptions are overruled. Cogel t!. Kaph, 24 Minn. 194. 2. ACTS OF INFANTS VALID. Infants may make valid contracts for necessaries. Gay v. Ballou. Supreme Court of New York, 1830. 4 "Wend. 403. Sutherland, J. A husband is not bound to maintain his wife's child by a former husband. The statute of 43d Eliz. dh. 2, sect. 7, of which ours is a transcript (1 R. L. 286, sect. 21), extends only to natural relations : Tubb v. Harrison, 4 T. E. 118 ; Cooper w. Martin, 4 East, 76 ; and the authorities cited in those cases. The plaintiff, therefore^ was under no obligation, either legal or moral, to support the defendant. The referees, who stand in the place of the jury, have found that the articles furnished by the plaintiff were necessaries, and that the defendant promised to pay for them. The evidence supports that finding. All the charges are for boarding, lodging, schooling, clothing, and physicians' bills ; and there is no evidence or allegation that they were unsuitable in any respect to the condition of the defendant : Bingham on Infancy, 86, 7 ; Comyn on Contr. 154, 5 ; 2 Kent's Comm, 195. The report was not questioned on that ground upon the argument ; but it was contended that there was no evidence of an express promise on the part of the defendant to pay, and that no promise can be implied. • The evidence of the defendant's promise is certainly as strong 364 ILLUSTRATIVE CASES as it was in the case of Cooper v. Martin, 4 East, 76. In that case, the only evidence was, that the defendant, in conversation with his sister (who mentioned her own intention of paying for her board), said that he should have paid the plaintitf but for his elder brother, who advised him not to do so. It was not denied that this was sufficient evidence of a promise, but the argument in that case was, that the plaintiff was bound to maintain the defendant, and that the defendant's promise, therefore, was without consideration. But it was held by all the Judges that there was a good consideration, and a sufficient promise. In the case at bar, two witnesses (Mitchell and Storm) testified that they had heard the defendant declare that he was willing to settle with Mr. Gay, and pay him what he owed him, if any thing. Another witness (Loomis) testified that he heard the defendant say that plaintiff had let him have some articles of clothing, but he thought he had charged him for more than he had had. The defendant and the witness exam- ined the plaintiff's account (which was substantially the sariie as that exhibited on the trial) ; and the defendant said he did not know but it was right, but should like to have advice and consider, etc. He made no objection to any item. An express promise, I apprehend, need not be proved, in order to render an infant liable for necessaries. "Where the plaintift''s demand is not for necessaries, and the issue is upon a new promise after the defendant came of age, an express promise must be proved ; because, there never having been any legal obligation on the part of the defendant, he cannot be legally liable without such promise. A moral obligation is sufficient to support an actual promise, but will not raise or support an implied one: Thrupp v. Fielder, 2 Esp. R. 628; 3 Id. 160 ; 5 Id. 102 ; Harmer v. Killings, 2 Evans' Pothier, 123, numb. 15 ; 11 Mass. Rep. 147 ; 1 Pickering, 202 ; 4 Id. 28 ; Peake's Ev. 260. But an infant is liable for necessaries, in the same manner as an adult is liable ; and his contract or promise to pay is to be established in the same manner. If an infant direct a tailor to make him a suit of clothes, an express promise to pay for them is not necessary in order to make him respon- sible ; or if he be accommodated with board and lodging suita- ble to his condition, while pursuing his academical or profes- IN DOMESTIC RELATIONS. 365 sional studies, he is bound to pay what they are reasonably worth, though no actual promise to pay can be proved. The promise is implied, and, being for necessaries, it is legal and binding. The admissions of the defendant in this case afford sufficient evidence that the items of the plaintiff's account were paid or furnished at the defendant's request ; and being suitable and necessary for a person in his condition, the law implies a prom- ise on his part to pay for them. In Wailing v. Toll, 9 Johns. E. 141, an infant was sued by a physician for medicine and attendance. The only evidence on the part of the plaintiff was, the admission of the defendant that the items charged were correct ; but she at the same time said she had not employed the plaintiff, and that she was under the age of 21 years. It was held that the plaintiff" could not recover upon this evidence. The Court remarked, that " for any thing that appeared, the defendant was living with her father, and the medicine and attendance were furnished at his request." Such they held was the reasonable intendment ; and an infant who lives with and is maintained by her father cannot bind herself for necessaries. The confessions of the infant, they ob- serve, when all taken together, showed that she was not respon- sible, admitting the medicine had been furnished, without something more being proved by the plaintiff. If it had ap- peared in that case that the defendant had no parent, and that the medicine and attendance were furnished on her credit alone, I apprehend the plaintiff' would have recovered. Motion to set aside report of referees denied. Strong v. Footb. . Supreme Court of Errors, 1875. 42 Connecticut, 203. Pardee, J. In suits against minors, instituted by persons who have rendered services or supplied articles to them, the term "necessaries" is not invariably used iu its strictest sense, nor is it limited to that which is requisite to sustain life, but includes whatever is proper and suitable in the case of 366 ILLUSTRATIVE CASES each individual, having reference to hia circumstances and condition in life. The defendant applied to the plaintiflF for relief from pain and the prevention of its recurrence; he, finding the cause in the defendant's decaying and neglected teeth, immediately began the work of relief and repair, and continued the same from time to time during a period of six weeks, until its completion. It was necessary for the preservation of the teeth and the charge therefor is reasonable in amount. In view of the circumstances of this defendant, we have no hesitation in saying that the services are within the legal limitations of the word " necessaries." The teeth upon inspection disclosed their condition to the plaintiff; he could see that they had been neglected and were decaying ; and the record does not reveal any effort or intention even on the part of the guardian to repair or pre- serve them. Again, friends of the defendant in 'New Haven had twice previously taken him to the plaintiff for dental services, for which bills had been made out in his name, and had been paid ; his guardian furnishing the money without warning or objection to the plaintiff. These acts on the part of the defendant and his guardian rendered it unnecessary that the plaintiff' should have instituted an inquiry as to a guardian- ship over the defendant, before performing these last services, as a pre-requisite for a recovery in this suit, the work being necessary to meet an unsupplied want : Davis v. Caldwell, 12 Gush. 512 ; Brayshaw v. Eaton, 7 Scott, 187 ; Dalton v. Gibbs, 7 Scott, 117 ; 2 Greenleaf on Evidence, sec. 366. There is no error in the judgment complained of. In this opinion the other Judges concurred. SMITH ON CONTRACTS, 307. As to what are necessaries, see Middleberry College «. Chandler, 16 Vt. 686 ; Werner's Appeal, 10 Norris (Pa.), 222 ; Angel v. McLellan, 16 Mass. 28 ; Anderson v. Smith, 33 Md. 465. What are necessaries must be determined by the infent's condition and circumstances in life. Peters v, Fleming, 6 M. & W. 42 ; Davis v. Caldwell, 12 Cash. 512. IN DOMESTIC RELATIONS. 367 Money, in this technical sense, is not a necessary. Eandall v. Sweet. Supreme Court of New York, 1845. 1 Denio, 460. Bronson, Ch. J. An infant is not answerable for money borrowed, though expended by him for necessaries : nor for money borrowed to buy necessaries, unless it was actually so applied. And perhaps the infant is not answerable in that case, unless the lender either lays out the money himself or sees it laid out for necessaries. But where that is done, the infant is answerable for the money, the same as he would have been for the necessaries had they been directly furnished by the lender: Earle v. Peale, 1 Salk. 386 ; 10 Mod. 67, S. C. ; Ellis V. Ellis, 12 Id. 197 ; Comb. 482 ; 3 Salk. 197 ; 5 Mod. 368 ; 1 Ld. Eaym. 344, S. C. ; Macph., Infants, 505, 6 ; and see Marlow v. Pitefield, 1 P. Wms. 558 ; Probart v. Knouth, 2 Esp. 472, n. So an infant is liable for money paid to pro- cure his liberation from arrest on execution ; and also on mesne process, where the arrest was for necessaries : Clarke v. Leslie, 6 Esp. 28. The case at bar falls within the principle of those where the infant has been held liable. The money was paid at the plaintiff's request, to satisfy a debt which he owed for necessaries. The infancy of the plaintiff would have been no answer to an action by Eoot & McNaughton ; and I think it is no answer to the claim of the defendant, New trial denied. Swift V. Bennett, 10 Cush. 436 ; Con v. Coburn, 4 N. T. 368 ; Haine v. Torrant, 2 Hill (S. C), 400. 368 ILLUSTRATIVE CASES An infant having a parent or guardian who supplies his wants cannot make a valid contract for necessaries. Guthrie v. Murphy. Supreme Court of Pennsylvania, 1835. 4 Watts, 80, Sergeant, J. Infants constitute a class of society unable, from want of sufficient discretion, to judge what is best in the regulation of their conduct, and the disposition of their pro- perty : and the law, on that account, provides for the appoint- ment of guardians where they are destitute of parents. This safeguard would be of little avail, if third persons, passing it by, could deal directly with the infant, and bind him by his contract. He would be left exposed to the consequences of his own thoughtlessness and credulity, and of the craft of others. It is, therefore, incumbent on those who mean to create an obligation binding on an infant, where he has a parent or guardian extending towards him his care and protection, to apply to such guardian or parent, and contract with him. Though an infant may, in some cases, bind himself for neces- saries, yet he cannot do even that where he has a guardian or parent who supplies his wants : Bainbridge v. Pickering, 2 W. Black. 1325 ; Warley v. Toll, 9 Johns. 141. The profession or trade which he should learn ; the person most competent to teach him ; the terms on which the contract ought to be made, are all matters of great moment to the welfare of the infant, and may affect the course of his whole life. If there is any thing in which the counsel and assistance of a parent or guar- dian are material to his interests, it is this. Our Acts of As- sembly recognize an indenture of apprenticeship as valid, where there is a guardian, only when executed by him ; with- out his approbation, the infant's execution of it is null and void. In the case before us the plaintiff procured the defen- dant, a boy of sixteen, to enter into his service as an apprentice till twenty-one, to learn the trade of a tailor, without the IN DOMESTIC RELATIONS. 369 knowledge of his guardian ; who, when applied to by the de- fendant, expressed his disapprobation of the trade, as iinsuited to his health. The guardian lived in the same town, and was ready and able to supply the wants of the defendant. The plaintiiF, however, took him into his service, and some time after applied to the guardian to bind him. He refused, saying the defendant had gone against his consent ; but if he would serve the plaintiff according to the terms they had agreed on, it was well, or words to that effect ; but he would not interfere further in it. The plaintiff, therefore, took and retained him without the contract of the guardian, and at his own risk. In about two years the defendant's health was impaired ; he was obliged to quit the service in which he had worked faithfully ; and the plaintiff' now sues for the moneys expended in board- ing and clothing, beyond what the defendant's services were worth to him. It is manifest, on the principles already stated, that the plaintiff' has no cause of action whatever. If he has chosen to disregard the rules of law which forbid such a dealing with the infant, he must take the consequences. It is impossible to separate the articles furnished in pursuance of the contract of apprenticeship from the contract of apprenticeship itself. They constitute a part of it ; and every part was against the policy of the law, and void. It is in vain to argue that the mere con- tract of apprenticeship may be bad, and yet that a responsibil- ity may arise from delivering articles, or disbursing moneys under it ; or to say that the plaintiff, took the defendant away from the care and protection of his guardian ; and, therefore, the latter would be liable for necessaries. The very taking him away from that care and superintendence was an illegal act. The plaintiff's argument is exceptio ejusdem rei cujus petitio dissolutio. What would be thought of a person who should take an infant from his parent, and induce him to bind himself apprentice without the knowledge or consent of the parent, and afterwards charge the parent for clothing and boarding furnished the infant while in his service ? The infant's express promise to pay for the articles, in the present case, would have been invalid. The law would not raise an implied promise 24 370 ILLUSTKATIVB CASES from their delivery under an unauthorized contract; and, therefore, neither assumpsit nor any other form of action lies to recover the price of them in damages, or otherwise. Judgment reversed, and a venire facias de novo awarded. "Wailing v. Toll, 9 Johns, 141 ; Angel v. McLellan-, 16 Mass. 28. 3. ACTS OF ESTFANTS VOIDABLE. Those contracts which an infant can make, other than for necessaries, are voidable. Hunt v. Peake. Supreme Court of Few York, 1826. 5 Cowen, 475. Savage, Ch. J. The general principle is against the liability of the infant ; and I do not find that this case is an exception. In Holt V. Ward, 2 Str. 937, it was decided, after full argument and deliberation, that the contract to marry by an infant is not void ; but voidable at the election of the infant ; yet, as to the person of full age, contracting with the infant, it absolutely binds. Hence, an infant may maintain this action against an adult ; but an infant defendant is not liable : Com. Dig. Enfant, B. 6. The defendant is entitled to judgment. Judgment for the defendant. Bool «. Mix, 17 "Wend. 119 ; "Weaver r. Jones, 24 Ala. 420 ; TSTighten- gale V. "Worthington, 15 Mass. 272 ; Harner v. Dipple, 31 Oh. St. 72 ; Owen V. Long, 112 Mass. 403 ; Patchin v, Cromach, 18 "Vt. 330 ; Lawrence «. McArter, 10 Oh. 38. IN DOMESTIC RELATIONS. 371 4. ACTS OF INFANTS VOID. An infant cannot appoint an attorney, and his at- tempt to do so is void. Cole v. Pennoter. Supreme Court of Illinois, 1852. 14 Illinois, 158. Caton, J. The question as to what contracts by an infant are absolutely void, or only voidable, is one upon which there has been a very considerable diversity of opinion in different Courts. All agree that the implied contracts of an infant for necessaries are binding upon him, as in case of an adult, and all agree that the appointment of an attorney by an infant is absolutely void. The difficulty seems to have been in laying down a rule by which to determine satisfactorily what other contracts made by an infant are void, or merely vojdable. It was laid down by Lord Mansfield, in Zouch v. Parsons, 3 Burr. 1794, that all contracts which take effect by the delivery of the infant himself, are voidable, and not void ; and that it is only such acts as take effect by the delivery of another for the infant, which are absolutely void. He denies the doctrine often asserted, that a lease by an infant reserving no rent, or the surrender of a lease without consideration, are void, as being manifestly prejudicial to his interests; and he says "there is no instance where the other party to a deed can object on account of infancy. Consequently, the infant may let the surrender stand, or avoid it, which proves it to be voidable only." ]Srot long after, in the case of Keane v. Boycott, 2 H. Black. 511, Etrb, Ch. J., laid it down as a rule, that those deeds which the Court could see and pronounce to be prejudi- cial to the interests of the infants, were void; while "those which were manifestly to the advantage of the infant, as for necessaries, were binding, while all others were merely void- able, and might be confirmed or repudiated after he attains his majority. This rule is approved by Chancellor Kent in his 872 ILLUSTRATIVE CASKS Commentaries, understanding, as he evidently does, that it does not conflict with the case of Zonch v. Parsons, for he says the doctrine of that case "has heen recognized as law in this country, and is not now to be shaken. On the authority of that case, even the bond of an infant has been held to be voidable only at his election. It is an equitable rule, and most for the benefit of the infant, that conveyances to and from himself, and his contracts, in most cases, should be considered to be void- able:" 2 Kent, 236. Mr. Wallace, in a very learned note, where all the cases on the subject seem to be collected, says : " The numerous decisions which have been had in this country justify the settlement of the following definite rule, as one that is subject to no exceptions. The only contract binding on an infant is the implied contract for necessaries ; the only act which he is under a legal incapacitj* to perform, is the appoint- ment of an attorney. All other acts and contracts, executed or executory, are voidable or confirmable, by turn, at his election." If literally understood, there are certainly serioos objections to the i-ule, that the Court must, in every case, inquire whether the deed is for the benefit or to the injury of the infant, and thence determine whether it is void or voidable. In such an inquiry, is the Court to look alone to the face of the deed ? or shall it inquire into the circumstances of the transaction? If .the former, the Court must often be misled, for it is frequently the case that a deed for the conveyance of land shows but very little of the true character of the transaction, its object beino" merely to transfer the legal title without a strict regard to the real inducements and considerations which moved the party to the conveyance. If the rule be established, that the face of the deed shall determine whether it was to the advantage or injury of the infant, such deeds will always be framed with a view to that, and will never fail to show an advantageous bargain for the minor. There are serious objections, also, to requiring the Court to hear evidence showing the circumstances of the sale, and thence determine the question of benefit or injury. In the first place, it would interrupt the regular progress of the trial, by a collateral inquiry about facts which when ascertained might induce one to think the bargain advantageous, while another would think it ruinous to the interests of the infant IN DOMESTIC RELATIONS. 373 •But in determining these questions, a certain regard must be had to the interests of the public, — of those who may wish to purchase the estate. A subsequent purchaser finding a regular chain of title, may be required to ascertain whether those through whose hands the title has passed M-^ere capable of mak- ing an obligatory conveyance, and if he finds any of them are infants, take his chance of a subsequent ratification of the con- veyance; but to require him to ascertain ail the circumstances of the bargain, and from these to judge at his peril what the opinion of Courts might be of its beneficial character, would leave the common assurances of the countrj' in quite too uncer- tain a condition. It is far better, in our judgments, to hold all conveyances made by infants in person voidable only, to be con- firmed or repudiated by them as they may choose, after they arrive at years of legal discretion. A review of the authorities on this subject would show that this rule has been generally, if not universally adopted, and it is certainly most to the advan- tage of the infant, while it least subserves the public interests:" Leslie v. Frazier, Eiley's Ch. E.. 76 ; Cline v. Beebe, 6 Conn. 499; Drake v. Ramsey, 5 Ohio, 152; Freeman v. Bradford, 5 Porter, 270; Brackenridge v. Ormsbey, 1 J. J. Marshall, 236; Bool V. Mix, 17 Wendell, 120 ; Gillett v. Stanley, 1 Hill, 122. " Were a deed to be held to be void, it would be binding upon neither party. The adult party might repudiate it as well as the infant; whereas, if held to be voidable only, the adult would be bound by it, leaving it optional with the infant, after he attains his majority, to ratify it or not. With this option it cannot prejudice his interests. He is left to claim the benefit of the bargain if a good one, or to reject it if he has been over- reached or imposed upon in his infancj'." We have no hesita- tion in holding iu this case that the deed made by the plaintitf during his minority was voidable, but not void. He had a right to revoke it within a reasonable time after he became of age. There are various modes in which the grantor after he becomes of age may disaffirm a conveyance made during his minority, one of which is by bringing an action of ejectment for the premises conveyed, as was done in this case. But this should, no doubt, be done within a reasonable time. Within what time the party should disaffirm the act or be considered 374 ILLUSTRATIVE CASES to have approved it, it is unnecessary to determine, at least so far. as the conveyance of real estate is concerned, for we have a statute which has settled that question in this case. The eighth ' section of the twenty-fourth chapter of the Revised Statutes provides as follows : " Every person in the actual possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in such possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be. the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession by purchase, devise, or descent, before said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to continue the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section." The ninth sec- tion prescribes the rule as to vacant and unoccupied land ; and the tenth section exempts from the operation of the two pre- ceding sections certain lands in which the public have an interest, and proceeds: "Nor shall they extend to lands or tenements when there shall be an adverse title to said lands or tenements, and the holder of such adverse title is under the age of twenty- one years, insane, imprisoned, feme covert, out of the limits of the United States, and in the employment of the United States or of this State: Provided, such person shall commence an action to recover such lands or tenements so possessed as aforesaid, within three years after such disabilities herein enumerated shall cease to exist, and shall prosecute such action to judg- ment." Whether a void deed would constitute such claim and color of title as is contemplated in this statute, it is not neces- sary for us now to inquire ; that a deed which binds the grantee, and actually, conveys the legal title, and which can only be defeated by some affirmative act, by the grantor or his repre- sentatives disaflirming it, and which to all the rest of the woi'ld is good and valid for all purposes, does constitute such elaiiix and color of title, we cannot doubt. Should this be held not within the provisions of the statute, it would be difficult to find one that would, short of an absolute and indefeasible title. It was to quiet possessions held in good faith, but under defeo IN DOMESTIC RELATIONS. 375 tive titles, that this statute was passed, and not to give security to those who were already secure. The bill of exceptions in this case shows that the plaintiff executed the deed in question in 1833, and that in 1835 he became twenty-one years of age, and after the lapse of sixteen years he commenced this action, for the first timej so far as we know, claiming the title in oppo- sition to his'deed.: Arthur, the immediate grantor of the plain- tiff, took possession of the land. From him the title was regu- larly transferred to the defendant in this action, through sev- eral mesne conveyances, which were all regularly acknowledged and recorded ; and those under whom he claims have had the actual and continued possession, and have paid all taxes due thereon since 1839, a period of twelve years immediately ante- cedent to the commencement of this action. During all of this time, and for the four previous years, the plaintiff had been of age, and legally capable of asserting his rights, had he chosen so to do, while the statute requires that he should have asserted them within three years after his disability was removed. It is true that this statute has been passed since he attained his majority, but the defendant has held possession and paid the taxes more than seven years since its passage, and this entitles him to the benefit of the statute. The judgment of the Circuit Court is affirmed. Judgment affirmed. Tucker v. Moreland, 10 Pet. 59 ; s. c. 1 Am. Lead. Cases, 280, note. But see Cumtnings v, Po^yell, 8 Texas, 80-88 ; Ferguson, v, Houston, etc., By., 73 Id. 344, 376 ILIiUSTEATIVE CASES 5. VOIDABLE CONTEACTS AFFIKMED, All voidable contracts of an infant may be made valid by his ratification or affirmance thereof after he has reached his majority, but not before. GooDSBLL V. Myers. Supreme Court of New York, 1830. 3 Wend. 479. Savage, Ch. J. The note of an infant is voidable, not void: 1 Saund. on PI. & Ev. 303, a!nd may be ratified after he conies of age. In this case the defendant was an infant when the notes declared on were given, and the infancy is admitted by the pleadings. The evidence of a subsequent ratification was merely a loose conversation, not with the payee or holder, or agent of the payee or holder of the note, but with a stranger, and in my opinion was wholly insufficient to charge the defen- dant. A ratification of an infant's contract should be something more than a mere admission to a stranger that such a contract existed ; there should be a promise to a party in interest or his agent, or at least an explicit admission of an existing liability from which a promise may be implied. This case is not simi- lar to that of a note barred by the statute, where there has been a valid instrument, but the statute presumes payment from lapse of time ; any admission of an existing debt in such case is sufficient to rebut the presumption. It is not so in the case of a contract by an infant (not for necessaries.) The note during the infancy of the defendant was not an available in- strument, and never can be available but by force of a ratifica- tion after the infant arrives of age ; and such ratification, it seems to me, must be equivalent to a new contract. IN DOMESTIC RELATIONS. 377 BiaELOw V. Grannis. Supreme Court of New York, 1841. 2 Hill, 120. The Court. This is not like the case of a debt barred by the Statute of Limitations, where proof of an acknowledgment will, under certain circumstances, be sufficient to save the action. In the case of infancy, there must be a new promise or ratification of the contract after the defendant has attained the age of twenty-one years ; and, as in other cases of contract, the minds of the parties must meet. A promise to a stranger will not answer. It must be to the plaintift', or, what is the same thing, to his attorney or agent. New trial granted. Gillespie v. Bailey et al, 12 W. Va. 70 ; Hale v. Gerrish, 8 N. H. 374. (a) HOW AFFIRMED. Those acts which are inconsistent with an intent to disaffirm the contract are evidence of its ratification. Henry v. Root. Court of Appeals, New York, 1865. 33 N. Y. 526. Where an infant purchases land and gives his note for the purchase- money, and after reaching his majority continues in possession of the land, exercising over it acts of ownership, such acts will be regarded as a ratification or affirmance of the purchase. Davies, J. This action was brought to recover the amount of a promissory note for $600, made at Fort Des Moines, in the State of Iowa, by the defendant, whereby he promised to pay to the plaintiff, for value received, the said sum of $600, with interest at the rate of ten per cent, per annum, on or before the 15th day of April, 1857. 378 ILLUSTRATIVE CASES The defendant set up in his answer two distinct grounds of defence: First. That the note was given for part of the con- sideration of certain lots, situated in the town of Logan, in the territory of Nebraska ; tliat the agreement for the purchase of said lots was made by the defendant with one Campbell, the agent of the plaintiiF, when and whereby the defendant agreed to purchase said lots at and for a price of $700 ; that he paid iu cash $100, and gave said note for the residue of the consid- eration or purchase-money of said lots ; that said purchase was the only consideration for the same, and that he relied wholly upon the statements and representations of said Campbell as to the situation and value of said lots. The answer then sets out the representations made, and that the plaintiff 's title was goOd, ■whereas he had no title to the same, and such representations were untrue, and that he was deceived and defrauded thereby; that he, the defendant, never had possession of said lots, and had never sold or conveyed any or either of them. For a second defence, the defendant averred that, at the time of making and executing the said note, he was an infant, under the age of twenty-one years. On the trial the note was pro- duced and read in evidence ; and the plaintiff rested. The defendant then offered himself as a witness, and testified that at the time the note was executed he was not twenty-one years of age, and further testimony to the same effect was offered. The defendant attained the age of twenty-one years on the 25th of February, 1857. The witness testified that on the 29th of January, 1857, the day after date of the note, he received a conveyance for said lots of land executed by Camp- bell as agent of the plaintiff", and that the same was acknowl- edged the same day. The plaintiff" then offered the same in evidence, and the deed was objected to by the defendant's counsel, on the ground that it was not properly acknowledged nor authenticated ; that it was not shown that the person who executed it had authority from the grantor, and also that it was not under seal, and therefore void. The Court sustained the objection, and the plaintiff excepted. The plaintiff then offered to show by the witness that defendant took possession of the land under this, deed, and that on the 19th of May, 1857, defen- dant conveyed a portion of the land to one Sandford B. Perry, qf IN BOMESTIO RELATIONS. 379 Chicago, by a deed not under seal, for the consideration of $100. This was objected to by the defendant, on the ground that no title was obtained by the defendant by the paper received by him, and the objection was sustained by the Court, and the plaintift" excepted. The witness testified that the consideration of the note was for the conveyance of real estate. The deed was then put in evidence by the defendant, and by it the plaintiff, for the consideration of $100 paid, the receipt whereof was acknowledged, and the further consideration of $600, to be paid on the 15th of April, 1857, sold, released, and forever quit-claimed to the defendant all his right, title, and interest to the said real estate, and the plaintiff did thereby warrant and defend the above property. It was dated June 29, 1857, and signed, " Wm.. R. Henry, by his agent, 11. C. Camp- bell." It was acknowledged on the same day by the agent, before a notary public. The Court held and decided the paper in evidence conveyed no title to the land in question to the defendant, not being under seal, and no power of attorney shown ; to which ruling and decision the counsel for the plaintiff excepted. The Court also decided that the defendant was not bound to tender to the plaintiff a reconveyance ; to which ruling and decision the counsel for the plaintiff also duly excepted. The Court also held and decided that the defendant was not liable on the note, because he was an infant when he executed it ; to which ruling and decision the plaintiff also duly excepted. And thereupon the Court directed the jury to render a verdict for the defen- dant ; to which ruling and direction the plaintiff also excepted. Thereupon, the exceptions were directed to be heard in the first instance at the General Term, where judgment thereon was given for the defendant. The plaintiff now appeals to this Court. There is no controversy that the defendant was an infant at the time this note was executed. If he has done nothing; since, attaining his majority which makes the contract obligatory upon him, then the direction of the Court to the jury to find a verdict for the defendant was correct. But if, however, he promised to pay the note, after arriving at full age, or ratified 380 ILLUSTRATIVE CASES the contract, or affirmed the purchase for which the note was given, then the note became obligatory upon him. The defendant failed to sustain the allegation, by his answer, that any fraudulent representations had been made to him to induce him to enter into the purchase, or that there was any failure of title in the plaintiff, and, consequently, a failure of the consideration of the note. There has been much discussion in the books as to what acts or declarations of a party will revive a debt barred by the Statute of Limitations, or one discharged by an insolvent or bankrupt discharge, or render obligatory and valid the contract of an infant. There has been a commingling of all these cases ia judicial opinions, a^id, frequently, no clear and marked lines of distinction Lave been presented. I shall make the effort to eliminate some principles which are applicable to each of these cases, and endeavor to show wherein they differ and the reasons for such difference, and wherein they are coincident, and the principles which have been established as applicable to these three classes of cases. A clear understanding of the various decisions, and the principles settled by them, makes such an examination imperative, and from it we shall discover the doc- trine settled, and the reasons therefor. In Sands v. Gelston, 15 Johns. 519, Spbncek, J., lays down what appears to be the correct rules in reference to debts barred by the Statute of Limitations, debts of infants not for necessaries, and the debts of bankrupts discharged under the bankrupt Acts. In all these cases, although, by reason of certain provisions of law, such debts cannot be enforced against the debtors, still the debt remains, and the moral obligation to pay continues iu full force. Hence it is after a debt is barred by the statute in the one case, or discharged by the operation of the bankrupt or insolvent lavi's in the other, or in the case of the infant, who, on his attaining his majority, and not before, can make a legal contract, which can be eo instanti enforced against him, thatjn all these cases, the moral obligation has been held a sufficient and legal consideration, without any other, for the promise or undertaking to pay the debt, by acknowledgment, ratification, or a new promise. In other words, the Courts have, in truth, regarded the old debt as continued or revived, and no new con- IN DOMESTIC RELATIONS, 881 - sideration was required to support it. Spencer, J., says, in Sands v. Gelston, " I never could see the difference, as regards the revival of a debt, between one barred by the Statute of Lim- itations and one from which the debtor haa been discharged under the bankrupt or insolvent laws. The remedy is equally gone in both cases. The Statute of Limitations requires all actions on contract to be commenced within six years next after the cause of such action accrued, and not after. The remedy being suspended after six years, there yet exists a moral duty on the part of the debtor to pay the debt ; and accordingly, a promise to pay a debt not extinguished, but as to which the remedy is lost, is a valid promise, and may be enforced, on the ground of the pre-existing moral duty. There is, then, no sub- stantial difference between a debt barred by the Statute of Limi- tations, and a debt from the payment of which the debtor is exonerated by a discharge under bankrupt or insolvent laws. Both of these rest on the same principle with a debt contracted by an infant not for necessaries; yet it is singular that in neither of the latter cases will the bare acknowledgment that the debt once existed and has not been paid, support an action — an express promise to pay being necessary." A review of the eases, on the question of what is necessary to revive a debt barred by the Statute of Limitations, will clearly show that a bare or mere acknowledgment of the existence of the debt is sufficient, as the law will imply or infer from its existence a promise to pay it ; and it is of little moment whether it be re- garded as a new promise or a revivor and continuation of the old one. In Johnson v. Beardslee (15 Johns. 4), an acknowledgment of the debt was holden to be sufficient evidence for the jury to presume a new promise. In Shulz v. Champlin (4 Id. 461), the defendant said the debt ought to be paid, and mentioned eight- een months as the time he wanted for payment. This was held a promise sufficient to make him liable. In Jones v. Moore (7 Binu. 673), an acknowledgment of a subsisting debt was suffi- cient to take the case out of the statute, and it was held it would authorize the jury to infer a new promise to pay, or, rather, that the old promise was continued, or, as some choose to call it, revived : Mosher v. Hubbard, 13 Johns. 510. On the 382 ILLUSTRATIVE CASES claim being presented to the defendant, he did not intimate that he intended to avail himself of the statute ; but the only ques- tion to his mind seemed to be whether the account had not been paid, and he promised to examine his papers, and, if he found he had paid the order, he was to write the witness, but as the witness testified he had never written, the Court held that this was sufficient to raise an implied promise to pay the money, unless on examination it should be found that the order had been paid, and there was no evidence whatever of any pay- ment : Sands v. Grelston, supra. Spencer, J., says : " I am bound by authority to consider the acknowledgment of the existence of a debt within six years before the suit was brought, as evidence of a promise to pay the debt." In Clemenstine v. Williamson, 8 Cranch, 72, Marshall, Ch. J., says : " It has been frequently decided that acknowledgment of a debt, barred by the Statute of Limitations, takes the case out of that statute, and revives the original cause of action. So far as decisions have gone, principles may be considered as settled, and the Court will not lightly unsettle them It is not sufficient to take the case out of the Act that the claim should be proved, or be acknowledged to have been origi- nally just ; the acknowledgment must go to the fact that it is still due." The same learned Judge, in Wetzell v. Buzzard, 11 Wheat. 309, remarked : " It is contended on the part of the plaintiff that he has proved an acknowledgment of the debt, and that such acknowledgement, according to a long series of decisions, revived the original promise, or it lays the foundation upon, which the law raises a new promise. The English and Ameri- can books are filled with decisions which support this general proposition. An unqualified admission that the debt was due at the time, has always been held to remove the bar created by the statute." In Bloodgood v. Bowen, 4 Seld. 308, Gardiner, J., says: "A mere acknowledgment of an indebtedness is but evidence from which a prgmise to pay may be inferred. When it is uncondi- tional, a Court or jury may infer a willingness to pay, or a promise to that eftect, because it would be difficult to assign any other reason for a voluntary admission of this sort." IN DOMESTIC RELATIONS. 883 Marcy, J., says, In Depeyster v. Swart, 3 Wend. 189, " that the bare acknowledgment of a debt, barred by the statute of limitations, is held to revive it." In Purdy v. Austin, 3 Wend. 189, the same Justice says, after discussing the reasoning of the Court in Sands v. Gelston, that the unqualified and unconditional acknowledgment of a debt, made by a party within six years before suit brought, is adjudged at law to imply a promise to pay. In Bell V. Morrison, 1 Pet. 351, Justice Story, in delivering the opinion of the Court, observes that "the rule announced in 11 Wheaton was the result of a deliberate examination by the Court of the English and American authorities," and adds : " We adhere to the doctrine as there stated, and think it the only exposition of the statute which is consistent with its true object and import." He then says : " If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of the previous subsisting debt which the party is liable and willing to pay." At the conclusion of the opinion, he says that it is to be understood that it is not unanimous, but that of a majority of the Court, and that it has been principally, if not exclusively, influenced by the course of decision in Kentucky on this sub- ject. I think particular note should be made of this remark, as Judge Story's observations in this cause have been disap- proved of by two of the Judges of our own State, hereafter alluded to. It is to be observed that Judge Story introduces an element which is not, so far as my researches extend, con- tained in any previous authority, viz. : that the party making the acknowledgment must be " willing to pay." He does not say that he must express that willingness, as some Judges have supposed, or whether that willingness may be inferred from his acknowledgment of the previous subsisting debt. I think the latter view must be the correct interpretation of this remark, as I am unable to find any dictum of any Judge anterior to this, that in addition to the acknowledgment it was required that the party must also express a willingness to pay. In Purdy v. Austin, supra, the judgment was reversed on the ground that the acknowledgment of the defendant did not amount to an 884 ILLUSTRATIVE CASES unequivocal and positive recognition of the subsisting claim in favor of the plaintiff. In Stafford v. Bryan, 3 Wend. 535, Stjtheeland, J., in deliv- ering the opinion of the Court of Errors, says : " An acknowl- edgment, which is to have the effect of taking a demand out of the effect of the Statute of Limitations, ought to be clear and explicit in relation to the subject of the demand to which it refers. The acknowledgment or new promise is to be alfirmar tively established by the plaintiff'." Pie adds : " Although I cannot yield my assent to all the points decided in that case (Bell V. Morrison), nor to all the reasonings and positions ad- vanced by the learned Judge who delivered the opinion of the Court, the general views to which I have assented appear to me to be sound and impressive." In Dean v. Hewitt, 5 Wend. 257, Maecy, J., remarks, that " the Statute of Limitations pro- ceeds upon the presumption of payment ; a recognition of the existence of tbe debt, after the statute has attached, revives the remedy which was lost, but the cause of action is the same as it was before the remedy. This Court has always considered the acknowledgment or new promise as a continuance of the old promise. . . . The acknowledgment rebuts the presumption of payment; and when made before the statute attaches has the same effect as though made afterwards. It keeps alive, if I may so express it, the remedy. ... It cannot be said that the new promise either revives the cause of action or the remedy ; it only continues the latter." He adds, that he is aware that some of the positions there stated conflict with the views of Mr. Justice Stoky, as expressed in Bell v. Morrison, but we cannot yield to these views, and give full effect to them, with- out unsettling principles that have been so long established as to entitle them to be evidence of the laws of this State. In Hancock v. Bliss, 7 Wend. 267, Chief Justice Savage said, the acknowledgment must however be explicit, and without a denial of the equity or legality of the demand : hence if the defendant denies the justice of the demand, or reposes himself upon the statute, a promise will not be presumed. In Patterson v. Choate, 7 Wend. 445, the Court, by Suther- land, J., held that an acknowledgment of an existing indebt- edness was sufficient to raise a new promise. There the witness IN DOMESTIC RELATIONS. 385 first stated what the defendant said, as follows : That " the balance as exhibited by their books of account was due to the plaintiff at the time of the dissolution of the copartnership, and had not been paid to his knowledge." Upon being interrupted by the plaintiff's counsel, he said the expression used by Pat- • terson was that the balance was due at the time of the dissolu- tion, and still is due, as witness thought; it might have been, that it was then due and never been paid ; either version of it amounts to a clear and explicit admission of a subsisting indebt- edness. In Gailey v. Crane, 21 Pick. 523, the Supreme Court of Massa- chusetts says, the doctrine laid down in the case of Bangs v. Hall, 2 Pick. 368, was well considered, has since been tested by experience, and is undoubtedly sound and wise. It has been everywhere acknowledged as sound law, (citing a large number of authorities to sustain this position). The Court further say, " the principles there laid down are, that to take a debt out of the Statute of Limitations there must be either an express promise to pay, or an unqualified acknowledgment of •present indebtedness. In the latter case the law will imply a promise to pay." In Allen v. Webster, 15 Wend. 284, Savage, Ch. J., after re- viewing all the authorities, says : " Whatever therefore may be the true philosophy of the rule, and learned Judges have dif- fered on that subject, yet since the case of Sands v. Gelston there has been no dispute as to what the rule in fact is, to wit : that to revive a debt barred by the Statute of Limitations, whether the statute theoretically operates upon the debt itself, or upon the remedy only, there must be an express promise or an acknowledgment of a present indebtedness, a subsisting liability, and a willingness to pay." This last remark about a willingness to pay has no foundation but Judge Stoky's obser- vation in Bell v, Morrison, and which has been disapproved of by two of our Judges ; Gardner, J., states the rule as he is in- clined to thick it is in Wakeman v. Sherman, 5 Seld. 91, in these words : " That to revive a demand thus barred there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise may be fairly implied." 25 386 ILLUSTRATIVE CASES And this case also enunciates the rule laid down m many other cases, that the acknowledgment of existing indebtedness or the promise to pay must be made to the party to whom the debt is due, or to his agent: an acknowledgment or promise to a stranger will not answer. As has been seen from the remarks of Chief Justice Spencer in Sands v. Gelston, something more has been required to esta- blish a debt against a bankrupt, which has been discharged by his certificate, or a discharge from his debts under an insolvent law. In the latter case the debts have ceased to exist. It has been extinguished, and though the moral obligation notwith- standing remains to pay it, and is held to be a good considera- tion for the promise to pay it, yet there must be a new promise equivalent to a new contract. In the case of a debt barred by the Statute of Limitations, we have seen that the debt is not discharged, but the remedy by action is only taken away or suspended until the debt is revived. In the case of Roberts v. Morgan, 2 Exch. 736, Eyre, Ch. J., says a debt barred by a certificate, under a commission of bankruptcy by a new promise to pay it, becomes a new debt. Lord Mansfield also says, when there has been a new promise after the discharge, the bankrupt is liable as on a new contract : Doug. 192. The moral obligation uniting to the new promise makes what he calls, in the case of Truman v. Fenton, Cowp. 544, "anew undertaking and agreement." In Dupuy v. Mount, 3 Wend. 185, Marct, J., says : " The bare acknowledgment of a debt barred by the Statute of Limi- tations is held to revive it ; but an acknowledgment of a debt from which the defendant has been discharged, be it ever so explicit, gives no chance of action." After referring to the authorities also alluded to, he says: "The authorities clearly show that the new promise is the contract upon which the action against the defendant must rest. The old debt has no further connection with this suit than what arises from the circumstance that it is resorted to for the purpose of furnishing a consideration for the promise, by reason of its moral oblio-a- tiou after its legal obligation is destroyed by the discharge. The liability, therefore, of the defendant is on the new con- tract." IN DOMESTIC RELATIONS. 887 A protracted struggle has been maintained in the Courts, on the one hand to protect infants and minors from their own improvidence and folly, and to save them from the depreda- tions and frauds practised upon them by the designing and unprincipled, and on the other to protect the rights of those dealing with them in good faith and on the assumption that they could lawfully make contracts. Much discussion has been had in the books, by eminent and learned Judges, whether the contracts of an infant were void or voidable, and the earlier decisions were that such contracts were void. And the method adopted by the Courts to protect an infant against the effects of his own weakness has been to consider his acts as not binding: Bingham on Infants, 5. Miserable, says Lord Mansfield, in 3 Burr. 1801, must the condition of minors be, excluded from the society and commerce of the world, deprived of necessaries, education, employment, and many advantages, if they could do no binding acts. Great inconvenience must arise to them if they were bound by no act. The lavy, therefore, at the same time that it protects their inability and indiscretion from injury, through their own im- prudence, enables them to do biuding acts, and without preju- dice to themselves, for the benefit of others. And in that case (Couch V. Parsons), it was expressly decided that an infant's conveyance, by lease and release, was voidable only and not void. This decision has been considered by many Judges and lawyers as unsound, and particularly by Mr. Preston, in his work on Conveyancing, in which he says, " no lawyer of emi- nence has thought it safe to follow that decision in practice. To admit, indeed, that such a decision is law, is to confound all distinctions and to oppose all authorities on this head:" 2 Pres- ton on Con. 248 ; and at page 375 he also says : " It would be well for every lawyer that such a decision had never existed." These views of this learned author show how firmly implanted in the legal mind was the doctrine, that the acts and contracts of an infant were void and not voidable. We .shall see that the modern doctrine is fully in harmony with that laid down in Couch v. Parsons, and that such is now the well and firmly established rule of law. A void act never is nor ever can be biuding, either on the party with whom it 388 ILLUSTRATIVE CASES originates or on others. All who claim through or nndfer it must fail, and it never can, at any time or by any means, be confirmed or rendered valid. A voidable act is binding on others nntil disaffirmed by the party with whom it originated : it is capable, at a proper time and by proper means, of being confirmed or rendered valid : Bing. on Inf. 7. I think it will be found, on a careful examination of the cases and the current of decision by learned Judges, that the doctrine of an express promise by an infant, after his attaining his majority, being necessary to establish a contract as binding made by him during infancy, originated mainly from two sources: first, the notion of the English Judges that it was their peculiar duty to protect infants from their own acts of imprudence and folly ; and, second, that their contracts being wholly void, something must be done equivalent to a new con- tract after coming of age to make that legal and effective which before had no force or existence. And from this latter consid- eration, I think, another error had its origin into which so many Judges have fallen, that, to make binding a contract of an infant after he attained his majority, acts must be done of an equal character or degree which a bankrupt discharged from a debt must perform to give new life, vigor, and vitality to a debt discharged and cancelled by his bankrupt or insolvent dis- charge. The promise to pay a debt discharged under an insol- vent law, as we have seen, becomes a new contract. In the case of Eoberts v. Morgan, 2 Exch. 736, Eyee, Ch. J., says a debt barred by a certificate under a commission of bankruptcy, by a new promise to pay it, becomes a new debt. Lord Maksfield also says, when there has been a new promise after the discharge, the bankrupt is liable as on a new contract : Doug. 192. The moral obligation, uniting to the new promise, makes what he calls, in the case of Truman v. Fenton, Cowp, 544, " a new undertaking and agreement." In Lynbury v. Weightman, 5 Exch. 198, Lord Ellenborough said that in order to bind a bankrupt by a new promise, he should expect a positive and precise promise to pay ; and in a note to this case, it is said that bankrupts and infants stand on a different ground with respect to debts from which they are discharged. IN DOMESTIC RELATIONS. 389 f If the contract of the infant be not void, but only voidable, can it be justly said that it has been discharged paid, that is, as if it had no existence? It seems to me not, and that tho course of argument of many learned Judg-es, in assuming that the contract of the infant and that of a bankrupt discharged by the Act are to be placed on the same footing, cannot be sus- tained either -by sound reasoning or by authority. I think the foundation of the reasoning lies iu the assumption that the contracts of the infant were void., If this were so, then the analogy would certainly be complete. But if voidable only,, then it is submitted that it wholiy fails, and that the contracts of an infant, which are only suspended during his minority, may be revived and ratified by him on arriving at age, upon the same principles, and for the same reasons, and by the same means, as a debt barred by the Statute of Limitations may be revived and restored to its pristine vigor and efficacy. A review of the cases will, I think, warrant us in arriving at this conclusion. In Stone v. Weythipol, Cro. Eliz. 126, an action was brought against the executor of an infant, on a debt due by him, and which he had promised to pay. Egertou, for the plaintiff, contended that the promise of an infant is not void, but for his non-age he may help himself by plea ; but if debt had been brought against him, and. he pleads nil debet, it shall be found against him, and if at his full age he had payment, it had been good and inforo consderdicB, the promise of the infant had been made good. Coke contended that it is no consideration, for every consideration that doth cbargei the defendant in an assumpsit must be to the benefit of the defendant, or charge of the plaintiff", and no case can be put out .of this rule, and this contract by the infant was void ; and afterwards the Court was clear of the opinion that the action did not lie, for the contract of the infant was merely void, and in debt against him he might plead nildebet. Egerton then said, " it had been adjudged iu that Court, in Edmonds v. Burton, that when an infant was bound in an obligation, and at his full age he promised pay- ment, an action was maintainable against his executor on this promise, to which the Court agreed, for the bond, which was the ground of it, was not void, but voidable, and he could not 390 ILLUSTRATIVE CASES plead non est factum or nil debet to a bond, and if at his fall age he had accepted a defeasance of the bond, this had made it good, and in the case cited the promise was by the infant him- self, which in conscience he ought to pay." Moning v. Knoss, Cro. Eliz. 700, was an action of assumpsit, where an infant being bound in a bond for the payment of £17 at his full age, in consideration that the plaintiff, the obligee, would stay the suit he had brought on the bond, he answered that be would pay the £17 on a certain day after. Upon non-assumpsit pleaded, it was found for the plaintiff, and it was alleged in arrest of judgment that there was not any consideration to ground an assumpsit, and in proof thereof the case of Stone v. "Weythipol, supra, was cited ; for the bond, not being sufficient to bind him, there is not any cause for him to make this assumpsit, and of this opinion was Turner, but Clinch ar- rested, and the other Judges being absent, the matter was adjourned. In Thrupp v. Fielden, 2 Ex. 628, the action was assumpsit, and the plaintiff proved a payment of £40, on account of the bill, since defendant came of age. For the plaintiff, it was contended that this was an admission by the defendant of his liability to pay, and tantamount to a new promise. But Lord Kenton said : " This is not such a promise as satisfies the issue. The case of infancy differs from the statute of limitations : in the latter case, a bare acknowledgment has been held to be suffi- cient. In the case of an infant, I shall hold an acknowledg- ment not to be sufficient, and require proof of an express prom- ise to pay made by the infant after he had attained that age when the law presumes that he has discretion." It seems to me these cases have proceeded on the principle, that the obligations of the infant were void, and that on his attaining his majority he was as much discharged from them, on that ground, as a bankrupt is by his discharge under the bankrupt or insolvent laws. It will be convenient here to examine the conrse of decision in this country upon this branch of the law. In an early case in Connecticut (1809)— Eod gars v. Hand, 4 Day, 57— the Supreme Court of Errors held, that all contracts made by infants against their interest were void, and that the IN DOMESTIC RELATIONS. 391 same evidence might be required of the confirmation of a void- able contract after full age as of the execution of a new one, to avoid fraud and imposition. This case was followed by the Court in Benham v. Bishop, 9 Conn. 333. Dassett, J., there lays down the rule very broadly, that the note of an infant cannot be satisfied by merely acknowledging that he made it, or that it is due. Un- like an admission of the debt barred by the Statute of Limita- tions, which has been held to remove the tar, and authorize a recovery, he says, in the case of a note or bond of the minor, there must be a promise to pay when of full age. In Wilcox V. Roath, 12 Conn. 550, the language used by the Court is broad and sweeping. It is, that it has been contended that the evidence which would take a case out of the Statute of limitations is sufficient to prove the ratification of a contract made by an infant. Such, however, the Court says is not the rule. The cases are not analogous. They stand on difierent grounds, and aro governed by different principles. In the one case, the debt continues from the time it was contracted. A new promise merely rebuts the presumption created by the statute, and the plaintiff recovers, not on the ground of any new right of action, but that the statute does not apply to bar the old one. In the other, there never was any legal right capable of being enforced, and in case of a promise, after the intant became of age, to take upon himself a new liability, pro- ceeded, indeed, upon a moral obligation existing before. Ac- cordingly, it is well settled that a bare acknowledgment is sufficient to take a case out of the Statute of Limitations. But in regard to the contract of an infant, it has been repeatedly adjudged that there must be an express promise to pay the debt after he arrives at full age, otherwise there is no ratifica- tion. In Smith v. Mayo, 9 Mass. 62, the Supreme Court held that a direct promise when of age is necessary to establish a contract made during minority, and that a mere acknowledg- ment, as in cases under the Statute of Limitations, will not have that effect; and it is also stated that the rule is, that such promise must be made deliberately and with a knowledge that the party is not liable by law. In this case the infant made a 392 ILLUSTRATIVE CASES bond, and, after he came of age, made his will, disposing of hia estate, " after his just debts are paid ;" and the Court held, that this expression did not amount to a promise to pay the bond ; that it contained a direction only to pay just debts, and there ■was nothing in the case from which the Court could infer that what was not in law a debt could be considered by the testator as a just debt. The same doctrine was repeated in Ford v. Phillips, on the authority of this case, and it was affirmed that a direct promise was necessary : a mere acknowledgment of the debt is not sufficient. But the true doctrine is moi'C accu- rately laid down in Whitney v. Dutch, 14 Mass. 460. There Pakker, Ch. J., says: " By the authorities, a mere acknowl- edgment of the debt, such as would take a case out of the Statute of Limitations, is not a ratification of a contract made during minority. The distinction is, no doubt, well taken. The reason is, that a mere acknowledgment avoids the pre- sumption of payment wliitli is accepted by the statute of limi- tations ; whereas the contract of an infant may always, except in certain cases sufficiently known, be voided by him by plea, whether he acknowledge the debt or not, and such positive act or declaration on his part, is necessary to defeat his power of avoiding it. But the terms of the ratification need not be such as to import a direct promise to pay. All that is necessary is, that he expressly agrees to ratify his contract, not by doubtful acts, such as payment of a part of the money due, or the interest, but by words, oral or in writing, which import a recognition and a confirmation of his promise." In Thompson v. Lay, 4 Pick. 48, Parker, Ch. J., says the cases of "Whitney v. Dutch and Ford v. Phillips explicitly lay down the principle that the promise of an infant cannot be revived, so as to sustain an action, unless there be an express confirmation or ratification after he comes of age. " A promise to jjay is evidence of a ratification ; so is a direct confirmation, though not, in words, amounting to a direct promise ; as if the party should say, after coming of age, 'I do ratify and confirm,' or, ' I do agree to pay the debt.' " And in Read v. Batchelder, 1 Mete. 559, Shaw, Ch. J., says, the question, what acts of an infant are voidable and what void, is not very definitely settled by authorities ; but, in general, it may be said the tendency of IN DOMESTIC RELATIONS. 893 modern decisions is to consider them voidable, and thus leave the infant to affirm or disaffirm when he comes of age, as hia own views of his interest may lead him to elect, and that it is established in Massachusetts that the note of an infant is void- able only, and may be regarded as a good foundation for a new promise when he comes of age — citing Whitney v. Dutch and Thompson v. Lay, supra, and Martin v. Mayo, 10 Mass. 137. In Pierce v. Tobey, 4 Mete. 168, the Court said : " A contract made by a minor may be affirmed after his arrival at full age ; and if so done, and by words proper to give it force and effect, as a valid contract, it will be operative and binding upon him. A mere acknowledgment of a debt so existing is not sufficient ; but there must be a direct promise, or a direct confirmation, before any liability attaches." In Hall V. Gerrish, 8 K H. 574, the Supreme Court of that State say : " An acknowledgment of a subsisting debt, when a claim has been barred by the Statute of Limitations, furnishes evidence, unless explained or qualified, from which a new promise may be implied ; but the promise of an infant cannot be revived so as to sustain an action, unless there be an express confirmation or ratification, after he comes of age. This ratifica- tion must either be a direct promise or by saying, ' I ratify and confirm,' or, ' I agree to pay the debt,' or by positive acts of the infant, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute a perfect evidence of ratification as an express and unqualified promise." To the same eflect is the case of Bobbins v. Eaton, 10 B". H. 561. We will now advert to the course of judicial decisions in this State. A reference has already been made to the remarks of Chief Justice Spencer, in Sands v. Gelston, where he ob- served that he could never see the difierence, as regards the revival of a debt, between one barred by the Statute of Limita- tions and one from which the debtor had been discharged under the bankrupt or insolvent laws. He says : ■" There is no sub- stantial difference between a debt barred by the statute of limi- tations, and a debt from the payment of which the debtor is exonerated by a discharge under a bankrupt or insolvent act. A fortiori, a debt not discharged, as that of an infant, ought certainly not be placed on the same footing with one which is." 394 ILLUSTRATIVE CASES I think we shall find, on examination of the cases in this State, that there has been a great change of views and modifi- cation of opinion on the subject of infant's contracts. All the eases hold that the contract of the minor is not void, but void- able only : Goodsell v. Myers, 3 Wend. 479 ; Evertson v. Car- penter, 17 Id. 417 ; Delano v. Parke, 11 Id. 85 ; Bay v. Gunn, 1 Denio, 108 ; Taft v. Sargeant, 18 Barb. 320. Having now, as I think, conclusively established that the promissory note or contract of an infant is voidable only, and not void, and that it is a subsisting liability, which cannot, however, be enforced without some further act on his part after he attains his majority, it will be necessary, in the next place, to inquire what is the rule of law in this State as to acts or declarations of his, which may have the effect of making it legally binding upon him, so that it may be enforced in the Courts against him. It is well to bear in mind that principles of law which were recognized and enforced to protect infants against their acts of indiscretion and folly while of such years as the law assumed they could not act with prudence and dis- cretion, should not be invoked to aid them in the perpetration of gross fraud, and to wrong the innocent and confiding. Not a few have been of the opinion that a man, who, by rep- resenting himself as competent to contract, and on the faith of such representations does contract and obtain a benefit to him- self, which he retains, should not be allowed afterwards, whea that contract is sought to be enforced against him, to set up and allege that he had no legal power to make the contract, and therefore he was not liable on it. Common honesty and fair dealing among men would seem to require that he should be estopped from setting up such a defence. It is certainly the duty of Courts not to aid such defences, when their countenance can be withheld without doing violence to established principles of law. If we find that the rules of law, as expounded by the Courts and learned authors, will sustain us in overruling such a defence, we should not be slow in fol- lowing their leadings. We have seen by the earlier cases that to bind a bankrupt or infant there must be proven a precise and positive promise to pay the particular debt, after the dis- charge, or after attaining full age, and the reason assigned was, IN DOMESTIC RELATIONS. 395 that in such cases they were discharged from their liabilities, or were never subject to answer. This was certainly so as to the bankrupts, and undoubtedly so as to the infant, if his con- tract was void. He had no capacity to make it, and his state of infancy discharged him therefrom, or made it no contract. In both cases the debts were in the eye of the law as though they had never been, and therefore the Court in this respect required proof equivalent to a new contract to make them binding. But it has been found, on a more careful examination of the cases, the later ones especially, that the contracts of an infant ■were not void, but only voidable, and therefore the ground Tvas changed, and a different element was thrown in ; and the Courts have adopted the more sound and sensible rule, that ratification or confirmation of the contract made in infancy will bind the party if done after his coming of age. This new promise, positive and precise, equivalent to a new contract, is not now essential; but a ratification or confirmation of what was done during the minority is sufficient to make the con- tract obligatory. These words, ratify or confirm, necessarily import that there was something in existence to which the ratification or confirmation could attach, entirely ignoring, therefore, the notion that an infant's obligations or contracts ■were discharged or extinguished by reason of this state of in- fancy. And it was said in the case of Whitney v. Dutch, supra, that the terms of the ratification need not be such as to import a direct promise to pay. All that is necessary is that the infant, after attaining his majority, should expressly agree to ratify his contract by words, oral or in writing, or by acts which im- port a recognition and a confirmation of his promise. In Good- sell V. Myers, supra. Savage, Ch. J., said : " A ratification of an infant's contract should be something more than a mere admission to a stranger that such a contract existed ; there should be a promise to a party in interest or to his agent, or at least an explicit admission of an existing liability, from which a promise is implied." This rule is affirmed in Delano v. Blake, swpra. In the case of The Merchants' Fire Ins. Co. v. Grant 2 Edw. 544, the Yice-Chaneellor held, that a provision in a will, made after attaining full age, directing "all his just debts 396 ILLUSTRATIVE CASES and personal expenses to be first paid and satisfied," was a confirmation of a mortgage given by the testator while an infant. In Bigelow v. Granniss, 2 Hill, 120, the Court says : " In the case of infancy, there must be a new promise, or a ratification of the contract, after the defendant has attained the age of twenty-one j'ears, and so in the cases of contract. The minds of the parties must meet. A promise to a stranger will not answer." The same rule is recognized in Watkins v. Stevens, 4 Barb. 168. ^ 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 contract, when made in infancy, there must be a precise and positive promise to pay the particular debt, after attaining majority, is not sustained by the more modern decisions. A brief reference to the course of legislation and decisions in England of a more modern date, will illustrate and confirm these views. In 1828 an Act was passed, called Lord Tenterdbn's Act (9 Geo. IV., ch. 14), hav- ing reference to the acts necessary to be done to revive and give full force to the contracts barred by the Statute of Limitations and the contracts of infants. A statute had been passed in 6 Geo. IV. (65 Stat.' at Large, p. 46), in reference to bankrupts, the 131st section of which declares that no bankrupt, after his discharge, shall be liable (o pay or satisfy anj' debt, claim, or demand from which he shall have been discharged, upon any contract, promise, or agreement made or to be made after the suing out of the commission, unless such promise, contract, or agreement be made in writing, and signed by the bankrupt or some person authorized by him. The first section of the act of 9 Geo. IV. declares that, to take a debt or simple contract out of the operation of the statute of limitations, no acknowledgment or promise by words orally: shall be deemed sufiicient evidence of a new or continuino- con- tract, and to make it operative such acknowledgment or promise shall be in writing, signed by the party to be charged thereby. And section 5th enacts, that no action shall be maintained IN DOMESTIC RELATIONS. 397 ■whereby to charge any person upon any promise, made after full age, to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract, made during infancy, unless such promise or ratification shall • be in writing, to be signed by the party to be charged thereby. The framers of this Act make the same distinction as the Courts in this State, viz.: a promise to pay, and a ratification of a promise or of the contract ; the only difterence now being that in England such promise or ratification must by this statute be in writing, while with us it may rest in parol or acts. The principle is the same in both countries, and the difference is only in matter of evidence. In Hartley v. Wharton, 11 Adol. & Ellis, 934, an infant was held to have ratified a contract for the purchase of goods sold and delivered to him during infancy, by a letter or paper, which was given to the agent of the plaintiff when he called and demanded payment of the debt. He made no other answer, and the paper had no address. It was in these words : " Sir, I am sorry to give you so much trouble in calling, but I am not prepared for you, but will with- out neglect remit you in a short time. Yours respectfully, Frederick Wharton." Lord. Denman, Gh. J., says, the efiec- tive words in the act are, " promise" and " ratification." The mischief to be provided against was, not the want of particu- larity, as to the sum, but looseness of proof as to the fact of acknowledgment, and the defendant was held to have ratified the contract. Harris v. Wall, 1 Exch. 122, is an important ease, and de- serves careful consideration. It was an action of assumpsit by indorsee against the acceptor of a bill of exchange, dated 29th March, 1845, for the sum of £500. Defendant • plead that, at the time of making the promise, etc., he was an infant, under th>e age of twenty-one years. Replication, that before the commencement of the suit, and after he attained his full age of twenty-one years, he, the defendant, by a certain memorandum signed by him, ratified and confirmed the said contracts and "promises, and then promised the plaintiff to pay him the moneys mentioned in the declaration. It appeared that there ' was: .aaother acceptance of the defendant for £1500,-. but by 398 ILLUSTRATIVE CASES whom held does not distinctly appear, though little doubt can exist it was by the plaintiiF. It was proven that the defendant attained his full age on the 10th of December, 1845. The rati- fication and confirmation were sought to be made out by letters, addressed to the plaintifi", and written and signed by the de- fendant. The first, dated January 2, 1846, was in these words : " Mr, Harris : I should feel particularly obliged if you would arrange to keep the bills back for a little time, as my late brother's executors have lost their mother and only sister lately, and which prevents them from settling with you. The money will shortly be paid, say £2000. I have heard from Mr. Bur- nett this morning, and he tells me a Mr. Green has written to him for the money. Please arrange with him, and write to me by return." It is stated that the executors of defendant's brother, referred to in the foregoing letter, were the Messrs. Hall mentioned in defendant's letter of January 19, 1846. The defendant's brother had died in February, 1845, and had left him a considerable fortune, more than ample for the payment of the £2000. When the bills became due they were dishon- ored, and the defendant shortly thereafter wrote the plaintiff as follows, under date of January 6, 1846 : " The bills drawn out by Mr. Burnett and me, and my acceptances, one for £1500, and the other for £500, due on the first of January last, will most likely be settled shortly, and would have been settled before, had not a sudden accident occurred, which prevented their being paid." On the 19th of January, 1846, the defen- dant addressed the plaintift' this letter : " Sir : I beg to inform you that I have this day forwarded your letter to Messrs. Hall, and also the letters from Messrs. Green and Burnett. I cannot exactly tell you about what time they will be settled, as I have not the money myself, and, as I have told you before, have left it entirely in their hands." On the 25th of January, 1846, he again addressed the plaintiff this letter : " Sir : I received your letter of yesterday, and am sorry to find that you are not con- tented with the letter I gave you when at my house some short time ago. I have heard from the Messrs. Hall yesterday, and they said they had written to their agents in Dublin to arrange the whole thing. I therefore beg you will immediately see and inform Mr. Lazarus, who I heard from this day, of it. It IN DOMESTIC RELATIONS. 399 is not a bit of use writing these sort of letters, as payment will not be made the sooner for them. What I tell you is perfectly correct, and the matter will be settled shortly." Rolfe, B., in delivering the opinion of the Court, says: "The question is, whether, from all or any of these letters, the Court can say that the defendant ratified the promise made during his infancy to pay the £500 bill. There is some difficulty, in cases like the present, in understanding clearly what is meant by a ratifi- cation. . . . But, whatever difficulty may exist, the case clearly recognizes ratification as something distinct from a new prom- ise. Indeed, Lord Tenterden's Act (9 Geo. IV., ch. 14), which was cited in the argument before us, expressly makes a dis- tinction between a new promise and the ratification, after ma- jority, of the old promise, made during minority, in both cases requiring a written instrument signed by the party. The first step, therefore, to take towards a decision of this case, is to understand clearly what is meant by a ratification, as distin- guished from a new promise. We are of opinion (from Lord Tenterden's Act) that any act or declaration which recognizes the existence of the promise as binding, is a ratification of it. As in the case of agency, anything which recognizes as binding an act done by an agent, or by a party who has acted as agent, is an adoption of it. Any written instrument signed by the party, which, in case of adults, would have amounted to the adoption of the act of a party acting as agent, will, in the case of an infant, who has attained his majority, amount to a ratification. Applying this test to the case now before us, we think it clear that there has been a ratification. There cannot, we think, be a doubt but that if the bill in question, instead of having been accepted by an infant, had been accepted by A B on behalf of the defendant, being an adult, the letter in ques- tion would have amounted to an adoption of the agency of A B, and that the defendant would have been liable. And he must, on the same ground, be liable in the present case. He in truth treats his own act during infancy as having been done on be- half of himself, after his majority. Our decision is thus con- formable to that of the Queen's Bench, in Hartley v. Wharton, where, however, the letter of ratification was certainly stronger than the letters now before us. We should have had great 400 ILLUSTRATIVE CASES difficulty in holding that the letters of the present defendant were such as to amount to another promise ; but, according to the meaning we have attributed to the word ratification, we think that the plaintiff has made out his ratification, and is therefore entitled to judgment," We have quoted thus liberally from this case, because, we think, it states with clearness and accuracy the rules and prin- ciples applicable to cases of this character, and such as have been recognized and affirmed in our own Courts. The legislation and adjudication in England have clearly defined what is to be done, in the three classes of cases under consideration, to revive and make effective debts and contracts of infants, bankrupts, or those barred by the Statute of Limita- tions. In the latter case, they are revived and restored to their original vigor by an acknowledgment or promise ; in the case of infants, by a new promise or ratification of the acts done in infancy, after attaining full age ; and in the case of a bank- rupt, by a new promise, contract, or agreement made after the discharge. It may be conceded that the paper produced in evidence by the defendant, for want of a seal, could not operate as a deed and valid conveyance of the land therein mentioned. But clearly the defendant could have availed himself of it as a con- tract of sale of those lands, and have enforced a specific per- formance of it by a valid and effectual conveyance. All that the Statute of Fraud requires is, that a contract of sale of lands shall be in writing, and that such tvriting express the consideration and be subscribed by the party by whom the sale is to be made, or by his agent lawfully authorized. The evi- dence of the authority may be by parol. N"either a written authority nor an authority under seal is required: Worrall w. Munn, 1 Seld. 229 ; 2 R. S. 135, §§ 8, 9 ; 10 Paige, 386 ; 5 Hill, 107. But in the present case, the authority of the agent can- not be questioned. In the firet place the principal, the present plaintiff, has fully ratified the act of his agent in making the sale. The commencement of this suit to recover the balance of the purchase-money, is a full and complete ratification of the sale by the agent to this defendant. Again, the plaintiff offered on the trial to show by the agent that he was author- IN DOMESTIC RELATIONS. 401 ized by the plaintiff to sell this land for him, and did so sell it ; that he had a power of attorney from the plaintiff to sell and convey the lots, and that as such attorney he made and executed a quit-claim deed to the defendant of the lots. This testimony, which was taken on commission, was offered by the plaintiff and objected to, and excluded by the Court as imma- terial, and to which the plaintiff" excepted. The defendant accepted the deed as made out and executed by the agent, and went into possession under it, and, we are authorized to as- sume, as these facts were offered to be proved, actually sold and conveyed away a portion of the premises, and the defendant must be regarded as having acquired at least an equitable title to the lands: Worrall v. Munn, supra; Delano ?). Blake, 11 Wend. 85 ; Roof v. Stafford, 7 Cow. 179 ; Palmer v. Miller, 25 Barb. 399 ; Jones v. Phenix Bank, 4 Beld. 234 ; Am. Lead. Cas. 258. In Delano v. Blake, supra, the Court, by Judge Nelson, says : " The purchase by an infant of real estate is voidable, but it vests in him the freehold until he disagrees to it, and the continuance in possession after he arrives of age is an im- plied confirmation of the contract." So as to a lease to an infant, the continuance in possession, after the party arrives of age, is a confirmation, and he must pay the rent : Bac. Ab., tit. Infant, 611, 612. The infant in this case certainly acquired an equitable title to the real estate purchased of the plaintiff. He went into the possession and continued in possession after he attained the age of twenty-one, and bargained and sold a por- tion of the real estate, and received the consideration therefor. And these circumstances must be regarded as affording the strongest evidence of his having affirmed the purchase, and his consequent liability upon the note in suit. 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 : Boody V. McKenney, 10 Shep. 517 ; Lawson v, Lovejoy & Green, 405 ; Bryden v. Bryden, 9 Mete. 519. In this last case. Chief Justice Shaw observes, that if the infant, after coming of age, retains the property purchased by him during his minority, for 26 402 ILLUSTRATIVE CASES his own use, or sells or otherwise disposes of it, such detention, use, or disposition, which can be conscientiously done only on the assumption that the contract of sale was a valid one, and by it the property became his own, is evidence of an intention to affirm the contract, from which a ratification may be inferred, when he purchases land and goes into possession, and continues in possession after his arrival at full age, for he thereby affirms the purchase and ratifies the contract of sale: Hubbard v. Cummings, 1 Greenl. 11 ; Boody v. McKenney, supra ; Eob- bins V. Eaton, 10 K H. 561 ; Pars, on Cont. 271. In Hubbard v. Cummings, supra, Chief Justice Mellbn said, we have seen that the infant continued in possession of the lands until he sold to Cummings, and until after his arrival at full age. If an infant make an agreement and receive in- terest upon it after he is of full age, he confirms the agreement (citing 1 Verm. 132). Or if he make an exchange of land, and after he is of full age continues in possession of the land received in exchange : 2 Verm. 225. So if he purchase lands while under age, and continue in possession after he arrives at full age, it is an affirmation of the contract : Co. Lit. 3a ; 3 Com. Dig., Enfant C. 6 ; 2 Bulstr. 69 ; 2 Vent. 203 ; 3 Burr. 1710. On this point, says the Chief Justice, the authorities seem clear and decisive ; the law is plain as the fact. In bob- bins V. Eaton, supra, the Court say, some authorities confine an affirmation of a purchase of laud to an actual subsequent sale of the same by the infant after he becomes of age ; but it seems to be limiting to a very narrow point the evidence of affirmation of such a contract, and without any sufficient reason, as many other acts may constitute just as full and un- doubted evidence of a design on the part of the infant to affirm such contract as an actual sale of the land. The Court thinks the better authority to be that if the grantee, being an infant, continues in possession of the land after becoming of full age, this is an affirmance of the contract. In the case at bar the ratification was attempted to be shown by the facts, that the infant continued in possession after full age, and sold a portion of the premises, and received the consideration therefor. Within all the cases these acts amount to an unequivocal rati- IN DOMESTIC RELATIONS. 40-3 ■ fication of the contract of purchase by the infant, and settle conclusively his liability for the purchase-money. Another principle is firmly established by the cases, namely, that the infant on attaining full age cannot hold on to the purchase and thus affirm that, and plead his infancy to avoid the payment of the purchase-money : Kline v. Beall, 6 Conn. 494 ; Bigelow v. Kiuny, 3 Verm. 353 ; 4 Bacon Ab. 376; Cheshire v. Barrett, 4 McCord Law Rep. 241 ; Lynde v. Budd, 2 Paige, 191 ; Kitchen V. Lee, 11 Id. 107 ; Deason v. Boyd, 1 Dana, 45 ; Badger v. Phinney, 15 Mass. 359. In Dana v. Coombs, supra, the Court say, had the suit been upon notes given for the purchase-money of land, and the de- fendant had set up the defence of infancy, it might well have been assumed that they were given as part of the consideration of the purchase of lands, which the tenant at full age chose to retain. In Cheshire v. Barrett, supra, the Court say, a very slight circumstance demonstrating his assent, will bind an infant, or any act by which his assent is manifested. Thus, if an infent purchase land and continue in possession, after he attains full age, it will be regarded as a confirmation of the purchase, citing cases. In Lynde v. Budd, supra, Chancellor Walworth held that an infant who had purchased land, by continuing in possession after he became twenty-one years of age, and conveying the land, affirmed the whole bargain and made himself legally liable for the payment of the residue of the purchase-money. And in Kitchen v. Lee, supra, the same learned Judge declared the rule of law to be, that an infant cannot be permitted to retain the property purchased by him, and at the same time repudiate the contract upon which he received it. It is therefore entirely clear upon all the authorities that the acts of the defendant, after he attained full age, were a ratifi- cation and confirmation of the contract of purchase, so as to render him liable to pay the purchase-money. The defendant set up in his answer, but did not prove, any failure of the con- sideration of the note. The only ground of defence set forth in his answer, proved and relied upon on the trial, was that of infancy. It has been seen that that is unavailing to him. 404 ILLUSTEATIVB CASES It 13 now tirged that as the deed of the plaintiff was not tinder seal, no valid title was conveyed to the defendant, and that therefore he has ratified or eonfiirmed nothing. Several answers to these objections present themselves. In the first place, we have seen that the papor produced, if not valid as a deed, is as a contract for the sale of lands. It stated the con- sideration, the thing sold, and is signed by the party to be charged thereby, or his lawful agent. If the defendant has not got such a deed as he was entitled to under his contract, he can compel the plaintift' to give him one upon the payment of the purchase-money. He could have asked by bis answer that such a deed be given, and it could have been provided for in the judgment in this action. It was the contract of purchase which the defendant has ratified and confirmed, by such unequivocal acts as make it binding and obligatory upon him, and subjects him to the payment of the purchase-money. The judgment should therefore be reversed, and a new trial ordered ; costs to abide the event. Davis, J. The note in suit was given by defendant, for the purchase price of lands situate in Nebraska Territory, on the 6th day of January, 1857. The defendant became of age on the 25th day of February following. At the time of receiving the note, the plaintift", by his attorney, executed to defendant an instrument which, in form, purported to be a conveyance of the lands sold, but it was without seal, and, for that reason, invalid at common law as a conveyance of the title to real estate. No proof of the validity of this instrument, as a grant, under the law of Nebraska, was given on the trial. The legal presumption was, therefore, that the common law prevailed in that Territory, and that it was the same as the common law of this State : Holmes v. Broughton, 10 Wend. 75 ; Starr v. Peck, 1 Hill, 353 ; 15 N. Y. 353 ;""2 How. 201. In answer to the defence of infancy, the plaintiff offered, in substance, to show that the defendant took possession of the lands under the instrument above mentioned, and, after he became of age, sold a portion of them to one Perry, for the sura of $100, and executed to him what is called in the offer " a IN DOMESTIC RELATIONS. 405 deed not under seal," which, it rnaj- be assumed, was an instru- ment like that executed to defendant by plaintiff. This was objected to by defendant, on the ground that he obtained no title by the paper he received ; and on that ground the evidence was rejected by the Oourt. The fact of defendant's infancy at the time he gave the note having been established, it was incumbent upon the plaintiff, and competent for him, to show a ratification of the transaction by defendant after he attained his majority. The rejected olier was made with that view. The Court below has sustained the ruling at Circuit, on the assumption that " the defendant never acquired any title to the land for which he gave the note, aiid that he never conveyed any title to another to any part of it." It is not asserted that, if the legal title had passed to the defendant by the instrument, his entering into possession and eale of a part of the land after he be