Cornell University Library KF 504.E94 C.2 Cases on domestic relations; leading and 3 1924 018 828 677 atliata. New ?»* Date Due i ^U4i. y^d^' (^rx-o 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/cu31924018828677 CASES ON DOMESTIC RELATIONS LEADING AND SELECT CASES ON THE DISABILITIES INCIDENT TO INFANCY AND COVERTURE BY MARSHALL D. EWELL, M.D., LL.D. PBESrDENT ABD OSAH OP THE KENT LAW SCHOOL OF CHIOAQOi LEOTCEEB ON MEDICAL jnSISPRUDEIlOE AT THE nNIVBBSITY OF MIOHIQAIT, ETC., ETC. Students' Edition EEABEANGED WITH OMISSION OF NOTES AHD WITH ADDITIONAL CASES ON MABBIAGE, HCSBAND AND WIFE, COVEBTUBE, DIVOBCE, INFANCY, AND PABENT AND CHILD FOE USB AS A TEXT-BOOK IN THE SCHOOL OP LAW OP COLUMBIA COLLEQi: IN THE CITY OP NEW YOBK BOSTON LITTLE, BROWN, AND COMPANY 1891 Copyright, 1891, Bt Little, Brows, and Compant. Dniverbitt Press! John Wilson and Son, Cambridge. TABLE OF CONTENTS. FAGtE Infanct 1 covektdre 129 Idioct, Lttnact, etc 310 Deaf and Dumb Persons 371 Drunkenness 375 SUPPLEMENT 393 TABLE OF CASES REPOETED. rASE Abbey v. Deyo 496 Allis V. Billings 313 Arrington v. Yarbrough . . . 270 Back v. Andrew 284 Bagster (or Baxter) v. Earl of Portsmouth 360 Bainbridge v. Pickering ... 89 Baker v. Bolton 467 Bank v. Guenther 510 Bank v. Pruyn 567 Bank v. SnifBen 570 Barrett v. Buxton 375 Baxter (or Bagster) v. Earl of Portsmouth 860 Benuett v. Bennett 447 Bertles v. Nunan 479 Bigaouette v. Paulet .... 463 Blount V. Bestland 223 Bodine v. Killeen 514 Bradish v. Gibbs 132 Brower v. Fisher 371 Buckley v. Collier 190 Burke v. Allen 325 Cannel v. Buckle 129 Capel V. Powell 468 Caplinger v. Sullivan .... 267 Carrier v. Sears 824 Cheney v. Arnold 407 Coleman v. Burr 500 Cooke V. Clayworth .... 885 Corpe V. Overton 56 Cutter V. Butler 291 DEkmsoN V. Nigh 279 PAGE Desilver, Estate of . ... . . 320 Durham v. Durham .... 393 Eaton v. Hill 118 Elliott V. Horn 40 Fenton v. Reed 397 Fetrow v. Wiseman .... 13 Fitts V. Hall . 123 Gall w. Gall 417 Gilson V. Spear 113 Gore V. Gibson 381 Green w. King 284 Griswold v. Penniman .... 220 Guy V. Livesey 466 Hale v. Gerrish 94 Hantz V. Sealy 400 Hayward v. Hayward .... ♦207 Heard v. Stamford 306 Heermance v. James .... 442 Herbert v. Turball 1 Holmes v. Blogg 53 Holt J). Ward Clarencieux . . 81 Homer v. Thwing 101 Honner v. Morton 245 Howard v. Bryant 243 Hubbard v. Cummings ... 88 Jackson v. Vanderheyden . . 182 Jackson v. Winne 426 Jennings v. Rundall .... 97 Jesson V. Collins 395 Johnson v. Pie 112 VI TABLE OF CASES EEPOKTED. Kaufman v. Schoeffel . Krom V. Schoonmaker . PAGE 522 LawSon v. Lovejoy .... 92 Livingston v. Livitigston . . . 166 Longendyke v. Longendyke . . 574 Lord V. Parker 526 Magee v. Toland 185 Marston v. Norton 288 Martin v. Dwelly 170 Martin v. Martin 148 Mayfield v. Clifton 236 McCrillis ». How 593 Medbury v. Watrous .... 46 Middleborough v. Rochester . . 332 Mitchell V. Kingman .... 310 Molton w; Camroux 344 Montague v. Benedicit .... 471 Morse v. Crawford 363 Mortimore v. Wright .... 594 Mustard v. Wohlford's Heirs . 78 Nash v. Nash 226 Needles v. Needles 256 Niell V. Morley 357 Nightingale v. Withington . . 29 Noel V. Kinney 517 Penkose v. Curren 103 Perkins v. Pei-kins 577 Peters v. Fleming 34 Price V. Furman 61 Reynolds v. Reynolds . . , 480 Rippon V. Dawding 131 PAGE Roach V. Quick 45 Robertson v. Norris . . . 281 Saunderson v. Marr . . . 21 Schuyler v. Hoyle .... 193 Seaton v. Benedict .... 477 Seaver v. Phelps . . ' - . . 341 Shepard v. Shepard .... 152 Shuttlesworth ». Noyes . . 279 Sims V. Rickets 158 Skillman v. Skillman . . . 191 Standeford v. Devol . ... 231 Starr v. Peck 403 State V. Clarke 1 Suau V. CafEe . 529 Thompson v. Leech . . . . 319 Tipping V. Tipping .... . 488 Trueblood v. Trueblood . . 22 Tucker v. Moreland . . . 64 Valleatj v. Valleau . . . 413 Vasse V. Smith 108 Weedon v. Timbrell . . . 458 Whitaker v. Whitaker . . . 184 Whitaker v. Whitaker, Exeoutoi - 300 Whitmarsh v. Hall .... 51 Whitney u. Dutch .... 24 Whiton V. Snyder .... 490 Wightman v. Wightman . . 334 Winsmore v. Greenbank . . 436 Wright V. Wright .... 588 Yale v. Dederer .... 539 ZoucH V. Parsons .... 3 CASES ON DOMESTIC RELATIONS. INFANCY. . Herbebt v. Tdbball.1 (1 Keble, 589 ; s. c. Siderf . 162, pi. 17 ; Raym. T. 84. Court of King's Bench, 1663.) When an Infant arrives at Majority. An infant makes a will under the age of twenty-one years, and when of age dyeth without publication, it 's void ; but per curiam, if after age he new publisheth it, it 's good. So if the publica- tion were (as in the case at bar), on the same day that he came of age, which was the day also of his death ; also, by Keeling and Hyde, and not denied, that H., born the 16th of February, 16(^8, is, the 15th of February (1629), twenty-one years after, of full age, and whatever hour he were born is not material, there being no fraction of days. Also by Twysden, Will made on the day that H. Cometh on age, is good, which was agreed also in evi- dence to a jury at bar. The State v. Clarke. (3 Harring. 557. Court of General Sessions and Oyer and Terminer of Delaware.) When an Infant arrives at Majority. Kent, October Term, 1840. The defendant was presented by the grand jury for illegal voting at the late inspector's election. The presentment set forth these facts, to wit: That the defend- ant was born on the 7th of October, a. d. 1819, and voted at the ' The name of the defendant in variously called " Turball," "Tor- the different reports of this case is ball," and "Tuckal." 1 2 INFANCY. election held on the 6th of October, 1840, upon age. In his behalf a motion was now made to quash the presentment on the ground that it appeared from the face of it that the defendant was of full age at the time he voted, and was, therefore, not guilty. It was proved that he stated the facts to the judges of the elec- tion, a majority of whom decided that he had a right to vote. Mr. Clayton, for the defendant, cited 1 Black. Com. 497. . . . By the Court. Bayard, Chief Justice. Many persons sup- pose that the expression in the constitution relative to the quali- fications of voters is, that citizens between the ages of twenty-one and twenty-two years shall be entitled to vote without paying tax ; and on this the common but erroneous notion is, that a man must be in point of fact actually within his twenty-second year before he can vote. The premises and conclusion are both wrong. " Every free white male Citizen of the age of twenty-one years, and under the age of twenty-two years, having resided as afore- said, shall be entitled to vote without payment of any tax." (Const. Art. 4, sec. 1. ) To ascertain when a man is legally " of the age of twenty-one years, " we must have reference to the com- mon law, and those legal decisions which from time immemorial have settled this matter, in reference to all the important affairs of life. ■ When can a person make a valid will ; when can he execute a deed for land ; when make any contract or do any act which a man may do, and an infant, that is, a person under the age of twenty-one years, cannot do ? On this question the law is well settled; it admits of no doubt. A person is "of the age of twenty-one years" the day before the twenty-first anniversary of his birthday. It is not necessary that he shall have entered upon his birth, day, or he would be more than twenty-one years old. He is, therefore, of age the day before the anniversary of his birth ; and, as the law takes no notice of fractions of a day, he is necessarily of age the whole of the day before his twenty-first birthday ; and upon any and every moment of that day may do any act which any man may lawfully do. (1 Chit. Gen. Prac. 766. ) " It is to be observed that a person becomes of age on the first instant of the last day of the twenty-first year next before the anni-* versary of his birth ; thus, if a person were born at any hour of the 1st of January, a. d. 1801 (even a few minutes before twelve ZOUCH V. PAKSONS. 3 o'clock of the night of that day), he would be of full age at the first instant of the 31st of December, A. D. 1821, although nearly forty-eight hours before he had actually attained the full age of twenty-one, according to years, days, hours, and minutes; be- cause there is not in law in this respect any fraction of a day ; and it is the same whether a thing is done upon one moment of the day or another. " On the face then of this presentment, it appears that Mr, Clarke was entitled to vote on the 6th of October, being on that day of the age of twenty-one years : and the presentment, show- ing no offence^ must be quashed. ZoucH ex dem. Abbott and Hallett v. Parsons. (3 Burr. 1794; s. c. 1 W. Black. 575. Court of King's Bench, 1765.) What Deeds, Ifc., of an Infant are binding, and what void or voidable. This was a special case in ejectment ; and the question was, " whether an infant's conveyance by lease and release was abso- lutely void, or only voidable . " The cause had been twice tried. Upon the first trial an incomplete case had been drawn up and agreed upon, which having been argued on Friday, 17th June, 1763, by Mr. Sergeant Glynn, for the plaintiff, and Mr. Bunning for the defendant. Lord Mansfield then observed, that many cir- cumstances were necessary to be known, besides those contained in the case as it then stood, which was not sufficiently stated to come at the merits ; and if the parties could not agree upon the facts, the cause must be tried over again and those facts ascer- tained. It was, therefore, adjourned at that time, in order for the necessary facts and circumstances to be more completely stated; and, the parties not agreeing to them, a second trial became requisite. It was tried this second time at the Lent assizes, 1764, for Somersetshire, before Mr. Justice Yates ; when a verdict was found for the plaintiff, subject to the opinion of this Court, upon the following case : — Special case. John Bicknell, being seised in fee of the mes- suage and lands in the declaration mentioned by indenture of 4 INFANCY. lease and release, dated 24th March, 1750, and 25th March, 1751, conveyed the premises to William Cook and his heirs by way of mortgage, for . securing the repayment of 280Z, William Cook afterwards died, leaving John Lamb Cook, an infant, his eldest son and heir-at-law ; and also leaving his widow, Elizabeth Cook, and the said John Lamb Cook his joint executors and resid- uary legatees. John Bicknell, the mortgagor, afterwards brought the title- deeds of the premises to one Mr. John Williams, an attorney, and desired him to procure the sum of 400?. upon the same security, in order to pay off the said mortgage to the Cooks, and for other purposes. Williams applied to the lessors of the plaintiff, who agreed to advance the same ; and by indentures of lease and release, bear- ing date respectively on the 29th and 30th of June, 1761, between the said John Lamb Cook (then being an infant of between six- teen and seventeen years of age) and the said Elizabeth Cook, of the first part ; the said John Bicknell of the second part ; and the said Henry Abbott and Catharine Hallett (lessors of the plaintiff), of the third part; the said John Lamb Cook and Elizabeth Cook, in consideration of the sum of 280?. iri the said release mentioned to be to them paid by the lessors of the plaintiff granted and released, and the said John Bicknell, as well for the considera- tion aforesaid, as for the further sum of 120?. to him mentioned to be paid by said lessors of the plaintiff, granted, ratified, and confirmed the said premises to the said Abbott and Hallett, and their heirs, to hold to them, their heirs and assigns for ever. The said Mr. Williams, when he drew the last-mentioned mort- gage deed, apprehended that the whole principal sum of 280?. continued due to the representatives of the said William Cook, upon his said mortgage, and therefore expressed that sum to be the consideration paid to them ; but, in fact, the sum of lOOZ. only principal money, and 9?. for interest, then remained due thereon ; the said William Cook having been paid the other 180?. in his lifetime ; and accordingly, at the time of the execution of the said last-mentioned indentures of lease and release, Elizabeth Cook received 109?., being the principal and interest then remain- ing due to her son and her as representatives of her late husband, upon his mortgage; and the residue of the sum of 400?. was ••eceived by the said John Bicknell from the lessors of the plain- ZOUCH V. PAKSONS. 5 tiff. The said Jolrn Bicknell continued in possession of the premises from the time of his conveyance thereof to th^ said William Cook, until the year 1756, when ho conveyed the prem- ises, by way of mortgage for 2001., to one Thomas Thorne for a term of years, who, in March , 1762, assigned the said term to the defendant, Henry Parsons, in consideration of the sum of 22SI. in the said deed of assignment mentioned to be the princi- pal, interest, and costs then due from Bicknell to the said Thorne; but, before the assignment to the defendant, Mr. Williams, then being attorney for the lessors of the plaintiff, gave the defendant notice of the mortgage made to William Cook, and of the assignment of it to the lessors of the plaintiff. On the 27th day of March, 1764, two days before the day Df holding the assizes at Taunton, the said John Lamb Cook made an entry on the premises, in order to avoid his said lease and release to the lessors of the plaintiff: The question is, "whether the lessors of the plaintiff are entitled to recover the premises. " ^ LoED Mansfield, after stating the case minutely, now deliv- ered the resolution of the court, to the following effect : — The merits of this cause turn upon two general questions : 1. Whether this conveyance is good, and binds the infant ; 2. If it does not bind the infant, whether the defendant can take advan- tage of the infancy, and on that account object to it. As to the first, — miserable must the condition of minors be, excluded from the society and commerce of the world, deprived of necessaries, education, employment, and many advantages, if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act. The law therefore, at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts, for their own benefit, and, without prejudice to themselves,' for the benefit of others. To mention a rule or two, the reasons of which are applicable to the present case: If an infant does a right act ■frhich he ought to do, which he was compellable to do, it shall bind him ; as if he makes equal partition ; if he pays rent ; if he admits a copy-holder, upon a surrender. But there is no occa- sion to enumerate instances ; the authorities are express, and the reason decisive. " Generally, whatsoever an infant is bound to do i Arguments of counsel are omitted. — Ed. 6 INFANCY. by law, the same shall bind him, albeit he doth it without suit of law.".i The second resolution in Oonny's case^ is,- "that although the infant in the case at bar was not compellable to attorn, because the manor was not conveyed by fine ; yet, because by a mean, he was compellable to attorn, scilicet, if a fine had been levied, the attornment was good. " Portescue lays it down larger, 18 H. VI, fo. 2a: " He did but that which he ought to do; therefore the attornment'is good." "The attornment of an infant to a grant by deed is good, because it is a lawful act; albeit he be not, upon that grant by deed, compellable to attorn. " Co. Litt. 315 a. The reason is manifest; a right and lawful act is not within the reason of the privilege, which is given, to pro- tect infants from wrong. His being compellable by any mean, or in any way to do it, proves the act to be substantially what he ought to do. In the case of Holt v. Ward, the infant's being compellable by the ecclesiastical court, would have answered the objection made there, as much as her being compellable by the common law; therefore civilians were heard. To what end should the law per- mit a minor to avoid an act which in any way, through any mean, by any jurisdiction, he might be compelled to do over again, after it was undone ? it would be assisting him to vex and injure others without the least benefit to himself. Another rule, which may be collected from the books, is, " that the acts of an infant, which do not touch his interest, but take effect from an authority which he is trusted to exercise, are binding; " as where an infant patron presents ; an infant executor duly receives and acquits, pays and administers the assets ; an infant head of a cor- poration joins in corporate acts ; an infant ofiicer does the duty of an office which he may hold. A third rule, deducible from the nature of the privilege which is given as a shield, and not as a sword, is, "that it never shall be turned into an offensive weapon of fraud or injustice." As where tenant for life and infant in remainder levied a fine, the infant reversed the fine, as to himself, for the inheritance for nonage ; yet he shall be bound by his assent to the fine and joining in it, not to enter for the forfeiture ; and the fine was held good as to the estate of tenant for life, and reversed guoad the infant only. Pigot v. Russel, 2 Leon. 108, Cro. Eliz. 124, s. c. 1 Co. Litt. 172 a. a 9 Co. 85 6. ZOUOH V. PARSONS. To see whether the reasons of these rules are applicable in the \ present case, at is necessary to ascertain what is in truth the nature of this transaction. Part of the personal estate of William Cook consisted of 1091. due from John Bicknell,. secured by a mortgage in fee. His widow and infant son were joint executors and residuary legatees, and, as such, entitled to this money. The fee which descended to the son was merely as a pledge for the money, besides the money the infant had no beneficial inter- est in the land whatsoever. Upon payment he was bound to convey as the mortgagor should direct. Conveying is no more than delivering up a security when it is satisfied. The money here was paid to the proper hand. An adult, under the same circumstances, would have been guilty of a breach of trust; if he had refused, he would have been compelled to do it,, and would have been condemned in costs for refusing. By act of parlia- ment, 7 Ann.^ the infant was compellable to do it during his minority. It was much stronger here, that the money was paid by the plaintiffs, who, upon the faith of this conveyance, and the title-deeds produced by Bicknell, the mortgagor, advanced more money. The whole beneficial estate belonged to Bicknell,, after paying the 1091. The infant's conveyance was matter -of form, and in the nature of an authority, executed by Bicknell's direc- tion, in favor of a third person, who ventured his money upon the faith of it. It would be iniquitous in the infant to avoid it ; it would be unjust to set up the privilege to make an innocent man lose his money, circumvented by his confidence in the infant's concur- rence. ■ But it could not even have that effect. It would be nugatory and without any effect. For if it was avoided, he must make the same conveyance over again ; he would be com- pelled to do it. A conveyance to the defendant would be a breach of trust. By the case stated upon the ^ first trial, it did not appear that the infant's conveyance was a right act, such as he ought and was compellable to do. The court then ordered a new trial, to get a more correct state of the case. Upon the second trial it now comes out clear, that the infant was expressly a trustee for the plaintiffs. He was paid by 1 V. c. 19, § 2. " See the beginning of tihis case. 8 INFANCY. them; upon the faith of the fee being in him, they advanced more money. If the fee was in a stranger, the plaintiffs have the prior equity. If Thorne had been prior, his letting the mortgagor have the title-deeds might be sufficient to postpone him. And the defend- ant had express notice. There can be no doubt that the infant was compellable to do what he has done: Upon the first question we are all of opinion that " this conveyance binds the infant. " But supposing it not binding against him, or those who may stand in his place ; the second question is, " whether the defend- ant can take advantage of the infancy, and on that account object to the conveyance. " This depends upon two points : 1. " Whether this conveyance be void, or voidable only. 2. If voidable only, whether the infant by his entry before the assizes had absolutely avoided it. " It is not settled what is the true ground upon which an infant's deed is voidable only. " Whether the solemnity of the instrument is sufficient, " or " it depends upon the semblance of benefit to the infant from the matter of the deed upon the face of it. " As to the first, the solemnity of the instrument, we think the law is as laid down by Perkins ^ that " all such gifts, grants, or deeds made by infants which do not take effect by delivery of his hand, are void ; but all gifts, grants, or deeds made by infants by matter in deed or in writing, which do take effect by delivery of his hand, are voidable by himself,^ by his heirs, and by those who have his estate. " The words " which do take effect " are an essential part of the definition, and exclude letters of attoi-ney, or deeds which delegate a mere power and convey no interest. In Bro. Abr. title " Dwm fuit infra cetatem, " pi. 1 (which cites 46 Edw. III. 34), it is noted "that a dumfuit infra cetatem was admitted to lie of a rent ; and yet by some the grant of an infant was void and not voidable. " But (says the book) " it is not so ; for then this action would not lie. And, besides, the delivery of a deed cannot be void, but only voidable." There is no difference in this respect between a feoffment and deeds which convey an interest. The reason is the same. The delivery of the deed must be in the presence of witnesses, as much as the livery of seisin. . The ceremony is as solemn. The presumption "that the witnesses would not attest, if they saw him an infant, " holds equally as to 1 Sect. 12. ZOUCH V. PARSONS. 9 both. Littleton, who writes with great accuracy and precision, puts them both upon the same foot. He says,^ "If before the age of twenty-one, any deed or feoff- ment, grant, release, confirmation, obligation, or other writing be made by any of them, &c., all serve for nothing, and may be avoided." In 2 Inst. 673, a bargain and sale enrolled by an infant is denied to be matter of record which the infant niust avoid during his minority ; but the book says, " he may avoid it when he will. " An infant, or they who stand in his place, can- not plead " non est factum, " and give the infancy in evidence ; but they must plead the infancy specially, to avoid the deed ; ^ and that plea avoids it by relation back to the delivery. The reason of this is because it has an operation from the delivery, and not because it has the form of a deed. The deed of a, feme covert has the form, but she may plead " non est factum, " because it has no operation. The distinction between the deeds oi femes covert and of infants is important ; the first are void, the second voidable. Perkins, sect. 154,^ says: "And it is to be known that a deed cannot have and take effect at every delivery, as a deed ; for if the first delivery take any effect, the siecond is void ; as in case an infant makes a deed, and deliver the same as his deed, &c., and afterwards, when he comes of full age, delivers it again as his deed, this second delivery is void. But if a married woman deliver a bond unto me, or other writing, as her deed, this deliv- ery is merely void, and therefore, if after the death of her hus- band, she, being single, deliver the same again unto me as her deed, the second delivery is good and effectual. " Two objections were made at the bar to this proposition ; at least in its extent. 1. That leases by an infant by (Jeed, upon which no rent is reserved, are absolutely void; therefore the criterion "whether the deed is void or voidable, " does not depend upon the delivery, but upon the matter and contents, " whether it may possibly be for the infant's benefit." 2. A surrender by an infant, by deed>, is absolutely void ; therefore all deeds are not voidable only. As to the first, there are many obiter sayings, but there is no suffi- cient authority clearly to outweigh the reasons against this posi- tion. I cannot find a case adjudged singly upon this ground. What looks the likest to an authority is the opinion of Wray 1 Sect. 259. « Title " Faites," p. 32. 2 Cro. Eliz. 115; 1 Ld. Kaym. 315. 10 INFANCY. and Southcote v. Gawdy, in Humphreston's case, 16 Eliz. Moore 105, and 2 Leon. 216, i but there the judgment was upon the right and merits of the case, and not upon the point of the lease. The question as to the lease arose upon the fictitious lease to try the infant lessor of the plaintiff's title in ejectment. The two (Wray and Southcote) held "that no rent being reserved .there was no semblance of benefit to the infant," whereas, in truth, it was greatly for his benefit. The objection was turning his own privi- lege of infancy against him, to bar his recovering. Besides, the lease was by parol. But reason soon prevailed, and it has been long settled " that an infant may make a lease without rent, to try his title. " Very prejudicial leases may be made, though a nominal rent be reserved ; and there may be most beneficial considerations for a lease, though no rent be reserved. What seems decisive is " that the lessee can in no case avoid the lease on account of the infancy of the lessor, " which shows it not to be void but voidable only. And it is better for infants that they should have an election. As to the second, the authority of Lloyd v. Gregory ^ was cited, and sayings arguendo, in Thompson v. Leach. ^ The case of Lloyd v. Gregory was determined upon the special verdict by three judges, of whom Sir William Jones and Croke were two. Sir William Jones reports "that the second lease being void, made an end of the question, and that the judges gave no opinion upon the other points. " The note in Croke * does not say a word of the only ground of the judgment, but rather supposes the second lease good, by arguing, "that there being no increase of term or diminution of rent, it had no sem- blance of benefit. " ■ Oroke's note might be confounded with what passed upon the trial at bar, for Roll, states sayings to that effect upon the trial at bar. 1 B,o. Abr. 728.^ But Sir. William Jones is certainly right, for the second lease was void. And no sur- 1 V. alsos. c.inBenlo. 195; Owen, » 3 Lev. 284; 2 Ventr. 198, 199; 64; Dyer, 337 a; 1 And. 40. 3 Mod. 296, 301; 2 Salk. 618; Par- " Lloyd V. Gregory is reported in liament Cases, 150; 1 Shower, 296 Cro. Car. 502, and Sir William Jones, Comberb. 438, 468 ; Carthew, 211, 435 405, and is abridged in 2 Ro. Abr. 24, Equity Cases Abridged, p. 278, pi. 3 title " Faites," letter I. pi. 6, and 495, 3 Salk. 300 ; 12 Mod. 173 ; and Holt, title " Surrender," letter F. pi. 7, and 357, 623. in 1 Ro. Abr. 728, title "Enfants," •* Cro. Jac. 502. letter B. pi. 2 and 3. 6 PI. 3. ZOUOH V. PARSONS. 11 render express or implied in order to, or in consideration of, a new lease, would bind, if the new lease is absolutely void, for the cause, ground, and condition of the surrender fails. In Thompson- v. Leach ^ (which was a most favorable case for the plaintiff), much is said in argument " to prove the surrender of an infant or lunatic to be void, " to get rid of some doctrine laid down in Whittingham's case.^ That the remainder-man injured by the act could not avoid it. But more is said to overturn that doctrine. There is no difference in this respect, between the heir in tail and the remainder-man; neither claims under him whose act is in question, but both claim per formam doni. In Palmer, 254,^ Dodderidge denies the doctrine, and says : " He in remainder and the donor shall take advantage of infancy," which is agreeable to Littleton's reasoning, § 635; it should seem against reason, that a feoffment made by an infant should grieve or hurt another, to take from them their entry,' &c. Suppose the comparison between an infant and a man non compos just (which it is not), the point of " the surrender being void or void- able " was not necessary to the judgment in that case. I know of no judgment upon the ground "that such a surrender is void. " Most undoubtedly the other party cannot say so. If an infant was to surrender an unprofitable lease, and after acceptance the prem- ises should be burnt, overflowed, or otherwise destroyed, the lessor never could say the surrender was void. There is no instance where the. other party to a deed can object on account of infancy. Consequently the infant may let the surrender stand or avoid it, which proves it to be voidable only. If a new case should arise where it would be more beneficial to the infant "that the deed should be considered as void," if he might incur a forfeiture, or be subject to damages, or a breach of trust in respect to a third person, unless it was deemed void, the reasoa of the privilege would warrant an exception in such case to the general rule. Powers of attorney are an exception to the general rule as to deeds; and a power to receive seisin is an exception to that. The end of the privilege is "to protect infants." To that object, therefore, all the rules and the exceptions must be directed. But be the point upon the solemnity of the delivery, as it may (for * 1 Ld. Raym. 315. * In Darcy v. Jackson (to the third * 8 Co 43 ; H. 45 Eliz. point of that case). 12 INFANCY. there are respectable sayings the other way), it is not necessary to our determination. For we are all of opinion " That the 109Z. received, and the other circumstances of the transaction, show a semblance of benefit sufficient to make it voidable only, upon the matter of the conveyance." If ijt be voidable only, the second point is "whether the infant, by his entry before the assizes (which appears to be during his minority), has avoided it. " At the common law, the only conveyance in pais of the freehold and inheritance of land with transmutation of possession, was by feoffment. If it was tortious, the disseisee was obliged to enter, to revest his possessory title ; and then he might bring an action of trespass. So in the case of feoffments by an infant ; he might enter during his minority to revest his possessory right for the sake of the profits; but still the feoffment was voidable only; and he might elect to confirm it when he attained his full age. The reason why an infant cannot bring any writ analogous to a dum fuit infra cetatem during his minority, is " that his election may not be bound by the judgment. " Whether an entry be of any use in the present case is not material ; it is sufficient, that it cannot have any larger effect than in the case of a feoffment. The infant is alive, still a minor. The defendant cannot elect for him ; he is a mere stranger in every view, and has no estate affected by the conveyance. We are all of opinion that the plaintiffs ought to recover. And it is well for the defendant we are of this opinion. He would get nothing by defeating the plaintiffs here; for, finally, in another mode of proceeding, the conveyance must be confirmed ; and the defendant would be to pay all the costs here and there. It is fortunate for the suitors on both sides, when, consistent with rules and forms of proceeding, that justice, which must be the final determination of the question, may be done in the first stage of the litigation. The consequence of what has been said is, that The postea must be delivered to the plaintiffs. FETROW V. WISEMAN. 13 Fetrow V. "Wiseman, (40 Ind. 148. Supreme Court of Indiana, 1872.) Acts of Infant, when voidable and when void. Suretyship. — Affirmance of Ex- ecutory Contract. — 'Rule of Pleading and Evidence stated. Appeal from the Marion Circuit Court. BusKiRK, J. Wiseman sued John Fetrow before a justice of the peace, on the following note : — " May 6th, 1859. One day after date we or either of us promise to pay Samuel S. "Wiseman, or bearer, the sum of ninety-five dollars, for value received, without any relief from valuation or appraisement laws. "Joseph Fetrow, "John Fetrow." John Fetrow alone appeared and answered under oath, denying the execution of the note. There was jud gment for defendan t. ^ from which the plaintiff appealed-tQ _the Circuit Court. In the Circuit Court, the defendant, upon showing that the answer filed before the justice had been lost, was granted leave to file an amended answer, and therefore he filed an answer in two para- graphs. The first was the plea of non est factum ; and the second, that, at the time when the note was executed, he was under twenty-one years of age. Both pleas were sworn to. There was no reply filed to the answer. By the agreement of the parties the cause was submitted to the Court for trial, and there was a finding for the plaintiff; and, over a motion for a new trial, there was judgment on the finding. The only valid assignment of error calls in question the correctness of the ruling of the Court, in overruling the motion for a new trial. A reversal of the judgment is demanded in the first place, on the ground that there was a jtrial without an issue, for the reason that there was no reply to the answer. ^z^ The defendant, by consenting to go to trial without a reply, waived the objection, and cannot now be heard to complain of the irregularity. See Irvinson v. Van Riper, 34 Ind. 148 ; Train v. ]4 INFANCY. Gridley, 36 Ind. 241. It is next claimed that the evidence estab- lished the fact that the defendant had not executed the note, and that the finding should have been in his favor upon that issue. "We think otherwise. We are satisfied that the execution of the note by the defendant was established by a very decided prepon- derance of the evidence. We think it is shown by the evidence, that when the note was executed the defendant was an infant, and that he signed the note as the surety of his father, Joseph Fetrow. The note was executed the 6th of May, 1859. Joseph Fetrow, the principal in the note, died the 25th of March, 1864. The appel- lant was administrator. The estate was solvent, and was settled as such March 19th, 1868. The appellee failed to file the note against the estate. It is even claimed that his failure to do so releases the appellant, who was- only surety on the note. We think otherwise. The appellee might have filed his note as a claim against the estate of Joseph Fetrow, deceased, but he was not bound to do so ; and his failure to so file the claim did not defeat his right of action against the appellant. It is in the next place contended by the appellant that he is not liable upon the note, for the reason that he executed the same as the surety' of his father, when he was a minor. The position assumed is, that the contract of suretyship by a minor is abso- lutely void, and incapable of ratification upon his arriving at age. But it is maintained by the appellee that the contract was not void, but was voidable only, and therefore capable of ratification. The question is not free from doubt or difficulty, for no inconsiderable diversity of opinion is to be found in the authorities. The con- tracts of infants are divided into three classes; namely, first, those which are absolutely void; second, those which are only voidable ; and third, those which are binding. 1 Story Con. 98. The authorities all agree that contracts made by infants for neces- saries are binding. It is well settled that a contract that is void is incapable of ratification ; and it is as well and firmly settled that a contract which is voidable only may be ratified, and rendered as binding and effectual as though it had been executed by an adult. The difficulty is in determining what contracts are void and what are voidable only. In Keane v. Boycott, 2 H. Black. 511, Lord Chief Justice Eyrk laid down the doctrine, that where the Court FETROW V. WISEMAN. 15 could pronounce the contract for the benefit of the infant, as for '• necessaries, it was good ; \vhere the Court could pronounce it to j be to the prejudice of the infant, it was void ; and in those cases / where the benefit or prejudice was uncertain, the contract was voidable only. It was soon found that the above rule was subject to many modifications and exceptions. Thus in Tucker v. More- land, 10 Pet. 58,1 Story, J., in speaking for the court, said: "It is apparent, then, upon the English authorities, that however true it may be that an infant may so far bind himself by deed in certain cases," as that in consequence of the solemnity of the instrument it is voidable only, and not void ; yet, that the instru- ment, however solemn, is held to be void, if upon its face it is apparent that it is to the prejudice of the infant. "This distinction, if admitted, would go far to reconcile all the cases ; for it would decide that a deed, by virtue of its solem- nity, should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void. " The above rule has become practically obsolete, and the modern doctrine on the subject may be regarded as settled, that all the contracts of an infant not in themselves illegal, as appointing an agent, are voidable only. The law is thus laid down by Professor Parsons, in his work on " Notes and Bills : " " This incapacity or disabil- ity is intended for their benefit and protection against their own indiscretion, or the knavery of others. Hence the exception in respect to necessaries ; for these a child must have. Hence, too, , the old distinction between the void and voidable contracts of an infant, those being held to be voidable only which might be for his benefit, while those were void which could do him no good. But this distinction we suppose to be practically obsolete ; all the contracts of an infant, not in themselves illegal, being capable of ratification by him when an adult, and therefore being voidable only ; for, if once absolutely void, no ratification could give them any force. ", 1 Parsons Notes and Bills, 67; Hunt v. Massey, 5 B. & Ad. 902; Gibbs v. Merrill, 3 Taunt. 307; Williams v. Moor, 11 M. & W. 256; Harris v. Wall, 1 Bxch. 122; Reed.?;. Batchelder, 1 Met. 659; Aldrich v. Grimes, 10 N. H. 194; Edgerly v. Shaw, 5 Post. (N. H.) 514; Goodsell v. Myers, 3 Wend. 479 ; Taft v. Sergeant, 18 Barb. 320 ; Cheshire v. Barrett, 4 McCord, 241; Little v. Duncan, 9 Rich. 55. I Post. 16 INFANCY. Tyler, in his valuable work upon "Infancy and Coverture," 54, admits that the tendency of modern decisions is to hold that the contracts of infants are voidable only, if not for necessaries. But we come now to the examination of the authorities, in reference to the contract of suretyship entered into by an infant, and we are required to decide whether such contract is absolutely void, or voidable only. In Oockshott v. Bennett, 2 T. E. 763, it was held that the contract was void on the ground of fraud, and that any subsequent promise was a nudum pactum ; but the Court pro- ceeded to say that it was not void by reason of b'eing a contract of suretyship. The Court say " This is not like a security given by an infant, which is only voidable ; for that may be revived by a promise after he comes of age. In such case he is bound in equity and in conscience to discharge the debt, though the law would not compel him to do so ; but he may waive the privilege , of infancy, which the law gives him for the purpose of securing him against the impositions of designing persons. And if he choose to waive his privilege, the subsequent promise will operate upon preceding consideration. " The same ruling was made and supported by the same arguments in the cases of Hinely v, Mar- garitz, 3 Pa. St. 428; Curtin v. Patton, 11 S. & R. 30. Professor Parsons, in his work on "Contracts," says: "The better opinion, however, as may be gathered from the later cases cited in our notes, seems to be that an infant's contracts are none of them, or nearly none, absolutely void, that is, so far void that he cannot ratify them after he arrives at the age of legal major- ity. Such, at least, is the strong tendency of modern decisions. " See Fonda «). Van Home, 15 ^iVend. 631; Breckenridge's Heirs v. Ormsby, 1 J. J. Mar. 236; Scott v. Buchanan, 11 Humph. 468; Cole V. Pennoyer, 14 111. 158 ; Gummings v. Powell, 8 Tex. 80 ; The Sta,te v. Richmond, 6 Poster N. H. 232 ; Williams v. Moor, 11 M. & W. 256 ; 1 Am. L. Cas. 103. The case of Williams v. Moor, supra, is a very interesting and instructive case on the subject under discussion. Parke, B., says that much of the con- fusion in the books and adjudged cases has grown out of the improper use of the words " void " and" voidable. " He says that if by the word "void" is meant "incapable of being enforced," then the most of the contracts of infants are void ; but if by the word " void " is meant " incapable of being ratified, " then very few of the contracts of an infant are void. He further said that " the FETEOW V. WISEMAN. 17 principle on which the law allows a party who has attained his age of twenty-one years to give validity to contracts entered into during his infancy is, that he is supposed to have acquired the power of deciding for himself whether the transaction in question is one of a meritorious character by which in good conscience he ought to be bound. " We have been referred by counsel for ap- pellant to the following authorities as supporting their position, that a contract of suretyship entered into by an infant is void and incapable of being ratified when the infant has arrived to his legal majority : Maples v. Wightman, 4 Conn. 376 ; Allen v. Minor, 2 Call, 70; Wheaton v. East, 5 Yerg. 41; Merriam v. Cunning- ham, 11 Cush. 40; Burley v. Russell, 10 N. H. 184. The case in 4 Conn, (supra) is not in point, as the decision in that case was based upon a statute of that State, which provided "that no person under the government of a parent, guardian, or master shall be able to make any contract or bargain which, in the law, shall be accounted valid." The Court considered the above statute,, to use their expression, " as raising the common law, and rendering absolutely void all contracts made within its prohibition." Such ruling, based upon such a statute, was undoubtedly correct. The case in 2 Call is not much in point. In that case an infant had become security upon a twelvemonths replevy bond. He filed a bill in the high Court of Chancery, in which he alleged his infancy, and asked to be relieved from such surety- ship. The Court held that he was entitled to the relief prayed for. The case does not seem to have received much consideration. The opinion of the Court is condensed into seven lines, in large type, in a small book. In the case of Wheaton v. East (supra), the ruling was placed upon the general rule laid down by Lord Chief Justice Eyre in Keane v. Boycott, 2 H. Bl. 511, which is, "that, when the Court can pronounce the contract to be to the infant's preju- dice, it is void, and when to his benefit, as for necessaries, it is good; and, when the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the infant." The Court, after quoting the above language, proceed to say : " Thus the contract of an infant as security for another, the Court can see must be to his prejudice, for he can derive no benefit from it, therefore it is void ; but a contract for 18 INFANCY. necessaries is plainly for his benefit, and therefore it is good, and binding upon him. " As we have heretofore seen, the above rule has become obso- lete; and consequently a ruling based thereon cannot receive much consideration, as the reason upto which it is based no longer exists. The cases referred to (supra) in 11 Cush. and 10 N. H. are not in point, for the reason that the question involved in each was whether an infant, who had represented himself to be of full age, and thus procured credit, was not estopped by such representar tions from setting np his infancy in avoidance of his contract, and it was held in both cases that he was not estopped from pleading his infancy. Prom a careful examination of the mod- ern decisions and text-wrjters, we are satisfied that the following propositions jnay be regarded as settled: first, that an infant's ' contracts for necessaries are as valid and binding upon the infant as the contracts of an adult, and that such contracts cannot be disaffirmed, and need not be ratified before tiiey can be enforced ; second, the contract of an infant appointing an agent or attorney \in fact is absolutely void, and incapable of ratification; thirds I any contract that is illegal, by reason of being against a statute or public policy, is absolutely void and incapable of ratification ; fourtJi, all other contracts made by an infant are voidable only, \and may be affirmed or disaffirmed by the infant at his election, srhen he arrives at his legal majority. The second proposition may not be founded in solid reason, but is so held by all the authorities. Trueblood v. Trueblood, 8 Ind. 195 ;i Pickler v. The State, 18 Ind. 266; Knox v. Flack, 22 Pa. St. 337; Waples v. Hastings, 3 Barring. Del. 403; Doe V. Eoberts, 16 -M. & W. 778; Story Agency, 468, 474, 477; 1 Am. Lead, Cas. (3d ed.) 248. The contract of the appellant being voidable, , it cannot be enforced unless it was E^ffirmed by him after he arrived of age. It remains for us to inquire' what acts will amount to a confirma- tion, and whether, under the pleadings of this cause, proof of such acts could be made. What facts and circumstances will give binding force to the voidable acts and contracts of an infant depends very much upon"^ the nature of the act to be ratified or confirmed. Words and acta 1 Post. FETEOW V. WISEMAN. 19 which operate as a ratification of an executed contract, may fall very far short of a confirmation of one that is wholly executory on the part of the infant. To make a voidable contract of an infant binding upon him, he must expressly ratify it after h e attains to full age. A ratification will not be inferred from a mere acknowledgment of the debt ; but a promise to pay after he has arrived at full age, with a knowledge that he is not liable, will amount to a ratification. Conaway ?*. Shelton, 3 Ind. 334; Conklin v. Ogborn, 7 Ind. 593. The law is stated with great clearness and force by Tyler in his work on " Infancy and Cover- ture," where he says: "The promises of an infant for the future payment of money, and all his executory contracts which are voidable, can be ratified only by a new promise to pay, or such express acts as will be equivalent to a new contract. The most that can be said of the original contract made during infancy is, that it is a valid consideration, and will afford aliment upon which to predicate a binding undertaking of the minor after he attains to full age. The original contract not being binding on ihe infant, the new promise must possess all the ingredianta of a, ^ complete ajgreement. Anything short of this will fail to make the infant liable on the demand. So stringent is this doctrine, that a full acknowledgment or promise to pay a part, or even actual payment of a part, will not render the infant liable to pay the whole debt This view is susteiined by all the most approved au&orities of the present day. " As no agreement is complete until the minds of the parties meet, it follows that the new promise, to be binding on the infant, must be made to the creditor in person, or to his agent. The new promise of the infant must be voluntary, free, and with full knowledge that otherwise he would not be liable, and of course the promise must be made before the commencement of the suit to recover the demand. " Tyler Infancy and Coverture, 86, 87. Stoey states the rule: "In order to, ratify an executory agreement made during infancy, there must be not only an acknowledgment of primary liability, but an express promise, voluntarily and deliberately made by tlie infant upon his arriv- ing at the age of maturity, and with the knowledge that he is not legally liable. " For the convenience of future reference we cite the following authorities, which fully support the above doctrine : Goodsell V. Myers, 3 Wend. 479; Rogers v. Hurd, 4 Day, 57; 20 INFANCY. Wilcox V. Roath, 12 Conn, 550 ; Hale v. Gerrish, 8 N. H. 374 ; Bigelow V. Grannis, 2 Hill, N. Y. 120 ; Millard v. Hewlett, 19 Wend. 301 ; Watkins v. Stevens, 4 Barb. 168 ; Gay v. Ballou, 4 Wend. 403; Ford v. Phillips, 1 Pick. 202; Thompson v: Lay, 4 Pick. 48; Hubbard v. Cummings, 1 Greenl. 11 ;^ Thrupp v. Fielder, 2 Esp. 628; Harmer v. Killing, 5 Esp. 102; Whitney V. Dutch, 14 Mass. 457 ;2 Smith v. Mayo, 9 Mass. 60; Jackson V. Carpenter, 11 Johns. 539; Deason v. Boyd, 1 Dana, 45; Tucker v. Moreland, 10 Peters, 58 ;3 Hoit v. Underbill, 10 N. H. 220; Merriamw. Wilkins, 6 N. H. 432; Thornton v. Illingworth, 2 B. & C. 824; Things. Libbey, 16 Maine, 55; Curtin v. Patton, 11 S. & R. 305; Brooke v. Gaily, 2 Atk. 34; Hinely v. Marga- ritz, 3 Barr (Pa.), 428; Mayer v. McLure, 36 Miss. 389; Boody V. McKenney, 23 Maine, 517. Evidence was offered tending to prove a ratification of the contract by the appellant after he had arrived at age ; and if such evidence was admissible under the issues, and was properly considered by the Court in deciding the cause, it mayliave been sufficient to establish a ratification of the contract; but this we do not decide. Could the Court con- sider the evidence which was admitted to prove the ratification? The appellant pleaded his infancy. The plaintiff failed to reply, but the defendant consented to go to trial without a reply, and we have repeatedly held that was a waiver of 'the reply, and that we would regard the answer as denied. This is as far as we have gone. We have never held that a party who fails to answer a complaint or reply to an answer could prove any affirmative mat- ter, and do not think that such should be the rule. The Court or the opposite party would have no means of knowing what affirma- tive matter might be pleaded. The appellant having proved that he was an infant when he executed the note, he defeated a recovery thereon unless the plaintiff established a new promise. The _recoverY must b e on t he new promise, which is supported by the origin,al__considera- tion. It was, therefore, incumbent upon the plaintiff to reply a ratification. Williams v. Moor, 11 M. & W. 256; Cohen v. Armstrong, 1 M. & S. 724; Thornton v. Illingworth, , 2 B. & C. 824; Hartley v. Wharton, 11 A. & E. 934; McKyring v. Bull, 16 N. Y. 297. Where secondary evidence bearing on the issue 1 See this case (post). » See this case (post). " Post. ( SAUNDERSON V. MAEE. 21 is admitted without objection, it should be considered, because it was pertinent and tended to establish the issue, and it was the fault of the opposite party that he did not require better evi- dence. But in this case the evidence did not tend to support any issue in the cause. The question of ratification was altogether foreign to the case. Brown v. Perry, 14 Ind. 32. The infancy of the defendant having been proved, he defeated the action, and it results that the Court erred in finding for the plaintiff, for which error the judgment must be reversed. The judgment is reversed with costs ; and the cause is remanded for a new trial, with leave to the plaintiff to reply to the answer setting up infancy. /T^ Saunderson v. Maee. (1 H. Black. 75. Court of Common Pleas, 1788.) Infant's Warrant of Attorney. The defendant,* being an infant, joined with his brother in giving a. w arra,nt of attorney to the plaintiff to confess a judg- ment, which was accordingly entered up, and the defendant taken in execution. In order to procure his discharge, he alone gave a secondwarrantiiattorney, on which judgment was again entered and he again taken in execution. On this a rule was granted to show cause why the last judgment should not be set aside, and the warrant of attorney cancelled, on the ground that the defend- ant was an infant at the time of giving it. Marshall, Serjt., showed for cause a declaration of the defendant when he gave the second warrant of attorney, that he would take no advantage of his infancy, a promise to pay the debt, and some circumstances of collusion between him and his brother. This application, Marshall said, was made to the equitable jurisdiction of the Court ; and in equity the acts of an infant are often confirmed ; such as an agreement to settle an estate, and the like. But the Court said: such acts of an infant as are only voidable are allowed in equity to be confirmed, but not such as are actually 22 INFANCY. void. A warrant of attorney is of the latter description, ^ which the Court cannot make good, though there appear circumstances of fraud on the part of the infant. Rule absolute without costs. Teueblood v. Teueblood. (8 Ind. 195. Supreme Court of Indiana, 1856.) Infant's Agent. Appeal from the Vigo Circuit Court. Perkins, J. Bill in chancery, under the old practice, to com- , pel a specific performance and set aside a fraudulent deed. Bill dismissed. The facts of the case, so far as material to its deci- sion, are as follows : In 1845, William Trueblood was an infant, and owner of a piece of land. At that date .^chard-jLJCrue- blood, the father of said " William, executed a title ^^bond to one Nathan Trueblood, whereby he obligated himself to cause to be conveyed to him, said Nathan, the piece of land belonging to William, after the latter should become of age. The conveyance was to be upon a stated consideration. The bond is single, — simply the bond of Richard, — and William is nowhere men- tioned as a party, but his name is signed with his father's at the close of the condition, as may be supposed, in signification of his assent to the execution of the instrument by his father. We shall so treat his signature to the bond. After William became of age, it is claimed that he ratified the bond, and afterwards sold and conveyed the land to another, Robert Lockridge, who J. had notice, &c. This bill was filed in order to have the deed to /A Lockridge set aside, and a conveyance decreed to Nathan True- blood, pursuant to the terms of the bond. The Court below, as * See, to the same point, Com. Dig. State, 18 Ind. 266; Matteux v. St. "Enfant," c. 2; Knox v. Flack, 22 Aubin, 2 W. Black. 1133; Ashlin v. Penn. St. 337; Waples v. Hastings, 3 Langton, 4 Moore & Scott, 719 ; Kin- Han-ing. 403 ; Carnahan v. Alderdice, nersleyu. Mussen, 5 Taunt.264; Olivet 4 Barring. 99 ; Bennett v. Davis, 6 v. WoodrofEe, 4 M. & W. 650. Cow. 893. See also Pickler v. Jhe TEUEBLOOD ». TRUEBLOOD. 23 we have stated, refused to enter such a decree, and held, as coun- sel inform us, that the bond was not susceptible of ratification by William Trueblood ; and whether it was or not is the important question in the case ; for, if the bond was not susceptible of such ratification, we need not inquire into the alleged facts which it is claimed evidence that such an act had been done. As we have seen, the bond is not in terms the bond of William Trueblood. He could not, by virtue of its express provisions, be sued upon it. Where a father signs his name to artiolea of apprenticeship of his son, simply to signify his assent to them, he cannot be a party to a suit upon the articles. 5 Ind, R. 638. If the bond, then, can in any light be regarded as the contract of WiUiam Trueblood, it must be because his father may be consi dered his agent in exe - cuting it. Can, then, an infaait, after arriving at age, ratify the act of his agent performed while he was an infant ? This depends upon whether his appointment of an agent is a void or voidable ; act If the former, it cannot be ratified (5 Ind. B. 353); if the latter, it can be. Reeve'a Dom. Eel. 24:0. In the first volume of American Leading Oases (3d ed.), p. 248 et seq., the doctrine is laid down as the result of the American cases on the subject, that the only act an infant is incapable of p erforming, as to contracts, , is the appointment of an agent or attorney . Whether the doo^ trine is founded in solid reason, they admit may be doubted ; but assert that there is no doubt but that it ia law. See the cases there collected. The law seems to be held the same in England, In Doe V. Roberts, 16 M. & W. 778, a case slightly like the pres- ent in some respects, the attorney, in argument, said : " Here a tenancy has been created, either by the children, or by Hugh Thomas acting as their agent." Parke, B., replied: *'That is the fallacy of your argument. An agreement by an agent cannot bind an infant. If an infant appoints a person to make a lease, it does not bind the infant, neither does his ratification bind him. There is no doubt about the law; the lease of an infant, to be good, must be his own personal act." So, here, had the bond been the personal act of the infant, he could have ratified it. It would have been simply voidable. But the bond of his agent, or one having assumed to act as such, is void, and not capable of being ratified. See 8 Blackf. 345, The decree below must therefore be affirmed with costs. JPer Curiam. — The decree is affirmed with costs. 24 INFANCY. Whitney et al. v. Dutch et al. (14 Mass. 457. Supreme Court of Massachusetts, 1817.) Partnership. — Liability of Infant Partner. Assumpsit on a promissory note, made by the defendants to the plaintiffs, on the 18th of December, 1811, for eight hundred and forty-seven dollars and seventy-six cents. The defendant Dutch was defaulted. The defendant Green p leaded: 1. The general issue. 2, That he was under age at the time when the note was made. The plaintiffs replied, that after he came of age he agreed to and confirmed the promise ; to which he rejoined, that he did not so agree, on which also issue was joined. It appeared at the trial, which was had at the last November term in this county before Jackson, J., that Dutch and Green, while the latter was under age, had agreed to be partners, and as such had often dealt with the plaintiffs. The note in question was signed by Dutch, using the firm and style of the house of Dutch & Green, at a time when the latter was under age. In March, 1816, after Green arrived at full age, the plaintiffs applied to him for payment of the note ; whea^he acknowledged that it was due, and promised 'that, on his return to Eastport, where he resided, he would endeavor to procure the money and send it to the plaintiffs, say- ing at the same time that it was hard for him to pay it twice ; he alleging, as it was understood, that the supposed partnership had been a long time before dissolved, and that Dutch had taken the whole stock, and agreed to pay all the debts of the company. The counsel for the defendant contended that the implied power of one partner to bind the other was void in this case, as Green was a minor at the time of making the note, and therefore could not empower any agent or attorney to bind him in any manner ; that the note was therefore void as to him, and not merely void- able, and so the supposed promise could not be confirmed or rati- fied by the subsequent promise or agreement, which was proved, as above mentioned. The judge, intending to reserve the ques- tion for the consideration of the whole Court, directed a verdict for the plaintiffs on both issues, which was returned accordingly. WHITNEY V. DUTCH. 25 If the Court should be of opinion that the defendant Green was, under these circumstances, liable to the plaintiffs for the amount due on this note, the verdict was to stand, and judgment entered accordingly ; otherwise the verdict was to be set side, and a ver- dict entered for the defendants. * Pabkeb, C. J. , delivered the opinion of the Court. The ques- tion presented to the Court in this case, and which has been argued, is, whether the issue on the part of the plaintiffs is main- tained by the evidence reported. The first objection taken by the defendant's counsel is, that no express promise is proved after the coming of age of the defendant. By the authorities, a m ere acknowledgment of the debt , such as would take a case ou^ of the statute of limitations, is not a ratification of a contract made during minority. The distinction is undoubtedly well taken. The reason is, that a mere acknowledgment avoids the presumption of payment, which is created 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 acknowledges the debt or not, and some positive act or declaration on his part is necessary to defeat his power of avoiding it. But the terms of ratification need not be such as to import a direct promise to pay. All that is necessary is, that he expressly agrees to ratify his contract ; not by doubtful acts, such as 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 the present case, the defendant acknowledged that the money was due, when called upon to pay the demand, and promised that he would endeavor to procure the/^ money upon his return home, and send it to the plaintiff. This was sufficient to satisfy the jury that he assented to and ratified the original promise, for it would be a distortion of language to suppose that he meant only to endeavor to persuade Dutch to pay the money, and if he succeeded, that he. Green, would send it to the plaintiff. But the other point made in the defence is more difficult, and presents a question new to us all. This is, that the note, being signed by Dutch for Green, was void in regard to Green, because he was not capable of communicating authority to Dutch to contract for him ; and that, being void, it is not the subject of a subsequent ratification. No such question 1 Arguments of counsel are omitted. — Ed. 26 INFANCY. appears to have occurred in our courts, nor in those of England, or of the neighboring States. Partnerships have not been uncommon between adults and infants, and simple contracts, signed by one for both, undoubtedly have often been made. It is unfavorable to the principle contended for by the counsel for Green that no such case has been found ; for this silence of the books authorizes a presumption that ao distinction has been recognized between acts of this kind done by the infant himself, and those done for him by another. We must, however, examine the principles by which the oontracts of infants are governed, and see if, by any analogy to settled cases, the present defence can be maintained. It is admitted, generally, that a, contract made by an infant^ although not for necessaries, is only voidable ; and that an express adop- tion of it, after he comes of age, will make it valid from its date. Nor does the law require that he shall be sued, as upon the new promise, but gives life and validity to the old one, after it is thus assented to. But it is urged that this doctrine applies only to those contracts which are made by the infant personally, and that the delegation of power by him to another of full age to act for him is utterly void, and that no contract made in virtue of such delegation can subsist, so as to be made good by subsequent agreement or ratification. If we confine ourselves to the letter of the authorities, it would seem that this doctrine ia correct, for we find that, in the distinction made in the books between the void and voidable acts of an' infant, a power of attorney is generally selected, by way of example, as an act absolutely void, unless it be made to enable the attorney to do some act for the benefit of the infant, such as a power of attorney to receive seisin in order to complete his title to an estate. The books are not very clear upon this subject. All of them admit a distinction between void and voidable acts, and yet disagree with respect to the acts to be classed under either of thos'e heads. One result, however, in which they all appear to agree, is stated by Lord Mansfield, in the case of Zouch v. Parsons, cited in the argument, viz., that, whenever the act done may be for the benefit of the infant, it shall not be considered void ; but that he shall have his election, when he comes of age, to affirm or avoid it; and this is the only dear and definite proposition which can be extracted from the authorities. The application WHITNEY V. DUTCH. 27 of this principle is not, however, free from difficulty, for when a note or other simple contract is made by an infant himself, it may be made good by his assent, without any inquiry whether it was for his benefit or to his prejudice. For, if he had made a bad bargain in a purchase of goods, and given his promissory note for the price, and when he came of age had agreed to pay the note, he would be bound by his agreement, although he might have been ruined by the purchase. Perhaps it may be assumed, as a principle, that all simple contracts by an iafaut, which are not founded on an illegal consideration, are strictly not void, but only voidable, and may be made good by ratifica- tion. They remain a legal substratum for a future assent, until avoided by the infant; and if, instead of avoiding, he confirm them when he has a legal capacity to make a contract, they are in all respects like contracts made by adults. With respect to contracts under seal, also, they are in legal force as contracts imtil they are avoided by plea. Whether they can in all cases, as it is clear they can in some, such as leases, be ratified, so as to prevent the operation of a plea of infancy, except by deed, need not now be decided. A deed of land, by an infant having the title, would undoubtedly convey a seisin, and the grantee would hold his title under it until the infant, or some one under him, should by entry or action avoid it. Perhaps it cannot be contended, against the current of authorities, that an act done by another for an infant, which act must necessarily be done by letter of attorney under seal, is not absolutely void, although no satisfactory reason can be assigned for such a position. But as this is a point of strict law, somewhat incongruous with the general rules affecting the contracts of infants, it is not neces- sary nor reasonable to draw inferences which may be repugnant to the principles of justice which ought to regulate contracts between man and man. The object of the law, in disabling infants from binding themselves, is to prevent their being imposed upon and injured by the crafty and designing. This object is in no degree frustrated by giving full operation to their contracts, if, after having revised them at mature age, they shall voluntarily and deliberately ratify and confirm them.. It is enough that they may shake off promises and other contracts made upon valuable consideration, if they see fit to do it, when called upon to perform them. To give them still another oppor' 28 INFANCY. tunity'to retract, after they have been induced, by love of justice and a sense of reputation, to make valid what was before defec- tive, will be to invite them to break their word and violate their engagements. If it be true that all simple contracts made by infants are only voidable, the inquiry in this case should be, whether the facts stated furnish an exception to this general rule ; or whether the contract now sued is in any sense different from a simple contract. The only ground for the supposed exception is, that the note declared on was not signed by the infant himself, but by Dutch, claiming authorit;jr to sign his name as a copartner. If the authority required a letter of attorney under seal, the exception would be supported by the authorities which have been alluded to. But it is well known that copartners may, and generally do, undertake to bind each other without any express authority whatever. Indeed, the authority to do so results from the nature and legal qualities of copartnership. And without any such union of interests, one man may have authority' to bind another by note or bill of exchange, by oral, or even by implied, authority. The case of a deed, therefore, is entirely out of the question ; so that the defendant does not bring himself within the letter of the author- ities, and certainly not within the reason on which they are founded. Then, upon . principle, what difference can there be between the ratification of a contract made by the infant himself and one ,made by another acting under a parol authority from him? And why may not the ratification apply to the authority as well as to the contract made under it ? It may be said that minors may be exposed if they may delegate power over their property or credit to another. But they will be as much exposed by the power to make such contracts themselves, and more, for the person delegated will generally have more experience in business than the minor. And it is a sufficient security against the danger from both these sources that infants cannot be preju- diced ; for the contracts are in neither case binding, unless when arrived at. legal competency they voluntarily and deliberately give effect to the contract so made. And in such case justice requires that they should be compelled to perform them. Upon these principles we are satisfied with the verdict of the jury, and are confident that no principles of law or justice are opposed by confirming it. Judgment on the verdict. NIGHTINGALE V. WITHINGTON. 29 Nightingale v. Withington. (15 Mass. 272. Supreme Judicial Coui-t of Massachusetts, 1818.) Indorsement by Infant. Assumpsit on a promissory note made by the defendant, pay- able to Robert Vose or order, and by him indorsed to the - plaintiff. The action was submitted to the determination of the Court, upon the following facts agreed by the parties. The defendant made the note declared on, in consideration of the labor and services of the said Robert Vose, who then was, and yet con- tinues, under the age of twenty-one years. He indorsed the same in blank for a val uable consideratio n to one Jacob Bacon f"^^ and this latter, for a like consideration, transferred it by deliv- ery to the plaintiff, who, as well as the said Bacon, then knew the said Vose to be under age. The defendant, since the said indorsement, and after notice of it, paid the account due by the note to Reuben Vose, father of the said Robert, taking from him the following receipt or discharge; viz., "Received of A. M. Withington fifty-one dol- lars, in full payment for a note and interest given to my son Robert by him, Feb. 22, 1817. Reuben Vose. Milton, Feb. 28, 1818." The parties agreed that judgment should be rendered upon the default of the defendant, or the nonsuit of, the plaintiff, as the opinion of the Court should be upon the foregoing facts. ^ Parkbe,- C. J. That an infant may indorse a negotiable promissory note, or a bill of exchange ma de paya ble to him, so ^s to transfer the property to an indorsee for a valuable consid- eration, seems to be well settled in the law merchant, and is noways repugnant to the principles of the common law. Such indorsement is not like one made by a feme covert ; for a note payable to her becomes the property of her husband; and, further, her acts are absolutely void, whereas those of an infant are voidablp only. * Arguments omitted. 30 INFANCY. It would be absurd to allow one who has made a promise t« pay to one who is an infant, or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise ; and it would impair the value of such contracts in the hands of infants, if they were unable to raise money on them as others may do. Whether an infant may avoid an indorsement so made and oblige the promisor to pay to him, is a question not arising in this case ; for there has been no countermand or revocation of the order to pay, which is implied in his indorsement. If an action should be brought against the infant, as indorser, for the default of payment by the promisor, without doubt he may avoid such action by a plea of infancy. But that is a personal privilege which none but himself can set up, in avoidance of any contract made in his favor. It is said, however, that the promise of which this note was the evidence was made in consideration of the earnings by the labor of the infant; and that those earnings accrued to his father, who, having received payment of the note after the indorsement, has intercepted the plaintiff's right to recover. We must see what are the rights of a father over the earnings of his son, in order to determine the merits of this objection. Generally, the father, and, in case of his death, the mother, is entitled to the earnings of their minor children. This right must be founded upon the obligation of the parents to maintain and support their children ; which obligation is compensated by a right to their services, or to the fruits of them if, by their permission, they are employed by other persons. But where the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle, but that of slavery, which will continue his right to receive the earnings of the child's labor. Thus, if the father should refuse to support a son, should deny him a home, and force him to labor abroad for his own living, — or should give or sell him his time, as is sometimes done in the country (although this latter practice is certainly questionable as to any promise made in consideration of it), — the law will imply an emancipation of ihe son; and, although it will not enable him to contract to his prejudice, it will give him the benefit of such contracts as are made with him for his services ; HOLT V. CLABENOIEUX. 31 and a payment made to the son in such circumstances will be a good discharge of such contract.^ In the case before us, tie money sued for was due for the labor and service of Eobert Vose, the minor. It does not appear that the services were contracted for by the father, or that he made any claim for the money due for them. But a negotiable promissory note was given ^ to the son, who was then permitted, as far as can be discovered by the facts, to make the contract for himself, and to receive the payment. There was no prohibition by the father to make payment to the son; and it was not until after he had parted with the note for a valuq,ble consideration, — a fact known to the father, — that he received payment of the note; and even then it does not appear that he claimed the money as his right ; but that the payment was altogether voluntary by the defendant, who had full notice of the indorsement. These circumstances warrant us in deciding that such payment shall not avail the defendant. Defendant defaulted. Holt v. Ward Clarencieijx. (2 Sfcrange, 937; s. c. id. 850; 1 Barnard. K. B. 247, 277,333; 2 id. 12, 173, 176. Court of King's BencL, 1732.) Infant's Contract of Marriage. The plaintiff declared that it was mutually agreed between the plaintiff 'and defendant, that Siey should marry at a future day, which is past, and that, in consideration of each other's prom- ises, each engaged to the dther; notwithstanding which the defendant did not marry the plaintiff, but had married another, which she lays to her damage of 4,000?. The defendant, with leave of the Court, pleaded double; viz., non assumpsit, and that the plaintiff at the time of the promise was an infant of fifteen years of age. The plaintiff joins issue on the non assumpsit, and a verdict is found for her with 2,0O0Z.' damages. 1 Benson v. Kemington, 2 Mass. 113;; 1 Black. Comm. 453. 32 INFANCY. And as to the plea of infancy demurred. This cause was several times argued at the bar, 1. By Mr, Strange for the plaintiff, and Sergeant Chappie for the defend- ant, when the Court inclined strongly with the plaintiff, because, though the defendant would not have the same remedy against her by action for damages, yet they thought he might have some remedy, viz., by suit in the ecclesiastical Court to compel a performance, the plaintiff being of the age of consent ; and that would be a sufficient consideration. And therefore appointed an argument by civilians, to see what their law would determine in such a case. Upon the arguments of the civilians, no instance could be shown wherein they had compelled the performance of a minor's contract. And they who argued for the defendant strongly insisted that, in the case of a contract per verba de futuro (as this was), there was no remedy, even against a person of full age, in the spiritual Court, but only an admonition. And the only reason why they hold jurisdiction in the case of a contract per verba de prcesenti is, because that is looked upon amongst them to be ipsum matrimonium, and they only decree the formality of a solemnization in the face of the church. After their arguments, it was spoke to a fourth time by Mr. Reeve and Sergeant Eyre. And now this term the chief justice delivered the resolution of the Court. IThe objection in this case is, that, the plaintiff not being bound equally with the defendant, this is nudum pactum, and the defendant cannot be charged in this action. Formerly it was made a doubt by my Lord Vaughan, whether any action could be maintained on mutual promises to marry ; but that is now a point not to be disputed. ^ And as to the present case, we should have had no difficulty in giving judgment for the plaintiff if we could have been satisfied by the arguments of the civilians, that, as the plaintiff was of the age of consent, any remedy, though not by way of action for damages, could be had against her. But, since they seem to have had no precedent in the case, we must consider it upon the foot of the common law. And upon that the single question is, whether this contract as against the plaintiff was absolutely void. » 3 Mod. 511; Salk. 437; Carter, 236. HOLT V. CLA.EENCIEUX. 33 And we are all of opinion that this contract is not void, but only voidable at the election of the infant, and as to the person of full age it absolutely binds. The contract of an infant is considered in law as different from the contracts of all other persons. In some cases his contract shall bind him ; such is the contract of an infant for necessaries, and the law allows him to make this contract as necessary for his preservation ; and therefore in such case a single bill shall bind him, though a bond with a penalty shall not. 1 Lev. 87. Where the contract may be for the benefit of the infant, or to his prejudice, the law so far protects him as to give him an opportunity to consider it when he comes of age, and it is good or voidable at his election. Cro. Car. 502; 2 Roll. 24, 427; Hob. 69; 1 Brownl. 11; 1 Sid. 41; 1 Vent. 21; 1 Mod. 25; Sir W. Jones, 164. But though the infant has this privilege, yet the party with?^ whom he contracts has not ; he is bound in all events- And as marriage is now looked upon to be an advantageous contract, and no distinction holds whether the party suing be man or woman ; ^ but the true distinction is whether it may be for the benefit of the infant ; we think, that, though no express case upon the marriage contract can be cited, yet it falls within the general reason of the law with regard to infants' contracts. And no dangerous consequence can follow from this determina- tion, because our opinion protects the infant, even more than if we rule the contract to be absolutely void. And as to persons of full age, it leaves them where the law leaves them, which grants them no such protection against being drawn into incon- venient contracts. For these reasons we are all of opinion that the plaintiff ought to have her judgmenj; upon the demurrer. 34 INFANCY, Peters v. Fleming. (6 Meeson & Welsby, 42. Court of Exchequer, 1840.) Rtde- as to Infant's Necessaries. ^ This was an action of debt for goods sold and delivered, work and labor done, and materials found and provided, and for money fomid to be due upon an account stated. The defendant pleaded : 1. Nunquam indebitatus. 2. Infancy. The plaintiff took issue on the first plea, and to the second replied, "that the goods, &c., at the time of the sale and delivery thereof, w ere necessaries suitable to the then degree, estate, and condition of the defendant. " The rejoinder traversed that allegation, and thereupon issue was joined. The cause was tried before Vaughn, J., at the last summer assizes for the county of Cambridge, when it appeared that the action was brought to recover the amount of the follow- ing articles : — £ s. d. A fine gold ring 18 A ring, engraved crest, &o 18 A short gold watch-chain 2 2 A pair of pins 18 Ajring ....160 A ring 150 A ring repaired, new stone 3 6 £8 6 The defendant was the eldest son of a gentleman of fortune, and a member of parliament, and, at the time when the goods were supplied and the work was done,, was an undergraduate of the university of Cambridge, and resided in the imiversity. The learned judge left it to the jury to say whether, in their opinion, the articles in question were necessaries or not, and they found that they were, upon which the learned judge directed them to find a 'verdict for the plaintiff for the full amount claimed, but gave the defendant leave to move to enter a nonsuit. PETERS V. FLBftllNG. 35 Biggs Andrews having, in last term, obtained a rule a;ccOTdingly, or for a new trial, ^e'%and Byles now showed cause. The ca;se was properly left to the jury, arid they have c onie to a correct conclusion in flindingthait the articles i n cjuestlon were 'neceas?i,ries for a: p er^- son in tne deiendant's station! iri life'. If 'things of such a'nature ' are necessaries 'in any cas6, they certainly must be so for the son and heir of a gentleman of fortune and a member of parliament. The jury are the proper judges Whether th6 quality or nature of ' the ornaments supplied are suitable to the d6fehdant's rank in life. Hands v. Slaney, 8 T. R. 578, is an authority to show that the term "necessaries" is not limited to the bare' necessaries of life, but extends to such things as are necessary according to the ' s tation and degree of the party; and it 'was there held, that a minor, a captain in the army, was liable' for a livery' o'rdeired for. his servantj becEiuse the defendant was placed in ' a situation: of '. life Which required such ah attendant. Lord KEkt'ON there' says : "The geneTal.rule is clear, that infants aTe liable for necessaries ' according to their degree and statioii iri life. " Iri the present case the defendant was a person receiving a university education, and for whoSe position iri society a watch-chain and a seal would '' be proper and useful articles; the one to'tenable hiiri to pull out ' his watch, th6 other to seal his' letters to 'his' father or his' frierids. The other articles Were also proper for a person in his station of life. But it was a question for the' jury whether these articles, or any of them, were pfop'er arid necessary for the defendant, and if any of them was necessary, there canriot be a nonsuit; and the amount is too trifling for the Court to grarit a new trial, on the. ground of the verdict b'eing against the weight of evidencie. Sir WiUidm Follett, Biggs'Aridrews, andGf-unning, coritra. In this case no question ought to have been left to the jury at all, as the deferidant was riot competent to enter into a coritract for articles of this nature, which was mere ornamental articles of jewelry. An infant is inca,pable of contracting for that which is not requisite for him as a matter of necessity, such as "meat, drink, apparel, necessary physic, arid such other necessaries, and likewise for his necessary teaching." Co. Litt. 172 a. In Manby v.' Scott, 2 Sid. 113, it is said : " Our law allows many persons to make contracts in cases of necfessity who otherwise 36 INFANCY. would be disabled from doing so; and, although generally the contracts of infants are void, yet, in cases of necessity, their contract shall bind them. " So, in Brooke v. Gaily, 2 Atk. 34, Lord Hardwickb says : " The law lays infants under a disability of contracting debts, except for bare necessaries, and even this exemption is merely to prevent them from perishing. " Accord- ing to those cases, an infant cannot bind himself but for such things as are strictly necessary for him. [Parke, B. A watch may, in some cases, be a thing necessary. In Burghart v. Hall, 4 M. & W. 727, it was decided that you must lay out of the ques- tion the allowance of a suitable maintenance to the infant. The only question is, whether the things themselves are necessaries suitable to his station and degree or not. It will be very difficult to maintain that the judge can withdraw the question from the jury, whether such an article as a watch is not necessary, and if a watch be necessary, a chain must be so also, to draw it out of his pocket, for a boy of any age. ] If articles of this description are to be considered as necessaries, where is the line to be drawn? [Alderson, B. The term "necessaries," as applied to dress, may mean those things without which the party would lose caste in society. The quantity of the things furnished may be important; as, for instance, if twenty breastpins had been supplied, they could scarcely be necessary. ] What came within the term " necessaries" was, according to the old cases, a ques- tion for the judges ; and in Mackerell v. Bachelor, Goldsborough, 168, Cro. Eliz. 583, cited by Lord Ellenboeough in Maddox v. Miller, 1 M. & Sel. 738, the judges decided that some of the articles were not necessaries for the defendant, and that the action would not lie for them; although certainly in Maddox V. Miller it was held to be not so purely and exclusively a ques- tion of law as that some question should not be left to the jury ; but .there the supply was of ordinary clothes. Here none of these articles are strictly necessaries, and there could be no difficulty in laying down a rule that an infant cannot bind himself for such things as these. If an infant wants articles of such a nature, he should be made to pay for them at the time of the purchase. The rule to be collected from the books is, that an infant can bind himself only for such things as are "neces- saries, " which, according to the old law, were such things as a person could not do without. [Parke, B. No; it always had PETERS V. FLEMING. 37 been the law from the first that an infant might bind himself for what was suitable to his state and degree. That was shown in the argument in Burghart v. Hall. The law has always been the same in this respect.] But these articles were not even useful ; they were mere ornaments, and could not be necessary, in the proper sense of the word, for any one. Paeke, B. It seems to me that in this case the learned judge could not have been properly called upon by the defendant to nonsuit the plaintiff, and that there was some evidence to go to the jury in support of the allegation in the replication, that the goods were, at the time of the sale and delivery thereof, " neces- saries suitable to the then degree, estate, and condition of the defendant. " The decision of this question does not depend in any degree upon any allowance the defendant may have had from his father, and which he may have misa'pplied; that must be considered as settled by the case of Burghart v. Hall ; but the question is, whether the articles furnished are pr'operly such articles as are necessary and suitable to the station, degree, and condition of the defendant. It is perfectly clear that, from the earliest time down to the present, the word "necessaries" was' not confined, in its strict sense, to such articles as were neces- sary to the support of life, but extended to articles fit to main- tain the particular person in the state, station, and degree in life in which he is ; and therefore we must not take the word " necessaries, " in its unqualified sense, but with the qualification above pointed out. Then the question in this case is, whether there was any evidence to go to the jury that any of these articles were of that description. I think there are two that might fall under that description; viz., the breastpins and the watch-chain. The former might be a matter either of necessity or of ornament ; the usefulness of the other might depend on this, whether the watch was necessary. If it was, then the chain might become necessary itself. Now it is impossible for us to say that a judge could withdraw it from the consideration of the jury, whether a watch was not a necessary thing for a young man at college, and of the age of eighteen or nineteen, to have. That being so, it is equally, as far as the chain is concerned, a question for the jury ; there was, therefore, evidence to go to the jury. The true rule I take to be this, — that all such articles as are purely orna- mental are not necessary, and are to be rejected because they 38 INFANCY. cannot be requisite for any one; and for such matters, therefore, an infant cannot be made responsible. But, if thqy are not strictly of this description, then the question arjses, whether ,they were bought for the necessary use of tl^e party, in order to support himself properly in the, degree, state, and station, pf life in which he moved; if they were, for such articles the infant may be responsible. That must be a question for the jury, and it is for them to decide, upon due copsideration, whether the articles were of such a description or not ; and here the juj;y have found that they were. It is impossible to say that there was not some evidence, to go to, the jury in the present case; that being so, it becomes unnecessary for us to inquire as to the other matters charged f9r. Alderson, B. If it were laid down strictly that an infant can make no contract except for articles that would be necessary to keep him from famishing, that would be a rqle which would press very hardly indeed in many cases. But that is not the rule ; for a party may make contracts for necessary clothes, and -for necessary education. It has been ruled that an infant may be liable for schooling, and if it become a question, how much schooling is necessary, then you must inquire what situation .in life he is required to fill. A ;knowledge of the learned languages may be necessary for one, a mere knowledge of reading and writing may be sufficieint for another. The real question would .be, whether or not what he has contracted ior be si^oh as a per- son in his station and rank in life would require. The (articles must be for rea^l use, ,and such as would be necessary and suit- .able to the degree .a,nd ^ta,tion in life of the infa,iit. The ques- tion in these cases is this, — Were the articles bought fqr mere ornament? if so, they canncit be necessaries for any one. If, however, they ai;e bought for real use, then they may be neces- saries, provided they are .suitable to the infant's age, state, and degree. The jury then must say, whether they are such as rea- sonable persons of the age and station of the infant ;w;ould require for real iise. If so, they will be necessaries, ior which a^ in,fa,n,t will be liable. G.URNBY, B. I think my brother Parke has laid down the principle most correctly. If the articles are merely ornamental, the party cannot recover. Wha,t may be ornamental, and what ^necessary, is a question for the ji,U"y. In this case the jury haye BAINBEIDGE '«;. HCKEEING. 39 found that these articles were necessary; as to two of them it appears to us the jury were right; and it is admitted that it is not worth while to discuss the preciae amount. RoLPB, B. The difficulty in this case arises from the vague and uncertain nature of the word "necessary." I think the explanation given by my hrother .Alderson is the best that can be -given, viz,, that that is necessary which is bona fide purchased for use, and not merely for ornament, and which consorts with the condition and rank in life in which the party moves. One of these articles, at all events, and I think two, clearly might come under that description, and therefore the matter was properly left.,to,the jury. Rule discharged. BaINBEIUGE v. TrCKEBING. 2 Wm. JBJaci. JL325. *Gonrt.of ICammon.Elaas, 1779.) Infant when not liable for Tfecessaries. Datt moved to discharge the defendant on a, common iappear- ance, being held to '.special for 307. Debt to a :milliner dEor feathered caps and other omameHtal apparel; -and it being proved by a copy of the parish Tegister that the defendant was BOW under twenty years of age, and thB debt was ;of two years' standing, she living all the :time with her mother. Q-rose showed for cause that the •• Court will not discharge hfir upon motion, ibut leave her tojplead her infancy, as these things might be neeessaiy for her state and situaition dd Mfe, of which the jury are the proper judges. But by iSouLD, Justice {absence •De Geey, Chief Justice);: if an iiifant lives .wJlih her parent, who provides such apparel as appears to "the parent to be proper, so that "the child is jidt .left destitute of lol oaths, or other j-eal neces- saries of life, I apprehend that the child canndt bind herself to a stranger even for what might atherwise be allowed as .neces- saries ; for no man shall taike upon him to 'dictate to a parent what cloathing the child shall wear, at what time they shall be purchased, or of whom. All that must be letft to the discretion of the father or mother. And as there is :nat tere any pretence 40 INFANCY. but that the child was decently provided for by the mother, I think we should give no countenance to such persons as inveigle young women into extravagance under the pretext of furnish- ing them with necessaries, without the previous consent of the parent. Blackstone and Nares, Justices, of the same opinion. Huh absolute. ^i/X-fc-t^-t-^*--. ^an-t Elliott v. Horn. (10 Ala. 348. Supreme Court of Alabama, 1846.) Acts binding upon In/ants. — Conveyance by Infant Trustee. Error to the Circuit Court of Greene. Trespass to try title, by the defendants against the plaintiffs in error, to eighty acres of land in Greene County. > From a bill of exceptions it appears, that the plaintiffs, to prove title to the land sued for, produced and read a patent from the United States to one John Cobb, bearing date the 20th of August, 1826, and a deed for the said land, executed by John Cobb to Edwin Cook, dated 23d December, 1838, and then proved that Edwin Coo k died intestate, and that the plaintiffs are his c hildren and heirs-at-la w, and that the defendants, as the heirs- at-law of one T. R. Elliott, were in the possession of the land at the commencement of this suit. The defendants, to show title, produced and read a deed for the land from John Cobb, executed to one J. E. Herndon on the 2d February, 1831 , and a deed from Herndon to T. R. Elliott on 'the 7th August, 1833 ; that Elliott, under and by virtue of his deed from Herndon, went into possession, and continued in pos- session until his death; and that the defendants, as his heirs, have had possession. It was admitted that John Cobb was an infant when he executed the deed to Herndon, and was of Milage when he executed the deed to Cook; and it was proved that Elliott knew when ho purchased from Herndon that Cobb was an infant when he conveyed to Herndon. ELLIOTT V. HORN. 41 The defendant, to prove that the deed to Herndon was binding on Cobb though an infant, offered evidence to prove that the land was in fact entered by one James Cobb, and paid for by him with his own money ; that James Cobb was the father of John, who was at the time an infant of tender years, having no separate estate ; the father having a wife, and three other infant children ; that he was in indigent circumstances when he entered the land, and entered it Jn the name of his son to defraud his creditors ; t^ that Herndon was a creditor of the father, at the time he took the deed, but not at the time the land was entered; that the father sold the land to Herndon, in payment of the debt, and b y his direction, JohnCob b. the soP ) PYpmifprl t.TiP flpoH To this"^ evidence the plaintiff objected as irrelevant and immaterial, and the Court sustained the objection, holding that the facts, if proved, would not validate the deed from him to Herndon, to which the defendant excepted. The defendants also insisted that the deed from John Cobb to Edwin Cook was void by reason of the adverse possession of Elliott, at the time of such conveyance. But the Court charged the jury that, though a deed for land in the adverse possession of another was void, the facts of this case created an exception to the rule, and that an infant who had made a deed for lands dur- ing his minority might at majority disaffirm and annul it, by the execution of a deed to another ; and such deed would pass a valid title to the grantee, notwithstanding the land was then in the adverse possession of the first grantee, and might recover the land in this form of action. To all which they excepted, and which they now assign as error. ^ Oemond, J. The land in controversy was purchased of the United States by James Cobb, with his own money, but entered at the land office in the name of his son, John, then an infant of tender years, for the purpose of defrauding his creditors, he being then greatly embarrassed. This transaction is declared by the second section of the statute of frauds of this State to be utterly void, not only as to creditors, but as against subsequent purchasers, embracing the substance of the provisions of both the 13 & 27 Eliz. Tn respect to the 27 Eliz., the English decisions are uniform, ' Arguments omitted. 42 CrFANCT. that a volrarfetfy^Miweyance, although without fraud, will be set aside in faror of a subsequent paitdiaserf(v a Taluable considera- tion, though he had full notice of the preyious Yoluntary craiTey- ance. Townsend r. Windam, 2 Ves. .10 ; Doe v. Rutledge, Coiqx 711 ; Fonblanqne's Bq. , Book L _c 4^ § 13 ; . Roberts v. .Andersoii, 3 Johns. C. 376. In this case, how;eTer, the purchase by the father, in the name of tiie son, was ^^dulent as well as Tolim- taij; and, according to tiie established current of decisicra^, i would be Toid as against subsequent as well as existing cred- itors. See this question discussed by Ch- Kent, in Beade r. Livingston, 3 Johns. C. 500. So that whether the purchaser from the father, who was also a subsequent creditor, be ccHu^id- ered as a cr^Litor, pr^s a purchaser witii notice of the previous voluntary conveyance to the s. ^ Blogg, it was not shown what had been the value of the use of the premises demised, while the infant remained in possession. WHITMABSH V. HALL. 51 If that was less than the sum paid by him, it may well be that be ought to have recovered the difference. When such a quesr tion shall arise the ease of Vent v. Osgood, 19 Pick. 572, will deserve especial consideration. I think the judgment of the jDommou Pleas should be affirmed. Judgment affirmed. ^,^^^,£^/I^^^Iir r^^-eL^^ZZ:ZZ^ aY,^--CayO-^^ WhITMARSH I'.'^HAfl. ii-<^- f (3 Denio, 375. Supreme Court of New York, 1846.) Rights and Remedies of Infants upon the Avoidance of their Contracts. Error to the ;Onondaga Common Pleas. Hall, an infant, by his next friend, sued li. and J. Whitmarsh for work and labor. It was proved that the :plaintiff had worked for "the defendants J half a month under a ^contract to labot for them .for a certain/ longer period of time, and had left without cause. After the . plaintiff had proved the value of the labor, the defendants proposed to :ask^a_ witness what the plaintiff's service s were worth, taking into consideration the damages they had, sus- tained in consequence of his not fulfilling his agreement. The justice refused to receive this evidence, on the ground that"*^ the plaintiff was not, on account of his infancy, bound by his contract.; and gave judgment for the plaintiff, which the Com- mon Pleas affirmed on eertiorari. R. H. Duell, for the plaintiffs in error. J). :Gott, for the defendant in error. My the Court. Jewett, J. The evidence offered by the defendants, to show the value of the plaintiff's services, taking into consideration such damages as they had sustained in con- sequence of his putting an end to the contract by voluntarily refusing to fulfil it on his part, was properly rejected by the justice. This contract was voidable by the plaintiff by reason of his infancy, according to the general rule of law, that the contracts of infants, with certain exceptions which do not embrace this case, may be avoided by them either before or after they arrive at full age. 2 Kent's Com. 237 (5th ed.). 52 INFANCY. There is no case where it has been held that an executory contract, by an infant, not being for necessaries, is obligatory upon him. The plaintiff here has put an end to, and avoided his contract with the defendants, by voluntarily leaving their service and bringing this suit to recover the value of his services. It is insisted on the part of the defendants that the justice erred in rejecting the evidence offered by them, on the ground that, although the plaintiff was an infant and had a right to avoid his contract and recover the value of his services, yet that the defendants were entitled, if they had sustained an injury by such avoidance, to have a proper allowance therefor made against such value. In other words, it is claimed that the defendants are entitled, as a set-off against the value of the plaintiff's services, such sum as is equal to the amount of the injury sustained by them, by the avoidance of the contract by the plaintiff, which in effect would charge the infant with the performance of his contract, or with damages for its violation. The proposition is not sustained by any elementary principle known to the law, and I do not find that it has been recognized by any adjudged case, unless by that of Moses V. Stevens, 2 Pick. 332. In that case, the plaintiff, an infant, had made a special agreement to labor for the defendant a certain time for certain wages, and, before the time expired, left his service voluntarily without cause. It was held that he might recover on a quantum meruit for the services performed, and, if his employer was injured by the sudden termination of the contract without notice, a deduction should be made on that account. The learned judge, in delivering the opinion of the Court, said : " We think, the special contract being avoided, an indebi- tatus assumpsit, upon a quantum meruit lies, as it would If no contract had been made ; and no injustice will be done, because the jury will give no more than, under all circumstances, the services were worth, making any allowance for any disappoint- ment amounting to an injury which the defendant in such case would sustain by the avoidance of the contract. " ( With great respect, I am unable to yield my assent to the (soundness of the qualification annexed to the proposition. I think that the infant plaintiff, in such an action, is entitled, by well-settled principles of law, to recover such sum for his ser- HOLMES V. BLOGG. ' 53 vices as he would be entitled to if there had been no express con- tract made. A recovery is allowed upon the assumption that there is no express contract at all. The judgment under review is therefore correct. Judgment affirmed. r:z^ / Holmes v. Blogg. (8 Taunt. 508; s. c. 2 Moore, 552. Court of Common Pleas, 1818.) Rights and Remedies of Infants upon Avoidance of their Contracts. Assumpsit by the plaintiff to recover 1511. 10s. paid by him during his infancy to the defendant. Plea, general issue. At the trial before Burrough, J. , at the London sittings after last Michaelmas Term, in addition to the facts stated when this case was before the Court in Hilary term last, it appeared that when the arrangement with Taylor was entered into by the defendant, the plaintiff was not in business, having quitted it when he became of age, and that, in a subsequent conversation between the plaintiff and Taylor respecting the lease, the former declined having anything to do with it ; that the plaintiff had never slept in the house after he became of age, and that his name was soon afterwards taken off the door. For the defendant it was con- tended that, under these circumstances, the plaintiff could not recover. Burrough, J., was of the opinion that the action was well brought, but reserved the point. The jury found for the plain- tiff; and, in Hilary term last, Copley, Serjt., obtained a rule nisi to set aside this verdict, on the ground that there had been no disaffirmance of the con- tract ; and that the sum sought to be recovered, having been paid on the joint account of the plaintiff arid Taylor, this action by the plaintiff could not be maintained. Best, Serjt., in the last term showed cause, and made two points : first, that, if disaffirmance were necessary, the plaintiff, upon coming of age, had disaffirmed the contract. Second, that disalfirmance was not necessary ; and that infants were not bound 54 INFANCY. by a ny contract unless there were affii*inianc g_b Y them after eom ing to full age. In additfon to the cases cited in favor~ofThe plaintiff on the former discussion, the following authorities were relied on in support of these points. Com. Dig. tit. "Enfant," C. 2 ; Smith v. Low, 1 Atk. 489 ; Nightingale v. Earl Ferrars, 3 Peere Wms. 206 ; Lit. sect. 258. Copley, in support of the rule, argued on the point of the ])laintiff's liability for rent to the same effect, in substance, as he did in showing cause on the former occasion, referring in addition to Com. Dig. tit. "Enfant.," C. 3, and urged that, as the payment made was a partnership payment, the plaintiff's remediy was against Taylor for contribution, but that he could not recover the money so paid in the present action. Cwr. adv. vult. And now GiBBS, C. J., delivered the judgment of the Court This was an action by Holmes against Blogg for money had and received ; and the ground on which the plaintiff sought to recover is founded on the following facts. Holmesj an infant, together with Taylor, had agreed with the defendant to take the lease of his house, and to pay to him a certain sum of money for that lease. Part of the money was paid down, and security was given for the residue. In point of fact, the money paid was the money of Holmes, at ■ t hat tim e an infant. The infant avoided the lease when he came of age, as he had a right to do ; and,, having avoided the lease, he brought this action for the money paid to the defendant on the ground chat, the consideration having failed, he was entitled to recover it. There has been a good deal of argument on the subject of this avoidance, and, indeed, it has been treated as the main ques- tion; but another question arises; namely, whether, supposing the lease to have been avoided, the plaintiff could recover the money which he has paid for it during his infancy. I confess this action is quite new to me, and 1 thought, on principle, that it could not be maintained. I thought, too, that there was much in my brother Coplet'8 ar- gument, that the money paid could not be taken to be the money of the infant alone, but that it must be taken to be joint money of the infant and Taylor; and that, if it was paid as their joint HOLMES V. BfiOGG. 55" nion«y, it would be money advanced by Holmes in the first in- stance to the partnership of Holmes & Taylor, an(^ then paid as partnership money by them to Bloggi But I think further, that, supposing this money to be the sole property of the infant^ he cannot Eeoover.- ^^^ He may^ it is trucj awid the^ leas©;, he may escape the burthen of the rent, and avoid the; covenants ; but that is all he can do. He cannot,, by- puttiaig- aa epd to. thej lease, recover back any consideration which hO' has; paid for it :• the law does not enable him to do that. I cannot find this decided, for I cannot find that any such action as this has ever been brought; but Lord Mansfield has incidentally said, that such an action cannot be brought. In the famous case of Drury v. Drury, 2 Eden, 39, one of the questions was whether aft infant could, by contract, ■ bar her dower. Lord Northington thought that statute applied only to adults ; and the marriage of Lady Drury with the Earl of Buckinghamshire took place on his, opinion,; but the case afterwards came before the House of Lords upon appeal, under tht aaiP^e of The Earl o| Buckinghamshirei v, Drury, "Wilmot's Notes of Opinions and Juidgmenta, ITTj s. c. 3 Brown's Pari. Gas. 492 (2d ed.)j 8. ©. 2 Eden, 60, when the decree of Lord FoBTHtNGTOis as to this point was reversed.. Lord Mansfield there said, in delivering his opinion, *^If an infant pays money with his own hand, wi thout, a valuable considc'ration for it. h e gam ot; get it back again.'''- 2 Eden, 72, What, is the point here ? That an infant, having paid money on a. valuable consideration, an di_having partiallv enjoyed the consideration, seeks to recftivft \t hap/k^ .,s=5'»^ But the authority does, not altogether stop here. In Lord Chief Justice WJlmot'st Notes of Opinions and Judgments, 226, it appears that Lcsrd HABDWieKE and Lord Mansfield were of opin- ion with the majority of the judges; in which majority the learned authori, then Mr. Justice Wilmot, was. His note of Lord Mansfield's judgment on this point is in these words ; " If an infant pays money with his own hand, without a valuable consideration, he cannot get, it back again.'* Wilmot's Notes, 2;26 n. So that Lord Chief Justice Wilmot had himself taken a note of this declaration of Lord Mansfield, and laid it up among' his memoranda, without any expression of disapproba- tiePit He. must, therefore, be taken to have adopted it. We, 56 INFANCY. therefore, think that this action cannot be maintained, upon the ground that the infant, having paid the money with his own hand, cannot recover it back again. The other ground taken by my brother Copley, namely, that this was the money of the part- nership, my brother Burrough tells me, was not taken at nisi prius. We do not, therefore, decide on that ground. Hule absolute for a nonsuit. Dallas, J., who was absent on account of illness, concurred in this judgment. Mjs relatione Gibbs, C. J. """^ CoRPE V. Overton, (10 Bing. 252. Court of Common Pleas, 1833.) Rights and Remedies of Infants upon Avoidance of their Contracts. . r- The plaintiff, while yet a minor, in October, 1832, signed a written agreement to enter into partnership with the defendant, a tailor ; to pay him 1, 000?. for a share of the business ; and on y the 1st of January, 1833, to execute partnership deed with the • usual covenants ; " and as a deposit for the diie fulfilment of the '*^same on the part of the said A. R. Corpe, the sum of lOOZ. is now paid to the said W. Overton as per receipt, on the condition of the same sum of lOOZ. being deducted from the amount of the said intended purchase, or otherwise in default of the said in- tended purchase not being duly completed by the said A. R. Corpe according to the aforesaid terms, the said simi of lOOZ. shall be forfeited to the said W. Overton ; and he, the said W. Overton, shall be subject' to no claim or demand whatever from any person or persons for the sum of 100?., or any other amount unless any disagreement should arise between the creditors of the said W. Overton and himself, so as to prevent the fulfilment of the said intended partnership ; then, and in that case only, the said A. R. Corpe shall not be actually held liable to forfeit the said sum of 100?.; but such point to be decided by two arbitrators,- one chosen by each said party." The plaintiff, after depositing the 100?., as recited in the above agreement, discovered that he had been imposed upon by CORPE V. OVEETON. 57 exaggerated representations as to the value of the defendant's business; he, therefore, rescinded the contract as soon a s_hep^ came of age; refused to execute the partnership deed, and brought an action against the defendant for lOOZ. had and received by him to the plaintiff's use. ■ At the trial before Alderson, J., the jury found that the plaintiff had paid the deposit on a fraudulent representation in the defendant's ba lance sheet, and gave their verdict for the plaintiff, damages lO U^. Groulbum, Ser jt. , obtained a rule nisi to set aside this verdict and to enter a nonsuit, or to proceed to a new trial, on the ground that the finding of fraud was contrary to the evidenc e ; and that, if the transaction was Oqna fide, the detendant was entitled to retain the money. In Holmes v. Blogg, 8 Taunt. 508 [next case ante'], it was ex- pressly decided that if an infant pay money with his own hand, he cannot get it back again, although it were paid without a valuable consideration. Coleridge,'Serit., showed cause. Even if the transaction were bona fide, the defendant has no right to retain the money. First, because it was paid by an in- fant in pursuance of an agreement to enter into trade; and an infant not being competent to incur the liabilities of trade, the plaintiff had a right to avoid such a contract. When the con- tract was avoided, the money was held by the defendant withou t -^ c onsideration , and might be recovered in assumpsit for money had and received. Austen v. Gervas, Hob. 77; Perk. sect. 12, " Grants ;" Zouch v. Parsons, 3 Burr. 1794 [ante, p. 3] ; Vin. Abr. "Infant" (D). Secondly, because the payment made by the plaintiff is in the nature of a penalty for non-performance of a contract, and an in fant is not liable to a penalty.. Fisher v^ Mowbry, 8 East, 330. In Holmes v. Blogg, Gibbs, C. J., dropped certain general expressions which may appear adverse to the plaintiff's claim in this action; but those expressions must be taken with reference to the facts then before the Court. The infant sought to recover money which he had paid as a pre- mium upon a lease under which he had for some months enjoyed certain premises demised to him and another ; he had, therefore, received a consideration for his money, and it would have been impossible to place the defendant in the same situation as before 58 nma.NCY; the contract. Here tlie plamtiff Mas- received no exmsideratioaj, and tke defendant has; sustained, no iaajucy.. ' Goulhum, in support of his rule, relied upon Holmes v. Blogg; TiNDAL, C. J. I think we may arrive at a right detexminib' tion of this case without i mpeadhlag t he: decision i n Hol mggjb J. Blogg, becaase ths' facts, of the. two. cases are manifestly distin- guishable. In Holmes v.. Blogg the infant had paid Ibll. 9a his share of the consideration for a lease of prexnises in which he and his partner carried on the business of shoemaking. They occupied the premises fix)m March till June, when the infaint, coming of age, dissolved the partnership,, relinquished the busi- ness, and sought to recover back the money he had paid the; les- sor for his lease. In that ease, therefore, the; simi of money sought to be recovered back, as having been paid without coa-. sideration, appeared to have been paid for Sicaiiething available; that is, for three months*' enjoyment of the premises lei to himi and his partner ; and the plaintiff couid not put the lessojc agaim into the same situation. And though several ejcpressions are dropped by the chief justice in delivering his, judgment, yet, when he comes to apply them to th© subject before the Court^ he gives tbem a less extensive latitude. After referring to the opinion of Lord Mansfield, he. goes on, "^Wkat is the poinlt here ? That an infant, having paid money on a valuable con^ sideration, and having partially enjoyed the consideration, seeks to receive it back. " The ground, therefore, of the judgment in Holmes v. Blo^ was, that the infant had received something of ^alue for the money he had paid, and that he could not put the defendant in the same position as before. In the present case, the plaintiff has paid to Overton lOW., for' which he has a.ot received the slightest consideration. The money was paid, either with a view to a present or a future partnership. I understand it as having been paid with a view to a future partnership. In order to ensure performance of the contract, the infant paid down lOOZ., which he was to forfeit in case of refusal to proceed. When he came of age, he declared that he had rescinded the contract ; and it seems to me that he had a right to do so. From Hill and Whittington's Case, Dy 104, note, to Whywall v. Champion, Str. 1083, it has been always held, that an infant cannot incur liability by carrying on trade. If he cannot 1 trade, a contract to enter into trade is COKPK V, OVERTON. SB one which he maj avoid when he eomes of age. Now, when he rescinds such a contract, he hag_ a right toi rescind the whole of ^; aiiCons ^f the teraas of the contract in question being that . he should pay down lOQL, if w© were to determine that he has" a right to rescind the contract and yet not to recover the moneyr paid in advance, the proferotion which th© law extends to an infant might: be altogether eluded, by allawtng the other party to retain money sc paidi in advance., , As it is; plains therefore, that the imfant had x right to rescind the contract, the only point we have to look to with reference to Holmes v. Blogg, is whether he had derived any intermediate advantage from it Now the part- nership was not to be entered into till Janua ry, 18,33 ; and, m fee mean while, the infant had derived no advantage whatever from the contract. The case of H©.lnaes u.. Blogg fails on tiiat ground as an authority in point. But there is another ground on which' the plaintiff is entitled to recover in this action. According to the old law,aa laid' down in Co. Lit. 172 a^ an infa nt is not bound by any forfeiture an-^ ne xed to a contract, and his, obligation with a penalty, even iw:/i n ecessaries, is absolutelv voi d. What is this payment, ine^ct, but a sum handed over by way of penalty ? The principle which exempts an infant from a, penaltj must extend as well to a pen- alty enforced by handing over money in advance,, as t© penalties accruing on the breaeli of a, condition; and the rule which has been obtained in this case must, therefore, be discharged. Gaseleb, J. I consider the present case as clearly distin- guishable from Holmes v^ Blogg, otherwise I should be ^low to decide that the rule ought to be discharged. BosANQUET, J. I am also of opinion that this rule ought to be discharged ; but we are far from impeaching the judgment of the Court in Holmes v, Blogg, as applicable to the facts of that case. There the infant had paid a sum of money as part of the consid- eration for a lease of premises in which he carried on business with a partner. The premises were, in fact, occupied, for twelve weeks; but, if they had been occupied for any other period, there would have been no difference in principle, and the plaintiff could not recover back sums from the outlay of which he had derived an advantage. There is no reason, therefore, for finding fault with that deci- sion. It iSy however, a general rule, that, upon an entire failure 60 INFANCY. of consideration, a party is entitled to recover back money paid, and it cannot be said that in this respect anJ^antisJB^a-^worse situation than others. Here, the infant has derived no benefit wEatever ~from the contract, the consideration of which has wholly failed. It has been urged, indeed, that it failed by the act of the plaintiff himself ; but if the law allows him to rescind a contract from which he has derived no benefit, he must be allowed to re- scind it to all intents and purposes, and, if so, for the purpose of recovering money paid without consideration. It is true that there are strong expressions in Holmes v. Blogg; and, if they are to be taken ad literam, they may seem to contravene the opinion we are now pronouncing. We must look, however, not to the expressions alone, but to the facts to which they were applied, for general expressions must often be qualified by refer- ence to the circumstances which have called them forth; the benefit received by the infant for a certain period afforded a solid ground for the decision of that case, and no such ground exists in the present instance. The lOOZ, paid here was in the nature of a deposit ; money paid on a deposit may generally be recov- ered back where the contract goes off ; and here the contract was deposited before the infant derived any benefit from it. If the payment is to be considered in the light of a forfeiture or pen- alty, the plaintiff is still more clearly entitled to recover it under the general law which exempts him from any such liability. Alderson, J. I am of the same opinion. The parties agree, in 1832, to enter' into partnership in the following January, and lOOZ. was to be paid down, to be forfeited if the plaintiff should decline to perform his contract. Before the contract is per- formed, one of the parties revokes it, and remits the other to the same situation as if the contract had never been made. There is no ground, therefore, on which he can claim to retain money for the purpose of enforcing the execution of a con- tract which the law says an- infant shall not enter into. In this, the case is clearly distinguishable from Holmes v. Blogg. Here the infant has had no enjoyment of any advantage from the con- tract; in Holmes v. Blogg he had enjoyment, for a period, of premises demised to him ; and, so far, was in the same situation as if he had paid for expensive clothes or other articles not necessary, and after wearing them, had brought an action for the PEICE «. FUKMAN. 61 price. In such an action he could not be allowed to recover, although the tradesman, if unpaid, could not have enforced payment. Rule discharged. Price v. Tubman. /.? /fL^'-?/-*- (27 Vt. 268. Supreme Court of Vermont, 1855.) Right and Effect of Avoidance. Trover for a harness and a five-dollar bill. Plea, the general issue; trial by the Court, March Term, 1854, — Pibrpont, Judge, presiding. The plaintiff's testimony tended to prove that, about the 1st of September, 1 851, h elet the defen dant have a harness and a five-dollar billj . which at the trial could not be described or identified, injgx change for a mare of the defend - ant^; that afte r a few weeks he returned the mare to the de - fendant, and demanded ^ the harness and five dollars; that the defendant refused to deliver either, or to take back the mare, and that thereupon he turned the mare loose into the highway and left her, and soon afterwards commenced this suit ; and that at that time, and also at the time of the trial, he was a minor. The defendant offered to prove that said mare was worth much/ more than said harness and five dollars, and that said mare was\ more beneficial to the plaintiff than the property he exchanged I for her, and that said trade was in every respect fair, and to the great advantage of the plaintiff ; that the plaintiff took said mare home to his mother's and . worked her upon the farm, and drove h er very hard for seven_or eight weeks ; and that when he returned her and demanded s aid harness and five dollars , said mare was worth less than half w hat she was when he receiv ed her; that she was very much reduced in flesh and otherwise in- jured by his treatment of her, and that, during said seven or eight weeks, the plaintiff frequently expressed himself satisfied with said trade. The Court excluded this evidence, and renr^^ dered judgment for the plaintiff to recover the value of the harness only. Exceptions by the defendant. A. A. Nicholson, for the defendant. Edgerton and Allen, for the plaintiff. 62 IHTANCX. The opinion of the 'Court -was delivered by — ISHAM, J. The plaintiff has brought this action of trover to recover the value of a one-horse harness and five dollars in cur- rent money, which was given by him, then and still a minor, to the defendant in exchange for a mare. The plaintiflf has offered to return the property he received, and has disafiirmed the con- tract, and has now brought this action >to recover the value of the property which he gave on that exchange. The County Court allowed a recovery ior the 'harnesB, but di6a;llowed the five dollars in money. No exception having been taken by the plaintiff for that matter, the case now rests upon the right of the plaintiff to recover for ;the barness. As a general rule, all con- tracts of an infant, whether executed or executory, if not ior necessaries, may be avoided by him unless he has ratified them after arriving at full age. Abell .v. Warren, 4 Vt. 149. . The purchase of ithis horse was not. a contract for necessaries.; and it is one of that character which mav be xtvoided bv the in- fant. It is immaiterial "Whether the contract was advantageous for the plaintiff or not ; it is his privilege to rescind it, and in that event it cannot be enforced. In cases of sales of land, it has been held, that an infant may enter omder age, and hold and take the profits, but cannot conclusively avoid a conveyance, -till he is of age. Stafford v. Roof, 9 Cowen, 626 ; Bool v. Mix, -17 Wend. 120. But 'contracts relating to personal property may 7be avoided under age and inmiediately, and in many, if not most cases, must be exerci-sed during that period, in order to afford the iiifant that protection which it :!haB been the policy of the law to create in his behalf. Stalfford v. Roof, 9 Cowen, 626;; Shipman t). Horton, 17 Conn. 481.; Willis w. Twambly, 13 Mass. 204; 1 Amer. Lead. Cas. 259. "This right of the infant to avoid his contracts is an absolute and paramount right, superior to all equities of Other persons, and may, therefore, be exercised agninst bona fide purchasers from the grantee, and that avoidance may be by any act clearly demonstrating a renunciation of the^ contract." Vent v. Osgood, 19 Pick. 572; 1 Amer. Lead. Cas. 259. The consequences resulting from an avoidance of such a con- tract depend upon the circumstances of each particular case. Gn executory contracts, if the action is brought against the infant, he may interpose his non-age as a defence, and no recovery can PEICE V. JUKMAN. 63 be had ^gaiaist him, wherher the .action be in assumpsit, or in Case in form ex delicto. Morrill «, Adei^, 19 Vt. 605; Jennings «. -Hundall, 8 Term, 335. (But if the aontract is executed, and the action is brought by the infant to recover back the amount which he has paid, or the property which he has delivered, more difficulties arise. In the ^case of Holmes v. Blogg, 8 Taunt. 508, it was held, that where an infant had j)aid money as a premium foT a -lease, aaid enjoyed the same for a short period during his infancy, but avoided it after he became of age, he could not re- cover the sum soipaid. Upon the authority of that case were de- JBided the cases of M'Coy w. Huffman, 8 Cow. 84, and "Weeks v. -Leighton, 5 N. H. 343. But in Medburj a. Watrous, 7 Hill, HO, -the case of M'Ooy ?;. Huffman is expressly overruled ; and (the case of -Holmes «. Blogg has been virtually overruled by the ojase of Oorpe v. Overton, 10 Bing. 252. T he doctrine is how well settled bv the authorities, thati when a contract is avoided ^ by an infant, he may Tecover back iwhatever he has paid or deliy yy <.ered on it. If services have been rendered he may recover, in (quantum meruit, the value that -his services have been upon the whole state of the case ; if money or .property has been paid or de- livered, it can equally be recovered. Moses v. Stevens, 2 Pick. ..332; Ventw. Osgood, 19 Pick. 572; Voorhees ?^. Wait, 3 Green, ■-348; Judkins v. Walker, 17 Maine, 38; Whitsmarsh n. Hall, 3 -Benio, 373. But in all such cases, as a general rule, if the in- fant rescinds the contract and avoids his liability upon it, he must surrender the consideration, an d return what he has re- ^^ ceived; lor it would be unjust to permit him to recover back what he has paid or delivered, and at the same time permit him to retain the fruits of the contract which he has received. Taft & Co. V. Pike, 14 Vt. 405 ; Walker v. Perrin, 4 Vt. 523 ; Weed V. Beebe, 21 Vt. 495'; Hillyer t). Bennett, 3 Edwards, Ch. 222; Kitchen v. Lee, 11 Paige, 107. This rule, however, is subject to an important qualification. A distinction is to be observed between the case of an infant in possession of such property after age, and when he has lost, sold, or destroyed 'the property ^during his minority. In 4he former case, if he has put 'the property out of his power, he has ratified the contract, and ren- dered it obligatory upon him ; in the latter case the property is to be restored if it be in his possession and control. J,i the prop- erty is not in his hands, nor under his control, that obligation 64 INFANCY. ceases. To say that an infant cannot recover back his property which he has parted with under such circumstances, because by his indiscretion he has speiit, consumed, or injured that which he received, would be making his w ant of discretion the mean s CTlTSfjtin ding him to all his improvident contracts , and deprive him VV of that protection which the law designed to secure to him. The authorities, we think, fully sustain this qualification of that rule. Fitts v. Hall, 9 N. H. 441; Bobbins v. Eaton, 10 N. H. 662; Boody v. McKenney, 23 Maine, 517, 525, 526; 1 Amer. Lead. Cas. 260, in notes by Messrs. Hare &, Wallace. On these general principles the plaintiff can sustain this action to recover the value of this harness, as there was an offer to re- turn the property which was in his possession and under his con- trol ; and this right is unaffected by the circumstance, that the mare was not in as good condition, or of the value, that it was when received by him. The eviden ce, therefore, showing that the mare had depre- ciated in value while in the plaintiff's hands, ^wasjnadiaiaaible ^,,— - f or the purpose of defeating a recovery in this action, or for the "^ p urpose of reducing the dama gea^ The infant is no more liable for the use, than he would be for the purchase, of the mare; particularly as there is nothing in the case showing that he was personally benefited by it, or that in any point of view it could be deemed necessaries for which he would be liable. The judgment of the County Court is aflfirmed. y^i^Ui,^,-^^ yfl.-=-*-- dL^i-,^ fA^' e^^-— -— -^ K^ '^ /*~»-'-^ -w--..-'*-*^-*^ -*^t<,'T^._-t„«^ t-«^t^/\t— »-»-(5c^ TuCKEB et al. V. Moeeland. f^ ^r>c/L^/t,y (10 Peters, 58. Supreme Court of the United States, 1836.) What amounts to a Disaffirmance of an Infant's Deed. — Acts void and voidable. — Voidable Acts, how confirmed and avoided. — Effect of Fraud. Mr. Justice Story delivered the opinion of the Court, i This is a writ of error to the Circuit Court for the county of "Washington, and District of Columbia. The original action was an ejectment 1 The facts of the case and requests in the opinion of the Court, the re- to charge, &o., sufficiently appearing porter's statement is omitted. TUCKER V. MORKLAND. 65 brought by the plaintiff in error against the defendant in error ; and both parties claimed title under Eichard N. Barry. At the trial of the cause upon the general issue, it was admitted, that Richard N. Barry, being seised in fee of the premises sued for, on the first day of December, 1831, executed a deed thereof to Rich- ard Wallach. The deed, after reciting that Barry and one Bing were 'indebted to Tucker and Thompson in the sum of three thousand two hundred and thirty-eight dollars, for which they had given their promissory note, payable in six months after date, to secure which the conveyance was to be made, conveyed the premises to Wallach, in trust to sell the same in case the debt should remain unpaid ten days after the first day of Decem- ber then next. The same were accordingly sold by Wallach, for default of payment of the note, on the 23d of February, 1883, and were bought at the sale , by Tucker and Thompson, who re- ceived a deed of the same on the Yth of March of the same year. It was admitted that, after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February, 1833, when he executed a deed, in- cluding the same and other parcels of land, to his mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of one thousand one hundred and thirty-eight dollars and sixty-one cents, which he owed his mother; for the recovery of which she had instituted a suit against him, and of other sums advanced to him, a particular account of which had not been kept, and of the further sum of five 'daUsarsfJ" At the time of the sale of Wallach, the defendant gave public notice of her title to the premises, and she publicly claimed the same as her absolute right. The defendant further gave evidence at the trial to prove that at the time of the execution of the deed by Barry to Wallach, he, Barry, was an infant under twenty-one years of age, and at the time of the execution of the deed to the defendant, he was of the full age of twenty-one years. Upon this state of the evidence the counsel for the defendant prayed the Court to in- struct the jury, that if, upon the whole evidence given as aforesaid to the jury, they should believe the facts to be as stated a,s afore- said ; then the deed from the said Wallach to the plaintiffs did not convey to the plaintiffs any title which would enable them to sustain the action. This instruction the Court gave ; and this constitutes the exception now relied on by the plaintiff in error, 5 66 lOTANCY. in his first bill of exceptions. Some criticism has been made upon the language in which thisi instruction is couched. But, in substance, it raises the question which has been so fully argued at the bar, as to the validity of the plaintiff's title to recover, if Bai-ry was an infant at the time of the execution of his deed to Wallach. If that deed was originally void,, by reason of Barry's infancy, then the plaintiff, who must lecover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and not void, and yet it has been avoided by the subsequent conveyance to the. defendant by Barry, then the same conclusion follows. And these,, accordingly, are the considerations which are pre- sented under the present instruction. In regard to the point whether the deed of lands by an infant is void or voidable at the common law, no inconsiderable diversity of opinion is to be found in the authorities. That some deeds or instruments under seal of an infant are void, and others voidable,, and others valid and absolutely obligatory, is not doubted. Thus a single bill under seal given by an infant for necessaries is absolutely bind- ing upon him ; a bond with a penalty for necessaries is void, as apparently to his prejudice ; and a lease, reserving rent is voidable only.^ The difficulty is in ascertaining the true principle upon which these distinctions depend. Lord Mansfield, in Zouch v. Parsons, 3 Burr. 1804, said, that it was not settled what is the true ground upon which an infant's deed is voidable only ; whether the solemnity of the instrument is sulScient, or it depends upon the semblance of benefit from the matter of the deed upon the face of it. Lord Mansfield, upon a full examination of the authorities on this occasion, came to the conclusion (in which the other judges of the Court of King's Bench concurred) that it was the solemnity of the instrument and delivery by the infant himself, and not the semblance of benefit to him, that consti- tuted the true line of distinction between void and voidable deeds of the infant. But he admitted that there were respectable sayings the other way. The point w;as held by the Court not necessary to the de- termination of that case, because, in that case, the circumstances' 1 See Russell v. Lee, 1 Lev. 86; lis v. Dineley, 3 M. & Selw. 470; Co. Fisher i\ Mowbray, 8 Kast. 3.30; Bay- Lit. 172 a. TUCKEK V. MOEELAND. 67 stowed that there was a semblance of benefit sufficient to make the deed voidable only, upon the matter of the conveyance. There can be little doubt that the decision in Zouch v. Parsons was perfectly correct; for it was the case of an infant mortgagee, releasing by a lease and release his title to the premises, upon the payment of the mortgage money by a second mortgagee, with the consent of the mortgagor. It was precisely such an act as the infant was bound to do ; and would have been compelled to do by a court of equity, as a trustee of the mortgagor. And certainly it was for his interest to do what a court of equity would by a suit have compelled him to do.^ Upon this occasion, Lord! Mansfield and the. Court approved of the law as laid down by Perkins (Sect. 12)^ that " all ' such gifts,, grants, or deeds made by infants, which do not take effect by delivery of his hand, are void. But all gifts, grants, or deeds made by infants by matter of deed or in writing, which do take effect by delivery of his hand,, are voidable by himself, by his heirs, and by those who have his estate ; " and in Lord Mansfield's view, the words " which doi take effect" are an essential part- of the definition; and exclude letters of attorney or deeds which delegate a mere power and convey no interest. ^ So that, according to Lord Mansfield's opinion, there is no difference between a feoffment and any deeds which convey an interest. In each case, if the infant makes a feoffment or delivers a deed in person, it takes effect by such de- livery of his hand, and is voidable only. But if either be done by letter of attorney from the infant, it is void^ for it does not take effect by a delivery of his hand. There are other authorities, however, which are at variance with this doctrine of Lord Mansfield, and which put a different interpretation upon the language of Perkins. According to the latter, the semblance of benefit to the infant or not is the true ground of holding his deed voidable or void. That it makes no difference whether the deed be delivered by his own hand or not; but whether it be for his benefit or not. If the former, then it . is voidable ; if the latter, then it is void. And that Perkins in the passage above stated, in speaking of gifts and 1 See v. Handcock, 17 Ves. " See Saunders v. Marr, 1 H. Black. 383; 1 Fonbl. Eq., b. 1, eh. 2, s. 5, 75. and notes; Co. Lit. 172 a; Com. Dig^^ " Enfant," B. 5. 68 INFANCY. grants taking effect by the delivery of the infant's hand, did not refer to the delivery of the deed, but to the delivery of the thing granted ; as, for instance, in the case of a feoffment to a delivery of seisin by the infant personally; and in case of chattels by a delivery of the same by his own hand. This is the sense in which the doctrine of Perkins is laid down in Sheppard's Touch- stone, 232.1 Of tijis latter opinion, also, are some other highly respectable text-writers ; ^ and perhaps the weight of authority, antecedent to the decision in Zouch v. Parsons, inclined in the same way. Lord Chief Justice Eyre, in Keane v. Boycott, 2 Hen. Black. 515, alluded to this distinction in the following terms. After having corrected the generality of some expres- sions in Litt s. 259, he added : " We have seen that some contracts of infants, even by deed, shall bind them; some are merely void, namely, such as the Court can pronounce to be to their prejudice ; others, and the most numerous class, of a more uncertain nature as to benefit or prejudice, are voidable only; and it is in the election of the infant to affirm them or not. In Roll. Abridg. , title ' Enfants, ' 1 Roll. Abridg. 728, and in Com. Dig. under the same title, instances are put of the three different kinds of good, void, and voidable contracts. Where the contract is by deed, and not apparently to the prejudice of the infant, Comyn states it as a rule that the infant cannot plead non est factum, but must plead his infancy. It is his deed ; but this is a mode of disaffirming it. He, indeed, states the rule generally, but I limit it to that case in order to reconcile the doctrine of void and voidable contracts. " A doctrine of the same sort was held by the Court in Thompson v. Leach, 3 Mod. 310 ; in Fisher v. 1 See Dearborn v. Eastman, 4 N. H. ^ See Preston on Conveyancing, 441, where it was held that, if an in- 248 to 250; Com. Dig. "Enfant," C. 2; fant make a conveyance in pais of his Shep. Touch. 232, and Acherly's note; land in any other manner than by a Bac. Abridg. " Infancy," 1. 3 ; English feoffment, an entry into the land by Law Journal for 1804, p. 145; 8 Amer. the grantee may be treated by the in- Jui-ist, 327. But see 1 Powell on fant as a trespass, without any entry Mortg. by Coventry, note to p. 208; on his part to avoid the conveyance; Zouch i». Parsons, 1 W. Black. 575; that a feoffment by an infant is only EUsley's notes (h) and («) ; Co. Lit. voidable, but all other conveyances 51, 6, Harg. note, 331 ; Holmes v. in pais stand on the same ground as Blogg, 8 Taunt. 508; 1 Fonbl. Eq., executory contracts, and are void or b. 1, ch. 11, s. 3, and notes iy),{z), voidable at his election. (a), (6). TUCKEK V. MOEELAND. 69 Mowbray, 8 East, 330 ; and Baylis v. Dineley, 3 M. & Selw. 477. In the two last cases the Court held that an infant cannot bind himself in a bond with a penalty, and especially to pay interest. In the -case of Baylis v. Dineley, Lord Ellenboeough said : " In the case of the infant lessor, that being a lease, rendering rent, imported on the face of it a benefit to the infant, and his accept- ing the rent at full age was conclusive that it was for his benefit. But how do these authorities affect a case like the present, where it is clear upon the face of the instrument that it is to the prejudice of the infant, for it is an obligation with a penalty and for the payment of interest ? Is there any authority to show that if upon looking to the instrument, the Court can clearly pro- nounce that it is to the infant's prejudice, they will, neverthe- less, suffer it to be set up by matter ex post facto after full age ? " And then, after commenting on Keane v. Boycott and Fisher v. Mowbray, he added : " In Zouch v. Parsons, where this subject was much considered, I find nothing which tends to show that an infant may bind himself to his prejudice. It is the privilege of the infant that he shall not ; and we should be breaking down the protection which the law has cast around him if we were to give effect to a confirmation by parol of a deed like this made during his infancy." It is apparent, then, upon the English au- thorities, that however true it may be that an infant may so far bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument, it is voidable only, and not void; yet that the instrument, however solemn, is held to bd void, if upon its face it is apparent that it is to the prejudice of the infant. This distinction, if admitted, would go far to recon- cile all the cases ; for it would decide that a deed by virtue of its solemnity should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void.^ The same question has undergone no inconsiderable discussion in the American Courts. In Oliver v. Houdlet, 13 Mass. 239, the Court seemed to think the true rule to be that those acts of an infant are void which not only apparently but necessarily operate to his prejudice. In Whitney v. Dutch, 14 Mass. 462, the same Court said that, whenever the act done may be for the benefit of the infant, it shall not be considered void ; but that he shall have his election, when he comes of age, to affirm or avoid it. And 1 See Bac. Abridg. "Infancy & Age," l.'S, 1. 7. 70 INFANCY. they added that this was the only clear and definite proposition which can be extracted from the authorities.^ In Conroe v. Bird- sail, 1 Johns. Cas. 127, the Court approved of the doctrine of Perkins, § 12, as it was interpreted and adopted in Zouch v. Parsons ; and in the late case of Roof v, Stafford, 7 Cowen, 180, 181, the same doctrine was fully recognized. But in an inter- mediate case, Jackson v. Burchin, 14 Johns. 126, the Court doubted whether a bargain and sale of lands by an infant was a valid deed to pass the land, as it would make him stand seised' to the use of another. And that doubt was well warranted by what is laid down in 2 Inst. 673, where it is said that if an in- fant bargain and sell lands which are in the realty by deed in- dented and enrolled^ he may avoid it when he will, for the deed was of no effect to raise a use. The result of the American decisions has been correctly stated by Mr. Chancellor Kent in his learned Commentaries (2 Com. Lect. 31) to be that they are in favor of construing the acts and contracts of infants generally to be voidable only, and not void, and subject to their election when they become of age either to affirm or disallow them ; and that the doctrine of Zouch v. Parsons has been recognized and adopted as law. It may be added that they seem generally to hold that the deed of an infant conveying lands is voidable only, , and not void, unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant ; and this upon the nature and solemnity, as well as the operation, of the instrument. It is not, howeveEj necessary for us in this case to decide whether the present deed, either from its being a deed of bargain and sale, or from its nature as creating a trust for a sale of the estate, or from the other circumstances of the case," is to be deemed void or voidable only. For if it be voidable only and has been avoided by the infant, then the same result will follow, that the plaintiff's title is gone. Let us, then, proceed to the consideration of the other point, whether; supposing the deed to Wallach to be voidable only, it has been avoided by the subsequent deed of Barry to Mrs. Moreland. There is no doubt that an infant may avoid his act, deed, or contract, by different means, according to the nature of the act and the circumstances of the case. He may sometimes avoid it 1 See Boston Bank v. Chamberlain, 15 Mass. 220. TUCKER V. MOEELAND. 71 by matter in pais, as in case of a feoffment by an entry, if his entry is not tolled ; sometimes by plea, as when he is sued upon his bond or other contract ; sometimes by suit, as when he dis- affirms a contract made for the sale of his chattels, and sues for the chattels ; sometimes by a writ of error, as when he has levied a fine during his nonage ; sometimes by a writ of audita querela, as when he has acknowledged a recognizance, or statute staple or merchant ; ^ sometimes, as in the case of an 'alienation of his estate during his nonage, by a writ of entry, dum fuit infra cetatem, after his arrival of age. The general result seems to be that where the act >of the infant is by matter of record, he must avoid it by some act of record (as, for instance, by a writ of error, or on audita querela) during his minority. But if the act of the infant is a matter in pais, it may be avoided by an act in puis of equal solemnity or notoriety; and this, according to some authorities, either during his nonage or afterwards; and according to others, at all events, after his arrival of age.^ In Co. Lit. 380 5, it is said, " Herein a diversity is to be observed between matters of record done or suffered by an infant and matters in fait; for matters in fait he shall avoid either within age or at full age, as hath been said ; but matters of record, as statutes merchants, and of the staple, recognizances acknowl- edged by him, or a fine levied by him, recovery against him, &c. mast be avoided by him ; viz.-, statutes, &c. , by audita querela ; and the fine and recovery by a writ of error during his minority, and the like. " Jn short, the nature of the original act or con- veyance generally governs as to the nature of the act required to be done in the disaffirmance of it. If the latter be of as high and solemn a nature as the former, it amounts to a valid avoidance of it. We do not mean to say that in all cases the act of dis- affirmance should be of the same or of as high and solemn a nature as tlm Original act, for a deed may be avoided by a plea. But we mean only to say that if the act of disaffirmance be of as high and solemn a nature there is no ground to impeach its sufficiency, IJord Bllenborough in Baylis v. Dineley, 3 Maule 1 SeeCom.Dig. "Enfant," B. 1,2, Age, "I. 3,1. 5,1. 7; Zouchu. Parsons, C. 2, 3, 4, 5, 8, 9, 11; 2 Inst. 673; 2 3 Burr. 1794; Roof v. Stafford, 7 Kent, Comm. Lect 31 ; Bac. Abridg. Cowen, 179, 183; Com. Dig. "Enfant," " Infancy & Age," I. 5, I. 7. C. 9, C. 4, C. 11. 2 See Bac. Abridg. "Infancy & 72 INFANCY. & Selw. 481, 482, held a parol confirmation of a bond given by an infant after he came of age to be invalid, insisting that it should be by something amounting to an estoppel in law of as high authority as the deed itself ; but that the same deed might be avoided by the plea of infancy. There are cases, however, in which a confirmation may be good without being by deed ; as in case of a lease by an infant, and his receiving rent after he came of age. ' The question then is, whether in the present case the deed to Mrs. Moreland, being of as high and solemn a nature as the original deed to Wallach, is not a valid disaffirmance of it. We think it is. If it was a voidable conveyance which had passed the seisin and possession to Wallach, and he had remained in possession, it might, like a feoffment, have been . avoided by an entry by an infant after he came of age.^ But in point of fact Barry remained in possession ; and therefore he could not enter upon himself. And when he conveyed to Mrs. Moreland, being in possession, he must be deemed to assert his original interest in the land, and to pass it in the same manner as if he had entered upon the land and delivered the deed thereon, if the same had been in an adverse possession. The case of Jackson V. Carpenter, 11 Johns. 639, and Jackson v. Burchin, 14 Johns. 124, are directly in point, and proceed -upon principles which are in perfect coincidence with the common law and are entirely satisfactory. Indeed, they go farther than the circumstances of the present case require ; for they dispense with an entry where the possession was out of the party when he made the second deed. In Jackson v. Burchin, the Court said, that it would, seem not only upon principle but authority, that the infant can manifest his dissent in the same way and manner by which he first as- sented to convey. If he has given livery of seisin, he must do an act of equal notoriety to disaffirm the first act; he must enter on the land and make known his dissent. If he has conveyed by bargain and sale, then a second deed of bargain and sale will be equally solemn and notorious in disaffirmance of the first. ' 1 See Bao. Abridg. "Infancy & Eaton, 13 Mass. 375; Whitney v. Age," I. 8. Dutch, 14 Mass. 462. " See Inhabitants of Worcester v. » See the same point, 2 Kent, Com. Lect. 31. TUCKER V. MOEELAND. 73 We know of no authority or principle which contradicts this doctrine. It seems founded in good sense, and follows out the principle of notoriety of disaffirmance in the case of a feoffment by an entry ; that is, by an act of equal notoriety and solemnity with the original act. The case of Frost v. Wolverton, 1 Strange, 94, seems to have proceeded on this principle. Upon these grounds, we are of opinion, that the deed of Barry to Mrs. Moreland was a complete disaffirmance and avoidance of his prior deed to Wallach ; and consequently the instruction given by the Circuit Court was unexceptionable. To give effect to such dis- affirmance, it was not necessary that the infant should first place the other party in statu quo. The second bill of exceptions taken by the plaintiff turns upon the instructions asked upon the evi- dence stated therein, and scarcely admits of abbreviation. It is as follows : " The plaintiff, further to maintain and prove the issue on his side, then gave in evidence, by competent witnesses, facts tending to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of Septem- ber, 1831 ; and that in the .month of November, 1831, the said defendant, who was the mother of the said Richard, did assert and declare that said Richard was born on the fourteenth day of September, 1810; and that she did assert to Dr. McWilliams, a competent and credible witness, who deposed to said facts, and who was the accoucheur attending on her at the period of the birth of hor said son, that such birth actually occurred on the said fourteenth of September, 1810, and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the birth ; and thereupon the counsel for the plaintiff requested the Court to instruct the jury: '1. That, if the said jury shall believe, from the said evidence, that the said Richard N. Barry was of full age, and above the age of twenty- one years, at the time of the execution of said deed to said Wallach; or, if the defendant shall have failed to satisfy the jury, from the evidence, that said Barry was, at the said date, an infant under twenty-one years, that then the plaintiff is enti- tled to recover. 2. Or, if the jury shall belipve, from the said evidence, that, if said Richard was under age at the time of the execution of said deed, that he did, after his arrival at age, voluntarily and deliberately recognize the same as an actual conveyance of his right, or, during a period of several months, 74 INFANCY, acquiesce in the same without objection, that then the said deed cannot new be impeached on account of the minority of the gran- tor. 3. That the said deed from the said Richard N. Barry to the defendant, being made to her with full notice of said prerious deed to said Wallach, and including other and valuable prop- erty, is not so inconsistent with said first deed as to amount to a disafifirmance of the same. 4. That, from the relative posi- tion of the parties to said deed to defendant, at and previous to its execution, and, from the circumstances attending it, ttie jury may infer that the same was fraudulent and void. 5. That if the lessors of plaintiff were induced, by the acts aMd declarations of said defendant, to give a full consideration for said deed to Wallach, and to accept said deed as a full and only security for the debt bona fide due to them, and property hona fide advanced by them, and to believe that the said security was valid and effective, that then it is not competent for said defendant in this action to question or deny the title of said plaintiff «nder said deed, whether the said acts and declarations were made fraudu- lently, and for the purpose of practising deception ; or whether said defendant, from any cause, wilfully misrepresented the truth. ' Whereupon, the Court gave the first of the said instruc- tions so prayed, as aforesaid, and refused to give the others. To which refusal the counsel for the plaintiff excepted. " The first instruction, being given by the Court, is, of course, excluded from our consideration on the present writ of error. The second instruction is objectionable on several accounts. In the first place, it assumes, as matter of law, that a volun- tary and deliberate recognition by a person after his arrival at age, of an actual conveyance of his right during his nonage, amounts to a confirmation of such conveyance. In the next place, that a mere acquiescence in the same conveyance, without objection, for several months after his arrival at age, is also a confirmation of it. In our judgment, neither proposition is maintainable. The mere recognition of the fact that a conveyance has been made, is not, p&r se, proof of a confirmation of it. Lord Ellenborough, in Baylis v. Dineley {3 M. & Selw. 482), was of opinion that an act of as high a solemnity as the original act was necessary to a confirmation. " We cannot, " said he, " sur- render the interests of the infant into such hands as he may TUCKER V. MOBELAND. 75 chance to get. It appears to me that we should be doing so in this case" [that of a deed], "unless we required the act after full age to he of as great a solemhity as the original instrument." Without undertaking to apply this doctrine to its full extent, and admitting that acts in pais may amount to a confirmation of a deed, still, we are of opinion, that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was avoidable. ^ A fortiori mere acquiescence, imcoupled with any acts demon- strative of an intent to confirm it, would be insufficient for the purpose. In Jackson v. Carpenter, 11 Johns. 542, 543, the Court held, that an acquiescence by t3ie grantor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of that conveyance; that some positive act was necessary, evincing his assent to the conveyance. In Curtin v. Fatten, 11 Serg. & Eawle, 311, the Court held, that to constitute a confirmation of a conveyance or contract by an infant, after he arrives of age, there must be some distinct act, by which he either receives a benefit from the contract after he arrives at age, or does some act of express ratification. There is much good sense in these decisions, and they are in- dispensable to a just support of the rights of infants according to the common law. Besides, in the present case, 'as Barry was in possession of the premises during the whole period until the execution of his deed to Mrs. Moreland, there was no evi- dence to justify the jury in drawing any inference of any inten- tional acquiescence in the validity of the deed to Wallach. The third instruction is, for the reasons already stated, unmaintain- able. The deed to Mrs. Moreland contains a conveyance of the very land in controversy, with a warranty of the title against all persons claiming under him (Barry), and a covenant that he had good right and title to convey the same ; and, therefore, is a positive disaffirmance of the former deed. The fourth instruc- tion proceeds upon the supposition, that, if the deed to Mrs. Moreland was fraudulent between the parties to it, it was utterly void, and not merely voidable. But it is clear that between the parties it would ^e binding and available; however, as to the persons whom it was intended to defraud, it might be avoidable, a ' See Boston Bank v. Chamberlain, 15 Mass. 220. 76 INFANCY. Even if it was made for the very purpose of defeating the convey- ance to Wallach, and was a mere contrivance for this purpose, it was still an act competent to be done by Barry, and amounted to a disaffirmance of the conveyance to Wallach. In many cases, the disaffirmance of a deed made during infancy is a fraud upon the other party. But this has never been held sufficient to avoid the disaffirm- ance, for it would otherwise take away the very protection which the law intends to throw around him, to guard him from the effects of his folly, rashness, and misconduct. In Saunderson v. Marr, 1 H. Bl. 75, it was held, that a warrant of attorney given by an infant, although there appeared circumstances of fraud on his part, was utterly void, even though the application was made to the equity side of the Court, to set aside a judgment founded on it. So, in Conroe v. Birdsall, 1 Johns. Cas. 127, a bond made by an infant, who declared at the time that he was of age,, was held void, notwithstanding his fraudulent declaration; for the Court said that a. different decision would endanger all the rights of infants. A similar doctrine was held by the Court in Curtin v. Patton, 11 Serg. & Rawle, 309, 310. Indeed the same doctrine is to be found affirmed more than a century and a half ago, in Johnson v. Pie, 1 Lev. 169; s. c. 1 Sid. 258; 1 Keb. 995, 913. i But what are the facts on which the instruction relics as proof of the deed to Mrs. Moreland being fraudulent and void ? They are "the relative positions of the parties to said deed, at and previous to its execution ; " that is to say, the relation of mother and son, and the fact that she had then instituted a suit against him, and arrested him and held him to bail, as stated in the evidence ; and " from the circumstances attending the execution of it;" that is to say, that Mrs. Moreland was informed by Barry, before his deed to her, that he had so conveyed the said property to Wallach, and that subsequently, and with such knowledge, she prevailed on Barry to execute to her the same conveyance. Now, certainly, these facts alone could not justly authorize a conclusion that the conveyance to Mrs. Moreland was fraudulent and void ; for she might be a bona fide creditor of her son. And the consideration averred in that conveyance showed her to be a creditor, if it was truly stated (and there was no > See Bac. Abridg. " Infancy & Age," H.; 2 Kent Com. Leot. 31. TUCKER V. MOEELAND. 77 evidence to contradict it) ; and if she was a creditor, then she had a legal right to sue her son, and there was no fraud in prevailing On him to give a deed to satisfy that debt. It is probable that the instruction was designed to cover all the other facts stated in the bill of exceptions, though in its actual terms it does not seem to comprehend them. But, if it did, we are of opinion that the jury would not have been justified in inferring that the deed was fraudulent and void. In the first place, the proceedings in the Orphans' Court may, for aught that appears, have been in good faith, and under an innocent mistake of a year of the actual age of Barry. In the next place, if not so, still the mother and the son were not estopped in any other proceeding to set up the non- age of Barry, whatever might have been the case as to the parties and property involved in that proceeding. In the next place, there is not the slightest proof that these proceedings had at the time any reference to, or intended operation upon, the subse- quent deed made to Wallach; or that Mrs. Moreland was party to, or assisted in the negotiations or declarations on which the deed to Wallach was founded. Certainly, without some proofs of this sort, it would be going too far to assert, that the jury might infer that the deed to Mrs. Moreland was fraudulent. Fraud is not presumed either as a matter of law or fact, un- less under circumstances not fairly susceptible of any other interpretation. The fifth instruction was properly refused by the Court, for the plain reason that there was no evidence in the case of any acts or declarations by Mrs. Moreland to the effect therein stated. It was, therefore, the common case of an instruction asked upon, a mere hypothetical statement, ultra the evidence. The third bill of exceptions is as follows : " The Court having refused the second, third, fourth, and fifth instructions prayed by the plain- tiffs, and the counsel, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury ; the counsel for the defendant thereupon prayed the Court to instruct the jury that, if from the evidence so as aforesaid given to the jury, and stated in the prayers for the said instructions, they should be of opinion that the said Richard was under the age of twenty-one years at the time he made his deed, as aforesaid, to the said Richard Wallach, under whom the plaintiffs claim their title in this 78 IKFANCY. case, and that, at the time he made his deed, as hereinbefore mentioned, to the defendant, he was of full age ; that such last- mentioned deed was a disaffirmance of his preceding deed toi him, the said Richard Wallach; and that in that case the jury ought to find their verdict for the defendant; and that the evi- dence upon which the second, third, fourth, and fifth instruc- tions were prayed by the plaintifF, as aforesaid, which evidence is sef forth in the instructions so prayed, is not competent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds, or for any of the reasons set forth in the' said prayers, or to authorize them to find a verdict for the plain- tiff, if they should be of opinion that the said Richard Barry was under the age of twenty-one years at the time he made his deed^ as aforesaid, to the said Richard Wallach. Which instruction, the Court gave as prayed, and the counsel for the plaintiff ex- cepted thereto. " It is unnecessary to do more than to state that the bill of fexceptions is completely disposed of by the considera- tions already mentioned. It contains no more than the converse^ of the propositions stated in the second bill of exceptions, and the reassertion of the instruction given by the Court in the first bill of exceptions. Upon the whole, it is the opinion of the Court, that the judgment of the Circuit Court ought to be affirmed with costs. • _ Mustard v. Wohlpobd's Heies. (15 Grat. 329. Court of Appeals of Virginia, 1859.) Title Bond of Infant. — Disaffirmance. — Conveyance hy one out of Possession. — The Effect of the Disaffirmance. — Return of Consideration on avoidance of contracts executed and executory considered. Alexander Nisewandeb, being entitled to an undivided fifth of a tract of land, subject to his mother's life-estate in one third thereof, contracted, during his infancy, to sell his said interest to John Mustard for the sum of eight hundred dollars ; and on the same day, to wit, the 16th day of January, 1852, executed a title bond in the penalty of one thousand six hundred dollars, conditioned to make a good deed with general warranty to the purchaser for the said interest on the 3d of November, 1853, that MUSTAED V. WOHtF0ED'S HEIRS. 79 being the day on which the yendor would attain the age of twenty-one years. Three hundred dollars of the purchase-money were paid, according to the contract, in a house and lot in Mechanicsburg. No other payment, was made during the infancy of the vendor,, except about forty dollars, the amount of a debt assumed for him by the vendee. For the balance of the purchase- money, the vendee executed his bond, but. it does not appear when it was made payable; though it was, probably, when the deed should be executed by the vendor, on or after his arrival at lawful age. It does not appear that any deed, or even title- bond, was ever executed to Nisewander for the house and lot iii Mechanicsburg. It seems that that property was, worth about three hundred dollars^ and that he- might have sold it for that sum if he had been of age, or could have given security to make a good title when he became of age. But not being able to do so, and being in want of money,, he offered to sell it for one hundred dollars; and, among others, offered to sell it to the appellant Mustard at that price. The appellant said he; did not want it, but that his son Hugh would buy it., And Nisewander did sell it to Hugh Mustard and Addison Harmon for about one hundred dollars; which was accordingly paid. The same prop- erty was afterwards sold by the appellant, to another person for three hundred dollars, paid partly in cash and the balance in trade. Nisewander, having become dissatisfied with his, sale to the appellant, determined, and often declared, that he would not, on his arrival at age, confirm the, sale and make a deed accord- ing to his title-bond; and these declarations were sometimes made in presence of one or two of the appellant's sons, but not of the appellant himself. After his arrival at age, he persisted in this determination, and so declared ; and on the 8th day of November, 1853, he contracted to sell his interest in the land to Samuel Wohlford for eight hundred dollars ; of which one hun- dred dollars was paid in cash, and for- the balance three bonds were exeputed, payable at future periods ; and he executed a title- bond, conditioned to make a deed before the last payment should become due.. When Nisewander applied to Wohlford to make this purchase, the latter knew that the former had contracted during infancy to sell his interest to the appellant, and asked him if he did not intend to comply with his said .contract ; and the former- replied that he did not ; whereupon the latter made the purchase, 80 INFANCY. and received the title-bond aforesaid. A few days after this purchase the appellant endeavored to obtain- from Nisewander indemnity for the money paid on their contract as aforesaid; and, failing in that, endeavored to induce "Wohlford to agree to rescind his contract with Nisewander upon the return of the money and bonds received by the latter; but Wohlford refused to do so. Shortly thereafter, to wit, on the 18th of November, 1853, the appellant induced Nisewander to execute a deed con- veying the land to him, in consideration of the sum of nine hundred dollars, being one hundred dollars more than the amount of the purchase-money before agreed upon between them ; which sum of one hundred dollars was paid at the time of the execution of the deed. Very soon after the execution of the said deed, and during the same month of November, 1853, Wohlford instituted this suit for the purpose of having the deed annulled, as having been fraudulently obtained by the appellant with a full knowledge of the equitable rights of Wohlford, and of obtaining the legal title to the said interest, and a partition of the land and an allotment of his several portion thereof. The appellant in his answer admits that he obtained the deed with full notice of the prior sale and title-bond to Wohlford, but says, in sub- stance, that he had long previously purchased the same property, and received a title-bond therefor from Nisewander during his infancy, of which purchase and title-bond, as well as of the fact that respondent had paid a considerable part of the purchase- money, the plaintiff had full notice at the time he made his pur- chase and obtained his title-bond as aforesaid ; that whether the plaintiff had such notice or not, respondent insists that, having acquired the first equitable title, he had a right, notwithstanding his knowledge of any subsequently acquired equity of the plain- tiff, to perfect his purchase, if he could, by obtaining a convey- ance of the legal title; that, although Nisewander was under age at the date of the title-bond to respondent, yet it was not on that account void, but only voidable, and might be- affirmed or disaffirmed at the election of said vendor after he arrived at lawful age ; that the sale and title-bond to Wohlford were not a disaffirmance, but the deed to respondent was an affirmance of the said title-bond to respondent, notwithstanding the payment of the additional sum of one hundred dollars as aforesaid, which was not intended to change the original contract, but merely to MUSTARD V. WOHLFORD'S HEIES. 81 induce its affirmance ; which respondent had a right to do. Nise- wander, in his answer, admits the contracts of sale made by him with the appellant and Wohlford respectively, the former before and the latter after he became of age, and states that a con- siderable portion of the purchase-money due under the former contract was paid, or attempted to be paid, in a house and lot for which he had no use, and owing to the advantage thus taken of him, he determined, before he became of age, and expressed the determination frequently and publicly, that he would not confirm the contract ; that after he became of age he expressed the same determination to various persons, and among them to Wohlford, and offered to sell him the land, which Wohlford then bought ; that after making this contract with Wohlford, he was, by the free use of liquor supplied by Powers, acting for Mustard, prevailed upon to make a deed for the land to Mustard, which he would not have done if he had been sober ; that at the time of the execution of the deed Mustard paid him one hundred dollars more than the original contract price; and that the sale to Wohlford was a fair one, made when respondent was sober, for a fair consideration, and he had no desire to defeat it. The facts, as before stated, are fully proved by the evidence, which also tends to prove that the deed from Nisewander to Mustard was obtained by undue and improper means practised by the agent of the latter ; but that fact is immaterial, in the view taken of the case by the Court. On the 11th of April, 1857, a decree was rendered in the cause, reciting that, Wohlford having died pending the suit, it had been revived in the name of his heirs, declaring the deed from Nisewander to Mustard to be fraudulent and void, directing the same to be set aside and cancelled, and that Mustard should convey to the said heirs all the title vested in him by said deed, and appointing commissioners to make partition as prayed for in the bill'. Prom that decree. Mustard applied to this Court for an appeal, which was allowed.^ MoNCUEE, J/, delivered the opinion of the Court. The Court is of opinion, that the contract of the 16th of January, 1852, between Nisewander and the appellant, though made when the former was under age, and when that fact was known to the appellant, was not a void contract, but only voidable, and sub- ject to be affirmed or. disaffirmed by the former, after his arrival 1 Arguments omitted. — Ed. 6 82 INFANCY. at age. "The tendency of the modern decisions," says Chan- cellor Kent, " is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election, when they become of age, either to afiBrm or disavow them. " 2 Kent Com. 235. The authorities on this subject are fully collected in the vahiable notes of Hare and Wallace, ap- pended to the case of Tucker, &c. v. Moreland, in 1 Amer. Lead. Cas., ed. 1857, pp. 224-267. And from the numerous decisions which have been had in this country, the annotators deduce the following definite rule, as one that is subject to no exceptions. " The only contract binding on an infant is the implied contract for necessaries ; the only act which he is under a legal incapa- city to perform is the appointment of an attorney : all other acts and contracts, executed or executory, are voidable or confirmable by him at his election." Id. 244. It is not material that the title-bond in this case is in a penal sum ; though it has been said that a bond of an infant with a penalty is void. Coke Lit. 172 a, recognized as being still the law by Bayly, J., in 3 Maule & Sel. 482. The penalty of the bond is a mere matter of form, the substance of the contract being the condition on which may be maintained an action of covenant at law or a suit for specific performance in equity. See also 3 Rob. Pr. (new) 221-228. The Court is further of opinion that the said contract was dis- affirmed by the contract of the 8th of November, 1853, between Nisewander and Wohlford, made after the former arrived at age. There is no evidence, nor even pretence, of any affirmance of the former contract by Nisewander after he arrived at age and before he entered into the latter, which was but eight days after his arrival at age. On the contrary, he persisted during that period in declaring that he would not confirm the former contract. Then the question is, Did not the latter amount to a disaffirm- ance of the former ? A voidable act of an infant may be avoided by different means, according to the nature of the act, but, with- out undertaking to enumerate them, it is sufficient for the pur- poses of this case to say, that such an act may certainly be avoided by him after he becomes of age, by an act of the same nature and dignity. Thus a feoffment may be avoided by a' feoffment ; a deed of bargain and sale, by a deed of bargain and sale ; a title-bond, by a title-bond, &c. ; the two acts in these MUSTARD V. WOHLFOKD'S HEIKS. 83 cases being of the same nature and dignity. It is not necessary, in order to produce that effect, that the latter act should expressly disaffirm the former. It is enough that the two acts are incon- sistent with each other; in which- case the former is disaffirmed by plain and necessary implication. The case of Frost v. Wolveston, 1 Strange, 94, seems to have proceeded on this prin- ciple. There an infant covenanted to levy a fine by a certain time, to certain uses ; and before he came of age he levied the fine, and by another deed, made at full age, he declared it to be to other uses : the Court held that the last deed should be the one to lead the uses. So also did the cases of Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 id. 124; and Tucker v. Moreland, 10 Peters, 58. In these cases, deeds of bargain and sale were avoided by deeds of the same nature to other bargainees. In the last of them. Judge Stoet said -the first two "are directly in point, and proceed upon principles which are in perfect coincidence with the common law, and are entirely satisfactory. " In these cases the first grantee was not in actual possession when the second deed was executed, but the land was either vacant, or the grantor remained in possession. If there be an adverse possession, then it is said, in those States where one out of possession cannot sell, there should be an entry by the grantor in order to avoid the first deed by another. 1 Am. Lead. Cas. 257, and the cases cited. But no entry is neces- sary in those States in which one out of possession of real 'estate can sell his interest therein. 1 Parsons on Cont. 273. That is the case in this State, under the Code, ch. 116, §§ 4, 5, p. 500 ; which provides, " that all real estate shall, as regards the con- veyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery," and that "any interest in or claim to real estate may be disposed of by deed or will." . Carrington V. Goddin, 13 Gratt. 587. But in this case, though the first vendee appears to have been in possession when the second title- bond was executed, such possession was not adverse to the ven- dor, but in subordination to the title which still remained in himj and which would have been conveyed by him independently of the statute, and without any actual entry. In any view of the case, therefore, the contract with Wohlford was a disaffirmance of the contract with the appellant. The Court is further of opinion, that the effect of such dis- 84 INFANCY. affirmance was to render the first-mentioned contract void; to extinguish any interest in law or equity the appellant may have acquired under it; and to entitle Nisewander, or his vendee, Wohlford, in his name, to recover possession of the land in an action at law, and hold it free from any equity of the appellant. When a voidable contract of an infant is disaffirmed by him, it is made void ah initio by relation, and the parties revert to the same situation as if the contract had not been made. 1 Am. Lead. Cas. 259; Boyden v. Boyden, &c., 9 Met. 519, 521. If the contract was one of sale by the infant, he becomes reinvested with his title to the property, and may demand and recover it, not only of the vendee, but of any other person who may have it in possession. The right of an infant to avoid his contract is an absolute and paramount right, superior to all equities of other persons, and may therefore be exercised against purchasers from the vendee. 1 Am. Lead. Cas. 258 ; citing Myers, . Williams, for the plaintiff, cited 3 Maule & Selw. 481; 1 Pick. 124; 1 Vern. 132. Boutelle, for the defendant, cited 16 Mass. 460 ; 1 Pick. 203, 223. Paeris, J., delivered the opinion of the Court. It seems to be a well-settled principle that such contracts of an infant as the Court can pronounce to be to his prejudice are void ; such as are of an uncertain nature as to benefit or prejudice are voidable, and may be confirmed or avoided at his election ; and such as are for his benefit, as for necessaries, instruction, and the like, are valid. The law so far protects him, in the second class of con- tracts, as to afford him an opportunity, when arrived at full age, to consider his bargain, its probable tendency and effect ; to re- view the circumstances under which it was made ; and, having weighed its advantages and disadvantages, to ratify or avoid it. If it be ratified, the original contract becomes binding, and may be enforced. The ratification gives life and validity to the old promise ; and, if the contract be enforced at law, it will be by an action on the original agreement, and not on the ratification. But a ratification must, on the one hand, be something more than a mere acknowledgment of the debt, while, on the other, it need not be a direct promise to pay or perform. A direct prom- ise is, indeed, evidence of a ratification, but not the only evi- dence. The contract of an infant may be rendered as valid, LAWSON V. LOVEJOY. 93 when he arrives at full age, by his mere acts, as by the most direct and unequivocal promise. His confirmation of the act or deed of his infancy may be justly inferred against him, after he has been of age for a reasonable time, either from his positive acts in favor of the contract, or from his tacit assent under cir- cumstances not to excuse his silence. It was even said by Chief Justice Dallas, in Holmes v. Blogg, 8 Taunt. 35, that in every instance of a contract voidable only, by an infant on coming of age, the infant is boimd to give notice of disaffirmance of such contract in reasonable time. Although this doctrine may not have been fully recognized to its utmost extent, yet such cir- cumstances as show that the infant either received a benefit from the contract after he arrived at full age, or did something from which assent might be presumed, have frequently been adjudged sufficient evidence of a ratification. Such as the silence of the infant after his arrival at full age, coupled with his retaining possession of the consideration, or availing himself in any man- ner of his conveyance. Hubbard v. Cummings, 1 Greenl. 11; Dana v. Coombs, 6 Greenl. 89. So if an infant lease land, and after he come of age receive rent; this is equivalent, to an ex- press promise that the lease shall stand, and the infant is bound by it. Ashfield v. Ashfield, Sir W. Jones, 157 ; Litt. sect. 258. So if an infant take a lease for years, rendering rent, which is in arrear for several years when he comes of age, and he there- after continues in possession. This makes the lease good, and him chargteable with all the arrears which accrued during his minority; for though,, at full age, he might have disaffirmed the lease, and thereby have avoided payment of the arrears, yet his continuance in possession after his full age ratifies and affirms the contract ab initio. Com. Dig. " Enfant, " C. 6 ; Evelyn v. Chichester, 3 Burr. 1717. So receiving interest on a contract. Franklin v. Thornbury, 1 Vern. 132. The occupancy of lands taken in exchange for other land. Cecil v. Salisbury, 2 Vern. 225. And any other act indicating an intention to affirm. Kline v. Beebe, 6 Conn. 494. The law wisely protects youth from the impositions of those who might be disposed to take advantage of their inexperience, and compels them to the per- formance of no engagements or the payment of no debts con- tracted within age, such as are for necessaries suited to their condition in life. But while it affords this protection &s a 94: INFANCY. shield, it will not sanction its use as an offensive weapon of in- justice, by which the unsuspecting and honest community are to be defrauded of their property. The privilege is afforded for no such purpose. The law requires of the infant the strict per- formance of his engagement, if, subsequent to his arrival at age, it has been ratified and confirmed, either by a new promise, or by any act by which an acquiescence is implied. But if there have been no such ratification, and he repudiate the contract, common honesty will not, and legal principles ought not, to per- mit him to retain the consideration which was the foundation of the promise he thus avoids. He should place himself and the person with whom he contracted in the same situation as if no contract had been made. Surely he ought not to be permitted to keep all and pay nothing. But in this case we are not called upon to decide whether the law would afford any remedy for one who had sold his chattels to an infant, by whom they had been converted into cash during infancy, there having been no subse- quent confirmation of the contract. If the principles which have been recognized by this Court in Hubbard v. Cummings and Dana v. Coombs stand unshaken, as we think they do, and can be applied to contracts for personal as well as real property, as we think they may, the contract which is the foundation of this action was fully ratified by the acts of the defendant after he arrived at full age. According to the agreement of the parties, the defendant must be defaulted. Hale v. Gereish. (8 N. H. 374. Superior Court of Judicature of New Hampshire, 1836.) Ratification of Executory Contract. Assumpsit upon an account annexed to the plaintiff's writ Plea, infancy. Replication, that the defendant, after he became of full age, assented to, ratified, and confirmed the several promises mentioned in the declaration, with a traverse and issue on this fact. The case was submitted to the Court on the evi- dence contained in the depositions of Enoch H. Nutter and John HALE V. GEEEISH. 95 Brewster; and it was agreed that if the said depositions fur- nished evidence competent to be submitted to a jury, and suffi- cient in law to justify them in returning a verdict for the plaintiff, judgment was to be rendered for the plaintiff for the amount of his demand; otherwise for the defendant. The said Nutter testified that he bailed the defendant on the plaintiff's writ, and that since that time he had heard the defendant say that he owed the debt to the plaintiff, and was willing to pay him as much as he paid his other creditors, if the plaintiff would settle with him, and do what was right ; at the same time, he said he was a minor when the debt was contracted. He also said he would pay the plaintiff fifty per cent of the debt, if he would pay the cost, rather than have the action go to Court. Said Brewster testified that for several years he had been employed as a clerk in the store of the plaintiff, in Dover ; that, on the 11th day of June, 1834, the defendant was passing the store, and was called in for the purpose of settling an account which the plaintiff had against him. The plaintiff directed the witness to make out the account, which he did. The plaintiff then requested the defend- ant to give his note for the amount of the account ; but he re- fused. The plaintiff then asked him why he would not ; and the defendant answered, because it would render him liable to be arrested. The plaintiff asked the defendant if he'oweii the debt. He re- plied, "Yes, I owe the debt, and you will get your pay; and I suppose that is all you want. " The plaintiff said, " Yes ; but I want the account settled, as it is upon an old book. " The defendant said he should not give a note, on any consideration. He farther said that he had made arrangements to pay all his small debts : and should do it before he went to New York. Bartlett, for the plaintiff; Bowe, for the defendant. TJPHAM, J. It has been settled, in the case of Merriam v. Wilkins, 6 N. H. 432, that, where infancy is pleaded, a new promise, made after the commencement of a suit, is not sufficient to sustain a pending action. There must be a subsisting right of' action at the time of suing out the plaintiff's writ, which right of action no subsequent promise can give. The testimony, there- fore, of Enoch H. Nutter is insufficient to show a new promise 96 INFANCY. that can avail the plaintiff in this suit. The declarations to Nutter were all subsequent to the commencement of this action and to the arrest of the defendant, for whom Nutter became bail. Thrupp V. Fielder, 2 Esp. 628; Ford v. Phillips, 1 Pick. 203; Thornton v. Illingworth, 2 B. & C. 824. The whole case, then, rests upon the testimony of John Brewster, the remaining wit- ness. He testifies that the plaintiff called the defendant into his store, and asked him to give his note for the amount of the ac- count, which the defendant refused to do, saying it would render him liable to be arrested. The plaintiff asked the defendant " if he did not owe the debt. " The defendant replied " that he did, and that the plaintiff would get his pay, " and added, " I suppose this is all you want." He farther said that he had made arrangements to pay all his small debts before he went to New York. The rule in this case is different from that where the statute of limitations is pleaded. An acknowledgment of a sub- sisting debt, where 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 ratification must either be a direct promise, — as by saying, "I ratify and confirm," or, "I agree to pay the debt," — or by positive acts of the infant, after he has been of age a rea- sonable time, in favor of his contract, which are of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Thompson v. Lay, 4 Pick. 48 ; Lawson V. Lovejoy, 8 Green. 405 ; Ford v. Phillips, 1 Pick. 202 ; Smith V. Mayo, 9 Mass. 62; Roberts v. Wiggin, 1 N. H. 73; Whitney V. Dutch, 14 Mass. 457; Goodsell v. Myers, 3 Wend. 479; Hub- bard V. Cummings, 1 Green. 11 ; Dana v. Coombs, 6 Green. 89; Thrupp V. Fielder, 2 Esp. 628 ; Hitchcock v. Tyson, Id. 482, In 1 Pick. 202, the declaration of the defendant after he had be- come of age was, " that he owed the plaintiff, but was unable to pay him ; he would endeavor, however, to get his brother to be bound with him. " It was holden, that this did not amount to a renewal of the promise. The declaration, in this case, that the defendant " owed the debt, and that the plaintiff would get his pay," seems to go no farther. Were this the whole declaration, i+^^ would probably not constitute such a ratification of the original EUNDALL. 97 contract as to bind tHd defendant; but this declaration was at the tinie accompanied by an d-vdwed design on his part to make no promise or ackriotvledgiiieiit that ■w'otild render him liable to'bd arrested, or that would eilable the plaintiff td enforce the claim. Such being the case, it ^eeins' perfectly cleai^ that there was no such ratification or new promise as would render the defendant,' liable. Judgment for the defendant. iZ^-C--^-*-**^ (8 Term, 335. Court of King's -Berieh, 1-79&.) LiahiMty of Infant in an Action founded upon Contract, though in form ex delicto. The firSt coUiit in this declaraitidii stiated that the plaintiff, on, (fee, at the instance arid request of the defendant, delivered to the defendant' a certain mare of the plaintiff, to- be moderately ridden by the defendant ; yet that the defendant, edritriving and maliciously intending to injure the'-plaintiff whilst tte mare was in the defendant's custody under such delivery, ■ and before the mare was returned to the' plaintiff on, &6'., wrongfully arid injuri- ously rode, usedj arid worked the- said mare in so ' iriiriibderate,' excessive, and improper a manner, and took so- little arid such bad care thereof that, by reason of such immoderate^ &b., riding, . ^(JUEEEN. 1,05 Piqnnsylvanip,. Jn England the Courts unlfprmly fayqr infants,, perha,ps to preserve -wealth i,n particular families, p, reason whiclji can have no influence h§re. P?hp .c^ise in Southa,rd was decided on the ground that the carri9,ge ;was broken by accident, which distingulsh^p it in an esseutia-l naanner from the case at bar, the b?bsi^ of which is frsaad and tprj;. There was frfl,ud in the inception of |;he contract ; and the de- fendant canftot pihelter himself under ]^he form of contraclj, to avoid ,the consequences of th^ fraud. Infants are liable for deceit, .though in form tiie actjftaj is on a contract^ 9,s^Ul^:^psit will lie againsj; an injant f or Bjioney ;embezzled by him,. Sp an a,ction may be maintg-iped gg^j^st an infaipt on ^ warranty of a hprse. The Court will ipok through the iprpi, in .order to get at the merits pf the pas^. Wpo^v. y.ance, ,l,Nptt & McCprd, 197; Hpmer v. ThT^^ing,, SPi^Js. 492; Vas^e *i. , Smith, 6 Cranqh, 226. The opinion of the Court was delivered by Rogers, J. The law h^ wisely provided that .iii%Q]liS shall npt be liable on .contracts., except ,for i^tecggsairies^ It cannot be pretended that here the inf&nt .wpuld be Ai^abk pn the contract of hiring, as ;the plaintiff has npt brought his case within the principle ,of the exceptipji. Jhe plainjtiff rests his right to recover on the fact, .that the minor was guilty of a ^con^ version by riding to Chester -instead of Qermantown. ,He con- tends that, wherev^ trov er is the prpper form pf action, it will lie a s well against .a & infant tag ^n adultj , and in this position it must be adwtted, he is supported by a decision pf a Court pf high authority in jHpmer v. Ilhwing, 3 Pick. 492. I ha^e ex- amined that case iwith the fittpntipn it merits, a,nd I am cpm- pelled to say, i cannot agree tP the principle ;w,hich is there decided. It is true that detinue will lif against an infant for goods delivered upon a s pecial contract , f or ^ specific purpose ., after the contract js avoided. It is also true that assumpsit will He against an infant to recpvpr .money embezzled, fp this I fully accede; because the object of the suit, in the first case, is to recpyer the article itself, or damages for its detention. .And this decision is founded in sfe^r justice, ,ias the privilegp of pro- teption is given to %e jminor as a shield, and not as a swopd ; nor is it necessary for ^i^ sajfety that .Jjie could ;be permitted tp retain the ,ariiicle when ^the gp.5i|ra,cj; has been rescinded, without 106 INFANCY. paying an equivalent for it. The vendor is remitted to his original rights when the contract has been rescinded ; and, as a consequence, he naay assert them either by action of detinue, replevin, or trover. It is also altogether proper that money emlpezzled by an infant should be recovered in assumpsit. The occupation in which he is employed is for the benefit of the infant; and the embezzlement is a tortious act, in which no blame is imputable to the employer. But is that the case here ? The infant derives no benefit from the transaction ; and, what is , of more consequence, t he plaintiff hi mself is in fault. The loss which ensues results from the contract of hiring with a person whom he is_bound to know was a minor, and as such incapable of contracting. This is a transaction in which parents and guardians have a deep interest, and particularly such as educate their children from under their own eye, at a distance, in our seminaries of learning. It amounts to this : If the keeper of a livery-stable, or an innkeeper, whose business it is to let out horses and carriages to hire, chooses to trust them to a minor, contrary to the assent and wish of the parent, and an injury is done by the young man, in the folly and heedlessness of youth, going to a diffferent place or farther than he intended, the father must either pay the debt or damages, to whatever amount they may be, or suffer his child to be disgraced by imprisonment. It seems to me that parents would have much reason to complain of a rule which involves such consequences. If the plaintiff should succeed, there would be no want of pretences upon which infants might be charged, and there would be an end to the pro - tection which the law so wisely affords them. I cannot agree that, from the commission of a wrong, a right of action can arise. If the contract of hiring came within the exception of necessaries, as might be where a horse was hired to visit a sick parent, &c., then the infant would be liable for the conse- quences ; and, if injury ensued from cruel driving or improper treatment, the owner would have an appropriate remedy. Had the minor gone to Germantown, as he intended, then Schenk v. Strong, 1 Southard, 87, would have been express authority ad- verse to the plaintiff's claim. The foundation of the action is contract, and^ disguise it as you mav. it is an attempt to con - vert a suit originally in contract into a constructive tort, so as t o charge themfant. So far are minors shielded from the conse- PENROSE V. CUEREN. 107 quences of their own acts, that action will not lie against them where they affirm themselves to be of full age, nor on a warranty in the sale of a horse. Johnson v. Pie, 1 Lev. 169; 1 Keble, 905. Nor will, I apprehend, trover lie against an infant for goods sold to him, either with or without a knowledge of his infancy; certainly not where 'he knows the fact of infancy. Manby v. Scott, 1 Sid. 129. The contract being unlawful, no action arises to the adult, who is bound to know with whom he> is contracting, and must be aware that such contracts are con- trary to the policy of the law. It operates not only as a shield to the infant, but as a penalty upon the adult. Wherever a person has not parted with the property, then he can assert his right, as well against an infant as an adult, as in every kind of bailment ; and, if the conversion had been the non- delivery of the horse and carriage hired, the owner might have sustained detinue, replevin, or trover. I would here remark, that, notwithstanding what is said in Homer v. Thwing, I can- not distinguish this from Jennings v. Rundall, 8 T. R. 335. In the second count of the declaration, it was alleged that the plain- tiff let to hire and delivered to the defendant a certain other mare, to go and perform a certain reasonable and moderate jour- ney, &c. ; and yet that the defendant, contriving, &c., wrongfully and injuriously rode and worked the said mare a much longer journey, wysden doubted, for that infants are chargeable for trespasses (Dyer, 105); and so if he cheat with false dice, &e. But 'twas adjourned. But see 1 Keb. 905, 913. ^ Judgment arrested. UOu- GiLSON V. SpeabI —t,^^ ^J^ -iS^-lT^^/^ (38 Vt. 311. Supreme Court of Vermont, 1865.) Infant, when liable for Fraud. — An Action on the Case for Deceit in the sale of a horse. This is an action on the case for deceit, or fraudulent con- cealment of u nsoundness, in the sale of a horse.. The plaintiff/ in his declaration alleged thatj on the 1st of April, 1863, he purchased of the defendant a horse for the price of one hundred and fifteen dollars, as and for a sound horse : and that the de- fendant, at the time of the sale, to induce the plaintiff to give this price, affirmed that the horse "was sound, wind and limb, and free from any defect whatever, but refused to warrant the same ; " whereas, the horse at that time in fact was unsound, and then and for' a long time before had an incurable disease called the heaveg, and was lame ; all which was well known to the de- fendant ; and that the defendant, intending to cheat and defraud the plaintiff, concealed this disease and lameness from him, and he, the plaintiff, was wholly ignorant of the same ; and that by 1 8. c. 1 Siderfin, 258. t 114 INFANCY. reason of the same the horse is, rendered worthless; and the plaintiff averred in his declaration that he has offered to return the horse to the defendant and receive back the purchase-money given for the same, which offer was refused by the defendant. The defendant plead in the county Court to this declaration: ^'(1), not guilty ; and (2), that, at the time of the sale of the horse to the plaintiff, he, the defendant, was an infant within the age of twenty-one years, to wit, of the age of twenty years, conclud- ing with a verification. The plaintiff joined issue on the first plea, and demurred to the second plea. At the December Term, 1865, Windsor County Court, Baeeett, J., presiding, the de- murrer was pro forma overruled, and the plea of infancy was, adjudged sufficient, and judgment was thereon rendered in favor of the defendant. To this decision and judgment the plaintiff excepted. J. J. Wilson and A. P. Eunton for the plaintiff. Hutchinson & Howell, for the defendant. The opinion of the Court was delivered by Kellogg, J. The sole question in this case is whether an ac- tion on the case for deceit in the sale of a horse can be sustained against an infant ; and, in considering this question, the facts alleged in the plaintiff's declaration are to be treated as ad- mitted by the demurrer. It is an admitted general principle that an infant is liable in actions ex delicto for positive wrongs and constructive torts or frauds; and it is equally well settled that, where the substantial ground of action is co ntoct, a plain- tiff cannot, by declaring in tort, render a person liable who would not have been liable on his contract. Whether the fraud in this case should render the defendant liable to an action ex delicto, is the question which we are to consider. In Johnson v. Pie, reported in 1 Levinz, 169, and 1 Siderfin, 258, and 1 Keble, 905, 913 (decided in 1664 after being twice argued), the infant had affirmed that he was of full age, and, confiding in this repre- sentation, the plaintiff had lent him money ; and the action was an action on the case for the infant's fraudulent representation in respect to his age. After verdict for the plaintiff, judgment was arrested on the ground that, "although infants may be bound by actual torts, as trespass, &c., which are vi et armis et contra pacem, they will not be bound by those which sound in deceit;" and Lord Chief Justice Kelynge is reported to have GILSON V. SPEAE. 115 - expressed great indignation at the attempt to charge an infant in tort upon that which was the foundation of an action of assump- sit, and to have said that, if the judgment was not arrested, the whole foundation of the common law would be at stake. In Graves v. Neville, 1 Keble, 778, — an action on the case in the nature of deceit for the sale by the defendant of goods as his own, when in truth they belonged to another, — the Court said that this was no actual tort, nor anything ex delicto, but only ex contractu. The principle of these cases has uniformly been adhered to in the English Courts. In Green v. Greenbank, 2 Marshall, 485 (4 E. C. L. 375), where the plaintiff declared in an action on the case, that, having agreed to exchange mares with the defendant, the latter by falsely warranting his mare to be sound, well know- ing her to be unsound, &c., falsely and fraudulently deceived the plaintiff, &c., it was held that infancy was a good plea in bar, on the ground that the assumpsit w as clearlv the foundation of the action, and that the deceit'was practised in the course o f the contract. The case of Johnson v. Pie was recognized as of unquestioned authority in the cases of Price v. Hewett, 8 Exch. 146 (18 Eng. L. & E. 522), decided in 1853 ;. Liverpool Adelphi Loan Association v. Fairhurst et ux., 9 Exch. 422 (26 Eng. L. & E. 393), decided in 1854; Wright «. -Leonard et ux., 11 J. Scott, N. s. (C. B. 103 E. C. L.) 258, decided in 1861; and Bartletti;. Wells, 1 Best & Smith, Q. B. (101 E. C. L.) 836, decided in 1862. See also the case of De Roo et al. v. Poster, 12 J. Scott N. s. (C. B. 104 E. C. L.) 272, decided in 1862. In the case of the Liverpool Adelphi Loan Association v. Fairhurst et ux., ubi supra, Parke, B., says expressly "that where the tort is incidental to the contract, as the contract is altogether void, the frau d- goes for nothing. " The rule of decision in the case of Johnson v. Pie seems never to have been questioned', much less overruled, in any English case ; and it remains as good law in the English Courts at the present day. In this country, although there has not been the same uniformity in the decisions of the Courts, it has been recognized and approved in many cases. Brown v. Dunham, 1 Root, 272 ; Geer v. Hovy, id. 179 ; Wilt v. Welsh, 6 Watts, 9 ; Brown v. McCune, 5 Sandf. Sup. Ct. 228 ; Homer v. Thwing, 3 Pick. 492 ; Tucker v. Moreland, 10 Peters, 59. In the case of West v. Moore, 14 Yt. 447, it was expressly held, as in the English case of Green w. Greenbank, uhi supra, 116 INFANCY. that infancy was a good bar to an action founded upon a false and fraudulent warranty upon the sale of a horse ; and in the opinion delivered by Bennett, J., the case of Johnson v. Pie is expressly recognized as being of controlling authority. The same prin- ciple was recognized and reaffirmed in the case of Morrill v. Aden, 19 Vt 505. There are cases in this country in which this rule of decision has been questioned or overruled: as in Wood V. Vance, 1 Nott & McCord (S. C), 197, which was an action on the case for deceit in a warranty on an exchange of horses; and Peigne v. Sutcliffe, 4 McCord (S. C), 387, which was an action on the case for the embezzlement ' of goods en- trusted to an infant as a carrier ; and Pitts v. Hall, 9 N. H. 441, in which it was distinctly held that an infant is answerable for a fraudulent representation and deceit which is not connected with the subject-matter of the contract, but by which the other party is induced to enter into one with him, if he afterwards avoids the contract by reason of his infancy ; as where he represents himself to be of full age, and thereby induces a person to sell him goods upon a credit ; and a distinction is suggested of this nature, that an infant is not liable in case for any fraudulent affirmation that makes a part of the contract, — as for a fraudulent representation as to the quality of goods, — but that for fraudulent representa- tions anterior or subsequent to the contract, and not parcel of it, he is liable. This last case is entitled to great respect as being well considered, and was referred to with approbation by Rebfield, J., in Towne et al. v. Wiley, 23 Vt. 355, — a case which stood upon ground which did not require any such rule of decision. If the question was to be reconsidered in the English Courts, we should readily agree that there is great cogency and force in the reasoning by which the decision in the case of Pitts v. Hall is sustained ; but the case itself is in direct opposition to the whole current of the English and most of the American cases. 1 Amer. Lead. Cas, (4th ed.) 262. In Burley v. Russell, 10 N. H. 184, it was admitted that such an affirmation as in Pitts v. Hall would not estop an infant so as to render him liable on the contract ; and the same decision was made in Merriam v. Cunningham, 11 Cush. 40. This doctrine implies as a logical sequence that the A, avoidance of a contract induced by such a representation is the ft legal right of the infant, and not n. frn.nrl. The case of West v. Moore, uhi supra, which was decided in this Cotfrt nearly four GILSON V. SPEAE. 117 years after the decision of the case of Fitts v. Hall, proceeds in this respect on the same ground with Burley v. Russell, iibi supra; and there is no apparent difference in principle between a false- hood expressed in words and the same falsehood properly inferred from actions, demeanor, or silence. Both are equally fraudu- lent, and the damage resulting from the one would be as great as from the oth«r. The allegation of concealment would not, therefore, distinguish this case from one in which the falsehood was distinctly affirmed in words ;' and the plaintiff's cause of action in this case derives no additional strength from his offer to return the property. The refusal of the defendant to return the price of the property was not a disaffirmance or avoidance of the contract by him ; and unless lie had the money in his possession, so that he could re- ■ store it to the plaintiff when the horse was tendered back to him, no action of trover for it could be sustained against him. This was held in the case of Fitts v. Hall. We tiiink that the fair result of the American as well as of the English cases is, that an infant is liable in an action ex delicto for an actual and wilful fraud only in cases in which th e form of action does not suppose ;fe:^ t hat a contra^ ^^ T^f « "'^i'itf^i ; but that, where thp gravamen of the" fraud consists in a transaction which really originated in contract, the plea of infancy is a good defence. For simple deceit on a con- tract of sale or exchange, there is no cause of action, unless some damage or injury results from it; and proof of damage could not be made without referring to and proving the contract. An action on the case for deceit on a sale is an affirmance by the plaintiff of the co^Rtract of sale ; and the liability of the de- fendant in such an action could not be established without taking notice of and proving the contract. It was held by this Court in West v. Moore, uhi supra, that thC' deceit or fraud to charge an infant must be wholly tortious ; and that, if the matter arises from contract, although infected with fraud, it cannot be turned into a tort to charge him by a change in the form of action ; and ihis principle fully sustains the defence of infancy in this action. We think that there is no greater liability for deceit resulting from the fraudulent concealment by an infant of a material fact, than there is for his false and fraudulent affirmation in respect to the same fact ; and if the recognized rule of law by which our judgment is controlled is wrong, it should be changed by statute, 118 INFANCY. as it has been changed in some other States. Code of Iowa, 1851, p. 224, § 1489;! Compiled Laws of Kansas, 1862, p. 720, c. 146, § 3. It was well said by Gibson, C. J., in Wilt v. Welsh, ubi supra, that, "in contemplation of law, an infant of three years is not inferior in discretion to one of twenty ; " and it is to be remembered, that no general principle of policy can be established without being the occasion of hardship or injustice in particular cases. Judgment of the County Court for the defendant on demurrer to the defendant's plea affirmed. In Eaton v. Hill, 50 N. H. 235, the authorities are well collated, as follows: Case, by Eaton & Whittemore v. Charles E. Hill and Dana Cummings. The declaration and plea of Charles E. Hill make part of the case, and to the plea the plaintiffs demurred generally. Declaration. " In a plea of the case for that the said defendants, on the twenty-fourth day of June, 1870, at Man- chester aforesaid, in the county aforesaid, hired of the said Eaton & Whitte- more a certain horse and carriage, to ride from said Manchester to said Nashua, for a certain price; and the said Eaton & Whittemore delivered to the said defendants the said horse and carriage for that purpose. Yet the defendants so carelessly and immoderately drove said horse, that by means thereof the said horse, on the said twenty-fourth day of June, 1870, at Nashua aforesaid, died." Plea. " And the said Charles E. Hill, who is under the age of twenty- 1 Sec. 2541 of Revision of 1860. ler v. Marchant, 30 Iowa, 350. The Under-this section, it is held that suit statute referred to reads thus: — may be brought and judgment ren- " Sec. 2540. A minor is bound not dered against a minor during his mi- only by contracts for necessaries, but nority, in cases where, on account of also by his other contracts, unless he the minor'sovvn misrepresentations as disaffirms them within a reasonable to his majority, or from his having time after he attains his majority, and engaged in business as an adult, the restores to the other party the money other party had good reason to believe or property received by him by virtue the minor capable of contracting. of the contract, and remaining within Oswald h). Broderick, 1 Clarke (Iowa), his control at any time after his at- 380. See also Prouty v. Edgar, 6 taining his majority. Clarke (Iowa), 372. But to render an " Sec. 2541. No contract can be infant who engages in business, and thus disaffirmed in cases where, on thus holds himself out as capable of account of the minor's own misrepre- contracting, liable under this section sentations as to his majority (a), or, (2641), his infancy must have been from his having engaged in business unknown to the party contracting with as an adult, the other party had good him. If known to him, the statute reason to believe the minor capable of creates no shield to the contract. Bel- contracting." (a) Substantially this proposition, the law in Kilgore v. Jordan, 17 Tex. irrespective of statute, is stated to be 355. GILSON V. SPEAE. 119 one years, by Charles E,. Morrison, his guardian, who is admitted by the Court to defend for him, comes and defends, &c., -when, &c. ; and says, that at the time of the letting, careless, and immoderate driving and death of the horse therefrom, in said declaration mentioned, the said Charles E. Hill was under twenty-one years of age, — to wit, was of the age of eighteen years, and no more, and this he is ready to verify. Wherefore he prays judgment, if the plaintiffs their action aforesaid ought to have or maintain against him, and for his costs," &c. Bellows, C. J. The substance of the declaration is, that the defendant, having hired the plaintiff's horse for a short journey, drove him so carelessly and immoderately as to cause his death. No promise is alleged to drive him moderately and with due care; but the plaintiffs put their case upon the ground of a breach of duty by the defendant, and the doing of a tortious act, and the question is whether a minor is liable in such .case. On this point the authorities are not altogether harmonious. In Fitts v. Hall, 9 N. H. 441, the cases were examined, and this principle deduced from them, in the opinion by Parker, C. J., that, '.' if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract, by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wil- ful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable." In that case it was decided that an infant was liable for deceit in falsely representing himself to be of age, and thereby induc- ing the plaintiff to sell him goods on credit, and afterwards avoiding his prom- ise to pay by pleading infancy. The general doctrine of Fitts v. Hall is fully approved in Prescott v. Norris, 32 N. H. 103, per Peklky, C. J., and is sup- ported by the reasoning of the Court in Woodman v. Hubbard, 25 N. H. 67, 73. Indeed, it would seem to be too clear to admit of controversy that an infant bailee must be liable for the injury or destruction of the thing bailed, by his positive, wilful, and tortious act, even although it was part of the con- tract, express or implied, that the goods should be safely returned. As if, in the case of the bailment of a horse, he wilfully beat him to death, or wilfully drove him so-immoderately as to endanger his life, and knowing that he did so, and actually causing his death. Such acts, indeed, would be wholly un- authorized by the contract of bailment; and in respect to them the infant would stand as if no such contract existed. So that an action of trover might be maintained against him on the ground that the bailment was thereby deter, mined. Wentworth v. McDuffee, 48 N. H. 402. It does not follow from this that, for every case of immoderate driving for which an adult would be liable, an infant bailee would also be liable. The bailee in these cases is understood , to stipulate for ordinary care and skill in the use of an animal so bailed ; and for any injury caused by the want of it, he is liable. In the case of the infant, however, his promise to use due care and skill does not bind him ; but he is still liable for positive, tortious acts, wilfully committed, whereby the thing bailed is injured or destroyed. If, through want of skill and experience, the animal is unintentionally injured by the infant, it might well be contended 120 INFANCY. that he would not be liable, because he has made no binding promise to exer- cise such skilL There are cases which hold that an infant who hires a horse for a journey is not liable for an injury caused by immoderate driving. The case of Jennings v. Rundell, 8 T. R. 335, is of this character; and the Court held that the course of action arose out of a contract, and that the infant could not be made liable by changing the form of action to tort. This case is criti- cised and doubted by Parker, C. J., in Fitts v. Hall, upon the ground that Lord Kenyon seemed to regard the injury as resulting from an accident, without adverting to that part of the declaration which might, with proper proof, have made a case of conversion. It is very true that Lord Kenyon, in his opinion, assumes that the injury to the horse was accidental ; although the declaration alleges that the defendant wrongfully drove the mare immoder- ately, and so caused the injury. The other judges also assume that the cause of action was substantially a breach of contract ; and if this were so, the deci- sion was clearly right, and would not conflict with the doctrine of Fitts v. Hall. There are other authorities that accord with Jennings ». Rundall. See 1 Am. Lead. Cases, 4th ed. 261-263, and cases cited. In Schenk v. Strong, 1 South. 87, infancy was held to be a good bar to an action on the case alleging that a chair was lent to defendant for a particular journey, to be used carefully, and returned at a specified time; yet that he went on a different journey, carelessly broke it, and did not return it at the time agreed, thereby violating his en- gagement in every particular. In all respects, except the going a different journey, this has the character of a mere breach of contract, for which the infant cannot be made liable by changing the form of action. The using the chair for a different joujsney was not a mere breach of contract, but a positive tortious act, for which the infant was liable in some proper form of action. Homer v. Thwing, 3 Pick. 492; Towne et al. v. Wiley, 23 Vt. 353. In such cases the infant stands like an adult, and is liable on the ground that using the thing bailed for another purpose is a conversion. In such case an adult is clearly liable. Woodman v. Hubbard, 25 N. H. 72, where it was held by Perley, J., that driving a horse to a place beyond the limits for which he was hired, was a wrongful invasion of the plaintiff's right of property, and not a mere breach of contract; and the case Homer v. Thwing is cited and ap- proved. The judge says that this case and Vasse v. Smith, 6 Cranch, 231 ; Campbell v. Stakes, 2 Wend, 137, and Mills v. Graham, 1 Bos. & P. N. R. 140, are strong authorities to the point that an infant who receives goods on a contract, and disposes of the property without right, is liable in trover. In Mills V. Graham, 1 Bos. & P. N. R. 140, it was held that an infant who had received of the plaintiff skins to be dressed and returned was liable in trover for refusing to return them on demand. In Parsons on Cont. 264, it was laid down that, for a tort or fraud which is a mere breach of his contract, an infant is not liable; but where the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable: as, if he hires a horse for an unnecessary ride, he is not liable for the hire; but if, in the course of the ride, he wilfully abuses and injures the horse, he is liable for the tort; and if he should sell the horse, trover would lie. In 2 Greenl. Ev. § 368, it is laid down, that an infant bailee of a horse is not liable for * EATON v. HILL. 121 treating him negligently or riding him immoderately; but is liable if he goes to a different place, or beats the animal to death. In Campbell v. Stakes, 2 Wend. 137, it was held that, if an infant who has hired a horse wilfully and intentionally injures the animal, trespass will lie against him, or if he does any wilful or positive aet which amounts to a disaffirmance of the contract; but if he neglect to use him with ordinary care, or to return him at the time agreed on, he is not liable. This case is cited with appro- bation in Fitch i\ Hall. Campbell v. Stakes was an action of trespass ; and the Court held that infancy, with an averment that the injury ooeua'red in driving the horse through the unskilfulness and want of knowledge, discre- tion, and judgment of the defendant, was a good plea. In Towns et cd. v. Wiley, 23 Vt. 359, the dqptrine is said to be that infants are held liable for positive and substantial torts, but not for violations of contracts merely, although by the rules of pleading a plaintiff might declare in tort or con- tract at his election; and in this case Judge Bedfield indorses the doctrine of Fitts V. Hall. We think, then, that the doctrine is well established that an infant bailee of a horse is liable for any positive and wUful tort done to the animal distinct from a mere breach of contract, — as, by driving to a place other than the one for which he is hired, refusing to return him on demand after the time has expired, wilfully beating him to death, and the like; so, if he wilfully and intentionally driv« him at such an immoderate speed as to eeriously endanger his life, knowing that it will do so. In Wentworth v. McDuffee, 48 N. H. 402, such driving by an adult was held to be a con- version ; and, for aught we can see, the same principle would apply to the case of an infant. In all these cases it may be urged that the law implies a promise, on the, part of the bailee, to drive the horse only to the appointed place, to return him at the end of the journey, not to abuse him or drive him immoderately; and that afailui-e in either respect is merely a breach of con- tract. So it might be said that the law would raise a promise not to kill him; and yet no one would fail to see that to kill him wilfully would be. a positive act of trespass, for which an infant should be liable the same as if there were no contract. Between acts that are to be regarded as mere breaches of the contract of bailment and positive and wilful torts, a line must be drawn somewhere; and although it must often be diiBcult to dis- criminate between them, we think it is safe to hold that the acts we have named, and others of a like character, are positive torts for which an infant is liable, and not mere breaches of contract. When the infant stipulates for ordinary skill and care in the use of the thing bailed, but fails for want of skill and experience, and not from any wrongful intent, it is in accordance with the policy of the law that his privilege, based upon his want of capacity to make and fully understand such contracts, should shield him, A failure, in such a case, from mere want of ordinary care or skill, might well be re- garded as in substance a breach of contract for which the infant is net liable, even although in ordinary cases an action ex delicto might be sus- tained. But when, on the other hand, the infant wholly departs from his character of bailee, and by some positive act wilfully destroys or injures the thing bailed, the act is in its natiwe essentially a tort, the same as if there 122 INFANCY. had been no bailment, even if assumpsit might be maintained in the case of ail adult, or a promise to return the thing safely. In the case before us, the declaration embraces a charge of immoderate driving, whereby the plaintiff's horse was killed; and, as we have seen, the proof might be such, under a proper declaration, as to charge the infant; and it might be such as to show that the immoderate driving was unintentional, and wholly owing to want of experience and discretion, in which case he would not be liable. The ques- tion then is, whether an action on the case, as tliis is, can be maintained for any cause of action that may be proved under this declaration. If it can be, the demurrer must be sustained. In some cases it is held, that by a positive and wilful tort the bailment is determined, and the remedy must be by action of trespass or trover, and that case will not lie. Sugh is the doctrine of Camp- bell V. Stakes, before cited ; and the Court put it upon the ground that the action on the case necessarily supposes the defendant to have a right to the possession of the property, under the contract of hiring, at the time the injury was committed, and that by declaring in case the plaintiff affirms the exist- ence of such contract, and the plea of infancy would be a good defence to such action, — citing Jennings v. Rundall, 8 T. R. 335, and Green v. Green- bank, 2 Marshall, 485; 4 Eng. Com. Law, 375. To the correctness of this view we are unable to subscribe. If a wrong has been done to the property bailed, of such a nature that an action on the case would ordinarily be an appropriate remedy, and at the same time an infant would be liable for it in any form of action, we perceive no reason for holding that case would not lie against him. If the declaration sets out a cause of action which is good against an infant bailee, by reason of its being a positive and wilful wrong, and not a mere breach of contract, and at the same time, according to the rules of pleading, an action on the case appears to be the appropriate remedy, we think it clear that such an action would be maintained. If it were neces- sary that the bailment should be determined in order to maintain the action, the facts stated would show it, the same as it would be shown by stating a conversion in trover. In many cases trespass or trover will lie for injuries done by bailees, and to maintain those suits the bailment must have been determined; and, this is shown by proof of tortious acts inconsistent with the bailment, and, from the bringing of these suits, it may fairly be inferred that the plaintiff elects to consider the bailment at an end. In bringing an action on the case setting out such a positive and wilful tort as is wholly inconsistent with the contract of bailment, and amounts to a disaffirmance of it, the same inference may be made. In all these cases the actions are based upon acts which disaffirm the contract of bailment, and the bringing the suits is an election by the bailor to consider the bailment terminated ; and this applies to an action on the case for a tort which disaffirms the contract, the same as to trespass or trover; the latter is indeed but a subdivision of actions upon the case. We are brought then to the conclusion, that case will lie against an infant bailee for a positive and wilfnl tort of such a nature that, upon general prin- ciples of pleading, case is a proper remedy. Whether such a cause of action exists here, remains to be seen. The declaration does not state such a cause. FITTS V. HALL. 123 It states a bailment of the horse to defendant, and that he drove him so care- lessly and immoderately as to cause his death. This we think does not go far enough to charge an infant bailee. It indeed goes no farther than to charge him with what is in substance a breach of contract, and to that the plea of infancy is a good defence. In tliis respect it comes within the princijile of Jennings v. Rundall, 8 T. R. 335, before cited. It is true tliat the immoderate driving may have been a positive and wilful act, so as to make the infant liable; but we think that, unless it is so stated, the plea of infancy is a good defence. If the facts will justify it, the plaintiffs may have leave to .amend their declaration upon terms which will be the costs of demurrer. Whether the facts will justify such an amendment of the count in case as will support it, remains to be seen. That a count in case might under some circum- stances be the appropriate remedy, may be inferred from the case of Gilson V. Fisk, 8 N. H. 404; and the cases cited, as well as the case of Waterman v. Hall, 17 Vt. 128, and numerous cases where it is held that a party may, at his election, sue in trespass, or waive the trespass and sue in case. Under some circumstances trover would lie, as we have seen ; and as case and trover may be joined, there would seem to be no objection to adding a count in trover by way of amendment, if the identity of the cause of action would be pre- served. As it now stands, the conclusion is, the Demurrer must be overruled. FiTTS V. Hall, 9 N. H. 441. — The declaration alleged that, on the 26th day of May, 1830, the plaintiff owned and was possessed of a large quantity of palm-leaf and chip hats ; that a conversation was then had between the parties about the defendant's purchasing the hats of the plaintiff; that the plaintiff, not knowing whether the defendant was of age, inquired of him whether he was of full age or not; and that the defendant, well knowing that he was an infant under the age of twenty-one years, and intending to deceive and defraud the plaintiff, falsely and deceitfully represented that he was then of full age; and that thereupon the plaintiff, confiding in that representation, sold and delivered the hats to the defendant, on a credit of six months, and took his note therefor, on that time, for the sum of $57. The declai'ation further set forth that, the note not being paid when due, the plaintiff sued the defendant thereon, and duly entered and prosecuted his action ; that the de- fendant pleaded, first, the general issue, and, secondly, infancy; that the plaintiff joined the general issue, and to the plea of infancy replied that the defendant, at the time of giving the note, represented himself to be of full age, &c. ; that to this replication there was a demurrer and joinder, and it was considered by the Court that the replication was bad and insufficient; and thereupon the plaintiff became nonsuit, and the defendant recovered judgment for his costs, taxed at $37.62; and that the defendant, by his said false and deceitful affirmation, obtained possession of said hats, and deceived and defrauded the plaintiff, and has never paid said note, nor redelivered the hats to the plaintiff, nor paid him therefor. There was also a count in trover for the hats. The plaintiff on the trial introduced evidence in support of the allegations in the first count. 124 IHFANCT. The Court instructed the juvy, that, if they were satisfied, from the plain. tiff's evidence, of the truth of the facts set forth in the declaration, they ■might, for the purpose of this trial, consider the .action sustainable in point of law ; and that, if they found a verdict for the plaintiff, they might find such an amount as would indemnify the plaintiff for the loss he had sustained in ooasequence of the defeadant's false and fraudulent representations. The jury found a verdict for the plaintiff for f 128,91; whereupon the defendant moved that the verdict be set aside, and a nonsuit entered. Christie, for the Sefendant, contended : 1, That all the facts in the first count, if properly stated and proved, were not sufficient in law to entitle the plaintiif to maintain this action. 2 Kent's Com.. 197, and cases cited. 2. That the plaintiff was not at liberty to abandon the contract, and call jipon the defendant in an action of tort, in order to charge him ; especially as he had attempted to enforce the contract after he knew the ground of defence. 3. That, if the plaiiQtiff recovered at all, he ought only to recover the amount of the note, and not the costs and expenses of the suit upon the note. 4. That the count in trover could not be maintained without proof of a demaod a,nd refusal, as tlie g'oods were voluntarily delivered to the defendant by the plaantifE. /. P. Hale, and James Bell, for the plaintiff, eited Com. Dig., "Action ou the Case for Deceit," A. 10; 2 Kent's Com. 241; Badger v. Phinney, 15 Mass. 359 ; Stoolfoos v. Jenkins, 12 Serg. & Kawle, 399 ; Homer v. Thwing, 8 Pick. 493; Bristow v. Eastman, 1 Esp. 172; Vasse v. .Smith, 6 Cranch, 225; Jen- nings p. Rundall, <8 D. & E. 335^ Eosdick v. Collins, 1 Stark. 173 ; 2 .Stark. Ev. 849; 2 Wheaton's Selwyn, 457. Parkke., C. J, The general principle applicable to this case is, that an iiifant is liable in actions ex delicto, whether founded on positive wrongs, or .constructive torts, or frauds. 2 Kent's Com. 197; 1 Chitty's PL 65. Thus he is liable in trover, although the goods converted were in his possession by virtue of a previous contract. Vasse v. Smith, 6 Cranch, 231; Homer t. Thwing, 3 Pick. 492. And in detinue, where be received skins to finish, and afterwards withheld them. Mills v. Graham, 4 Bos. St. Pul. 140. And assumpsit for money had and received has been sustained against an infast for money embezzled. Bristow v. Eastman, 1 Esp. 172; s. c. Peake, 222. But a matter of coutract, or arising esc contractu and properly belonging to that class, is not to be turned into a tort, in order to charge the infant by a change of the form of action. 2 Kent's Com. 197. As, for instance, where the plaintiff .declared that, having agreed to exchange mares with the defend- ant, the defendant, by falsely warranting his mare to be sound, well knowing her to be unsound, .falsely and fraudulently deceived the plaintiff, &c.; held, that infancy was a good plea in Bar. Green v. Greenbank, 2 Marshall, 485; 4 E. C. L. 375. In Jennings v. Rundall, the plaintiff declared in case, that, at the request of the defendant, he delivered to him a certain mare, to be moderately ridden, and the defendant wrongfully rode her in an immoderate, excessive, and improper manner, and took so little care of her that, by reason thereof, she was strained and damaged; and, in a second count, alleged that he delivered the mare to the defendant to go and perform a reasonable and FITTS Vr HALL. 125 moderate journey, and the defendant wrongfully rode and worked her a much longer journey. On a demurrer to a plea of infancy, the Court considered the action as founded substantially on the contract, and gave judgment for the defendant. Lo)-d Kekyon said: " The plaintiff let the mare to hire; and in the course of the journey an accident happened, the mare being strained ; and the question is, whether this action can be maintained. I am clearly of opinion that it cannot: it is founded on contract. If it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infanta." 8,D. & E. 336. It is undoubtedly true, that the substance of all the matter thus alleged in the plaintiff's declaration, in Jennings v. Kundall, might have been set forth in an action of assumpsit; and regarding it, as Lord Kenton did, as an injury resulting from an accident, it would seem to be an attempt to convert an action founded on contract into a tort. Bat the attention of the Court does not seem, in the opinion delivered, to have been directed to the question, whether part of the matter thus alleged might not, upon proper proof, have sustained the count in trover, which was also contained in the declaration, or an action of trespass. It is apparent, from the cases before cited, that an infant may be charged for a tort arising subsequent to a con- tract, and so far connected with bis contract that but for the latter the tort would not have been committed. In Homer ». Thwing, the defendant hired a horse to go to a place agreed on, but went to another place, in a different direction ; and he was held liable in trover for an unlawful conversion. And in Campbell u. Stakes, 2 Wend. 137, where an infant took a mare, on hire, and drove her with such violence, and otherwise cruelly used her, that she died, it was held that trespass might be maintained against him; and the judgment of the Supreme Court was unanimously confirmed by the Court of Errors. Chancellor Walworth said: " If the infant does any wilful and positive act, which amounts on his part to an election to disaffirm the con- tract, the owner is entitled to the immediate possession. If be wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not prortect him." The principle to be deduced from these authorities seems to be, that if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful, and positive wrong of itself, then, although it may be con- nected with a contract, the infant is liable. Upon this principle, the count in trover, in this case, cannot be supported upon the evidence offered. The goods went into the possession of the defendant by virtue of a contract, which he has avoided by reason of his infancy. The effect of that contract was to authorize him to appropriate the goods to hia owrt use as owner, and to dis- pose of them at his pleasure. If he has done so by using them, or selling them to third persons, so that he cannot redeliver them, neither his refusal to pay nor a refusal to deliver the goods can be considered as anything more 126 INFANCY. than a breach of contract. A refusal to pay is a breach of the express con- tract ; and a refusal to return the goods, after he had converted them ■with the assent of the plaintiff, and when he no longer had it in his power to return them, could be considered as no more than a breach of an implied assumpsit to return the goods, ypon request, after he had rescinded the contract by a refusal to pay. Were this otherwise, the law would furnish him uo protection against his contract in such case ; for by a subsequent demand of tiie goods, which he had not the power to comply with, he would be made liable for their value in trover, although he could not be charged in assumpsit. It does not appear in this case that there was such a demand ; but if one was made, there is no evidence that the defendant, after he denied his liability on the contract, could have complied with it. Still less is there any ground for charging the defendant in trover, because the plaintiff was induced to make the conta-act upon which he received the goods, by his misrepresentations. The goods were, notwithstanding, received upon a contract ; and if the contract had not been rescinded by the defendant, upon the ground of his infancy, there would have been no pretence for an action of trover. His thus rescinding it cannot be held, of itself, to be a conversion. If after the defendant in this case had interposed his plea of infancy, and refused to perform the contract, the plain- tiff had demanded the hats, and the defendant, having them in his possession, had refused to deliver them, that would have been a wilful, positive wrong of itself, disconnected from the contract ; and upon such evidence the count in trover might have been maintained. Where goods were sold to an infant, on a credit, upon his representation that he was of full age, and a plea of infancy was interposed, an action of replevin was sustained against his administrator, after a demand upon him. Badger v. Phinney, 15 Mass. 359. In this latter case, the defence of infancy was made by the administrator of the infant ; the demand of the goods was made upon him, and the action sustained against him; but the Court said: "The basis of this contract has failed, from the fault, if not the fraud, of the infant; and on that ground the property may be considered as never having passed from, or as having revested in, the plaintiff." And upon this ground, if the infant, having rescinded his con- tract, withholds the goods purchased, after a demand which he had power to comply with, there seems to be no good reason why he should not answer in trover, the same as for any other conversion of property lawfully in his pos- session. 6 Cranch, 231; 4 Bos. & Pul. 140, before cited. The next question is,' whether this action can be maintained against the defendant, for the fraud- ulent representation that he was of age, by reason of which the plaintiff was induced to sell him the hats, on a credit, and to take his note. An action may be maintained for false and fraudulent representations, in order to induce a party to sell, and whereTjy he was induced to sell, goods to one of the de- fendants, on a credit. Livermore v. Herschell, 3 Pick. 33, 36. But Johnson V. Pie, 1 Lev. 169, was " case, for that the defendant, being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him 100/., and so he had cheated the plaintiff by this false affirmation." After verdict for the plaintiff, it was moved in arrest of judgment that the action would not lie for this false affirmation, but the plaintiff ought to have. informed himseli riTTS V. HALL. 127 by others. " Kelynge and Wyndham held, that the action did not lie, because the affirmation, being by an infant, was void; and it is not like to trespass, felony, &o., for there is a fact done. Twysden doubted, for that infants are chargeable for trespass. Dyer, 105. And so, if he cheat with false dice, &c." The report in Levinz states that the case was adjourned; but in a note, refer- ring to 1 Keb. 905, 913, it is stated that judgment was arrested. If this case be sound, the present action cannot be sustained on the first count. From a reference in the margin, it seems that the same case is reported, 1 Sid. 258. Chief Baron Comyks, however, who is himself regarded as high authority, seems to have taken no notice of this case in his Digest, " Action on the Case for Deceit;" but lays down the rule that, "If a man affirms himself of full age when he is an infant, and thereby procures money to be lent to him upon mortgage," he is liable for the deceit; for which he cites 1 Sid. 183; Cora. Dig. " Action," &c., A. 10. We are of opinion that this is the true principle. If infancy is not permitted to protect fraudulent acts, and infants are liable in actions ex dslioto, whether founded on positive wrongs, or constructive torts, or frauds (2 Kent, 197), as for slander (Hodsraan v. Grissel, Noy, 129) and goods converted (auth. ante), there is no sound reason that occurs to us why an infant should not be chargeable in damages for a fraudulent misrepresen- tation whereby another has received damage. In. the argument of Johnson V. Pie, Grove and Nevill's case was cited, " where, in case against an infant for selling a false jewel, affirming it to be a true one, 't was adjudged the action did not lie; " and the case seems to have been considered as if the affirmation that he was of age was to be regarded as part of the contract. But there is a wide difference between the two cases. In Grove and Nevill's case, the subject-matter of the contract was the jewel which was sold. The affirmation that it was a true one was a false warranty of the article sold. If the defend- ant had been of age, assumpsit might have been maintained. The infant was not to be charged by adopting a different form of action. But the represen- tation in Johnson v. Pie, and in the present case, that the defendant was of full age, was not part of the contract, nor did it grow out of the contract, or in any way result from it. It is not any part of its terms, nor was it the con- sideration upon which the contract was founded. No contract was made about the defendant's age. The sale of the goods was not a consideration for this affirmation or representation. The representation was not a foundation for an action of assumpsit The matter arises purely ex delicto. The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the hats: but that by no means makes it part and parcel of the con- tract. It was antecedent to 'the contract; and if an infant is liable for a posi- tive wrong connected with a contract, but arising after the contract has been made, he may well be answerable for one committed before the contract was entered into, although it may have led to the contract. It has been said that " all the infants in England might be ruined," if infants were bound by acts that sound in deceit. But this cannot be a reason why the action should not be maintained for fraudulent wrongs done; for the same reason would seem to apply equally well in cases of slander, trover, and trespass. The latter are as much the results of indiscretion as the former, and quite as likely to be ,128 INFAHCT. committed. In Bao. Abr., "Infancy," I. 3, it is said: " Also, it seems, that if an infant, being above the age of discretion, be guilty of any fraud im affirm- ing himself to be of fuU age, or if, by combination with his guardian, &c., he make any contract or agreement, with an intent afterwards to elude it by reason of his privilege of infancy, that a Court of Equity wiE deem it good against him according to the circumstances of the fraud." 3 Gwillim's Bac. 604. The authorities cited do not seem to state, specifically, the first branch of the proposition in the text ; but there are several cases sustaining the gen- eral proposition, that an infant may be bound in equity by a contract which the other party has been induced to enter into by his fraudulent representation or concealment. Lord Teynham v. Webb, 2 Ves. Sen. 212 ; Evroy o. Nicholas,. 2 Eq. Cas. Abr. 489, and cases cited ; Beckett o. Cardl^, 1 Brown Ch. 358 ; Fonb. Eq. (4th Am. ed.), 80, note z. At law, he is not boimd by the con- tract, although it was procured by his fraudulent representation that he was of full age. Conroe v. Birdsall, 1 Johns. Cas. 127. If in eqnity the infant may be bound by the contract, because of his fraud in procuring it, he may well at law be answerable for the previous deceit through which it was pro- cured, if he has hereby obtained the property of another, and refuses perform- ance on his part. Our conclusion is that the action may be sustained on the first count. But we are of opinion that the jJaintiff is not entitled to recover in damages the costs of the action he commenced on the note, or those which he was obliged to pay in that suit. For aught which appears, he knew, when he commenced that action, that the defendant was an infant^ and would avail himself of his infancy. If he chose to tiy an experiment, he must abide the consequences. For this reason the verdict must be set aside, and a New trial granted. cannel v. buckle. 129 Cannel d. Buckle. (2 Peere Williams, 243; s. c. 2 Eq. Ca. Abr. 23, pi. 24; 136, pi. 1. High Court of Chancery, 1724.) Aniemupiial Agreements between Husband and Wife, in Contemplation of Mar- riage ; — in Equity and at Law. A FEME SOLE was seised in fee of lp,nd of about 101. per annum, and, designing to marry, agreed with her intended husband, that she upon the marriage would convey her lands to the husband and -his heirs ; and for that purpose, previous to the marriage, she gave a bond of 200?. penalty to the intended husband, in which the intended marriage was recited ; and the condition was that, in case the marriage took effect, she would convey all her said lands to the husband and his heirs. The marriage took effect, and there was issue of the marriage, and the wife made her will' reciting her said bond, and devised all her land to her husband in fee, and died. The issue of the marriage died without issue ; after which the husband enjoyed the land during his life, and on his death the heir of the husband brought a bill against the heir of the wife, to compel him to convey the lands of the wife to the heir of the husband. Obj. This bond given by the wife became void upon the inltermarriage because it was then^ suspended; and a personal action once suspended is extinct; besides, wherever no action lies at law to recover debt or damages, there no suit in equity lies to compel a specific performance, which specific performance is given in equity only in lieu of damages ; and 1 Chan. Cases, 21. (Lady Darcey's case), was cited, proving that where a woman, on a treaty of marriage, agrees with a man, or a man with a woman, there the subsequent intermarriage determines the agreement. 1 v., Gage V. Acton, Com. Kep. 67, and 1 Salk. 325 ; s. c. Acton v. Peirce, 2 Vem. 480. 9 130 COVEETUHE. Lord Chancellor. The impropriety of the security, viz., a bond from a woman to a man whom she intends to marry, or the inaccurate manner of wording such bond, is not material ; for it is sufficient that the bond is a written evidence of the agreement of the parties, that the feme in consideration of marriage agrees the man shall have the land as her portion ; and this agreement, being upon a valuable, consideration, s hall be executed in equity. - It is unreasonable that th^e intermarriage, upoa which alone the bond is to take effect, should itself be a destruction of the bond ; and the foundation of that notion is, that in law the hus- band and wife being one person, the husband cannot sue the wife on this agreement; whereas, in equity it is constant experience that the husband may sue the wife, or the wife the husband, and the husband might sue the wife upon this very agreement in the principal case. Neither- is it a true rule, which had been laid down by the other side, that, where an action cannot be brought at law on an agreement for damages, there a suit will not lie in equity for a specific performance, as is plain from this case : — Suppose a feme infant seised in fee, on a marriage with the con- sent of her guardians, should covenant in consideration of a settlement to convey her inheritance to her husband; if this were done in consideration of a competent settlement, equity would execute the agreement, though no action would lie at law to recover damages. ^ But in regard this bond was a very stale one (being given so long since as in 1678), and the husband had for so long a time omitted to sue upon it in equity, the Court ordered a trial at .law to see whether this bond w as execute d or not, and all other matters to be respited till after the trial.* 1 As to the case put by Lord Mac- ford «. Lane, 1 Bro. Ch. 106 ; Williams CLE8FIELD, of the feme infant, mde v. Williams, 1 Bro. Ch. 152 ; Slocombe Lucy U.Moor, 3 Bro. P. C. 514; Price e. Glubb, 2 Bro. Ch. 545. Contra, V. Says, Barnard. 122; Seameru. Bing- etiam, vide Shaw v. Boyd, 5 S. & B. ham, 3 Atk. 56; Harvey v. Ashley, 3 312. Atk. 607, 615; Earl of Buckingham- 2 Rgg. Lib. A., 1723, fol. 484. shire v. Drury, 5 Bro. P. C. 570 ; Burn- RIPFON V, DAWDING. 13! BflPPON V. Da\?ding.i (Ambler, 565. High Court of Chancery, 1769.) Antenuiplial Contract between Husband and Wife, to allow Wife to dispose of her Freehold Estate by Deed or Will. In Equity. Dorothy , -w-idcw-, was seised of a freehold estate; and, previous to her marriage with Deeping, her second husband, a bond was entered into by Deeping, with a condition empower- ing her to dispose of her freehold estate by deed or will, not- withstanding her coverture. No settlement appeared to have been made upon the occasion, nor any other transaction passed but the ab&ve-mentioned bond. The Wife afterwards by will gives her estate to her younger children in fee. The eldest son being dead, and leaving a daugliter, his only | child; bill by the younger children against the daughter, to have) a conveyance of the estate. And the case of Wright' v. Lord Gadogah,j in Chancery, afterwards in the House of Lords, was cited as an authority in point. And it was said, the principle upon which that case was determined holds in this case; that is, the performance of the marriage agreement, as against the heir-at-law of the contracting partyi On the other side, it was said, that this case differs materially from Wright v. Lord Cadogan. In that case, the legal interest was in trustees; in this, the legal interest remained in the wife, and nothing passed by the devise. That, whatever- might have been the case if the wife had made a disposition for a valuable consideration, yet, it being a question between volunteers, the Court will not interfere to compel a performance of the agreement. Lord Camden, Chadeellor : It is a mistake to call it a question between volunteers. ^ The agreement was made on marriage, ~f 1 Reg. Minute Book, Mich. Term, this cause, as reported in Sergt. Hill's 1769; 8. 0. Hill, MSS., vol. 3, 429 ; MSS., vol. 3, 429, see Blunt's ed. of vol. 10, 236; vol. 11, 66. For a note Ambler's Ch. 566, note (3). of what took place at the hearing of ^ See Harvey d. Harvey, 1 Atk. 567. 132 COYERTUEE. and the wife might have compelled the husband to join with her in a fine. Though the two case's diffef, in respect that the wife had only an equitable interest in the one and the legal interest in the other, yet the principle of determination is the same in both; equity follows the law. And, as the Court decreed performance of the agreement in Wright v. Lord Cadogan, which was a trust interest, it will do so in this, which is the case of a' legal interest. Therefore decree conveyance, ^c. Bradish v. Gibbs. <3 Johns. Ch. 523. Court of Chancery of New York, 1818.) Antenuptial Agreement between Husband and Wife, to allow Wife to dispose of her Real Estate by Will. In Equity. — Execution of a Power by Will. In April, 1814, the plaintiff and Helen Elizabeth Gibbs en- tered into a marriage contract ; she being seised in her own right of a valuable real and personal estate, which the plaintiff agreed should be at her disposal, notwithstanding the contemplated marriage. Articles of agreement were thereupon made and exe- cuted between them, under seal, dated the 20th of April, 1814, re'citing the treaty of marriage to be solemnized, and that she was possessed, in her own right, of certain personal estate, de- scribed in a schedule thereunto annexed, and might become enti- tled to other personal property not mentioned ; and that, whereas by the marriage, the personal property would vest in the plain- tiff, and, in case of his decease intestate, would go to his heirs ; and that, by the marriage treaty, it was agreed that in case of the death of the plaintiff, leaving her his survivor, without issue, the said personal property should vest in her absolutely, in like manner as if no marriage had taken place, — in order, therefore, to carry the said treaty of marriage into effect, the plaintiff, in consideration of the marriage, covenanted with the said Helen Elizabeth Gibbs that, if the marriage should take place, and the plaintiff should die, leaving his wife living, with- out issue by her at his death, then all the personal property BEADISH V. GIBBS. 133 described in the schedule and personal property not mentioned therein, of which the plaintiff, by virtue of the marriage, might become possessed, in right of his wife, either by gift, descent, purchase, &c., should on his decease vest in her, absolutely, in fee, &c. The plaintiff further covenanted, that, if any part or the whole of the real estate of which she was then seised, and which was mientioned and described in the said schedule, should be sold during the coverture, the proceeds of such sale, or the amount thereof, should be reinvested in other real estate in her name and for her use ; and that she should at all times during her cover- ture have full power effectually to dispose of, according to her pleasure by will, or by any instrument in writing, in the nature of and purporting to be so, all such real estate as she might at the time be seised of in her own right, either jointly or sever- ally; and to that end the will, or any instrument in writing purporting to. be such, of her, though made and executed during the coverture, should be equally valid as if she at the time of making thereof was a feme sole; and that the plaintiff, his heirs, executors, &c., would do all such acts as might be needful and proper, in law or equity, on his or their part, for carrying the same into effect. The real estate mentioned in the schedule was described as a lot and house in the city of New York, purchased of J. Shaw, and which cost $23,250. The parties, after the execution of the contract, were married, on the 21st of April, 1814, and lived together until her death in April, 1816. A contract had been entered into in February, 1814, by and on behalf of Helen Elizabeth Gibbs, with J. Shaw, for the purchase from him of the house and lot above mentioned ; the sum of $750 was paid as part of the purchase, and the residue was agreed to be paid on the delivery of the deed, on or before the 21st of May, 1814; and the balance, being $22,500, was paid by the plaintiff after the marriage, out of the personal estate of his wife, on the 29th of April, 1814 ; and the deed which had been previously executed by J. Shaw to Helen Elizabeth Gibbs, and delivered as an escrow to C. W., was delivered by him. The plaintiff and his wife took possession afterwards, and occupied the premises until her death ; and, the plaintiff has since continued in posses- sion, having, during the life of his wife, expended large sums in improvement. 134 COVEETUEE. In August, 1815, the wife of the plaintiff, in -pursuanoe of -the power reserved to her by the articles of agreement, made her will, in such a manner as would have passed all her real estate had she been a feme sole. The will in substance was, that she revoked all former wills, and gave and devised to the plaintiff, and his heirs for ever, all her estate, of what nature or kind soever, without reserve, whether real, personal, or mixed, or in possession, reversion, or remainder, and appointed the plainti-ff her sole executor. The testatrix died without issue, on the 7th of April, 1816, leaving the said will unrevoked, being then seised of the house and lot in question, leaving two brothers and thi'ee sisters her iheirs-at-law. One of the sisters after- wards died, on the 13th of January, 1817. The bill of the plaintiff prayed that the defendants, who are the two brothers and sisters of his deceased wife, should be decreed to exe- cute a conveyance to him of the legal estate in the said house and lot. The answer of the defendants admitted the facts stated in the bill, but denied that the wife of the plaintiff had adequate power to dispose of her real estate in equity by will, so as to vest the title in equity in her husband ; and they averred that the will did not operate in the nature of an appointment to vest the equitable title in the plaintiff ; and that the will being made during cover- ture, and in favor of the husband, was void as to the house and lot, both at law and in equity. On the argument of the cause, three points were raised for the consideration of the Court : 1. That the power reserved to Mrs. B. by the antenuptial con- tract was executed in equity by the instrument purporting to be her last will ; and that the plaintiff was, therefore, entitled to a conveyance from her heirs-at-law, of the legal estate, according to the prayer of the bill. 2. As the real estate in question was paid for out of the per- sonal estate of Mrs. B. , it may be considered in equity as a per- sonal estate; and, if so, her will would be a valid disposition of it. 3. That, at all events, the plaintiff was entitled to be reim- bursed the amount he had expended on the real estate in repairs and improvements. Welh, for the plaintiff. RiggB, contra. BEADISH V. GIBBS. 135 The Ohancelloe. The question in this case is, whether, the plaintiff, by reason of the antenuptial agreement and the subse- quent will, is entitled to the aid.ofithis Court, to compel the de- fendants, who are the heirs-at-law of the wife, and upon whom the legal title to the premises descended, to convey the same to him. I shall confine myself to the consideration of this important point; and, as my conclusion will be in favor of the plaintiff, the discussion of the subordinate points will .bpcome unnecessary. , This is a dry question, resting entirely on the technical rules of equitable jurisprudence; and I shall be .pbliged. to examine minutely the authorities which are applicable to tthe subject, and shall endeavor ; to ; extract , from, ithgm, the true, principle which ought to govern the case. , ' . It is settled that a /ewe eov^rt may execute by will, :in favor of her husband, a power given to her while sole over ;her real estate. , . . ■, - In Rich «. Beaumont,, 3. Bro.. P. C|.,i308, a;treaty of marriage was concluded between the a,pp6llant and his intended wife. She then conveyed an estate qf which she was seised, i-n trust, and with the declared intent to suffer a recovery, and that the recovery was to enure to the uses and upon the trusts declared, which were, among others, that the wdfe.ushould receive the rents and profits for her sole and separate use for life^, exclusive of her husband", and if she should leave issue, then, upon trust, that the trustees should convey to isuch issue, accordiug to her direc- tion by deed or will, and, in default of issue and in case she survived her mother; then to such uses and .persons ,as .she by deed or will should appoint. The recovery was suffered, and the marriage shortly after took place. The wife, during .cover- ture, had a son, and survived her mother and made her will, in which, among other dispositions, she gave to her only son the estate, with a reservation in favor of her husband of one half of the profits for life; she added, that, if her son should die, during his minority without lawful issue, that she then devised all her estate to her husband, the appellant in fee ; and she directed her trustees to convey her trust estate to such uses and ipurpos,es as were named in her will. She also gave all her personal estate to her husband, and made him the sole executor, and died. Her son died in infancy without issue, and the appellant, 136 COVEETUEE. apprehending that he was by the will entitled in equity to the fee of the estate, and to have a conveyance of the legal estate from the trustees, filed his hill, in 1724, againgt the heirs Qf his wife and against the trustees, praying for a conveyance of the legal estate. Lord Chancellor King dismissed the bill, on the ground that the appellant's remedy, if any, was at law. On appeal from this decree, it was a point assumed that, if the will was a good execution of the power, it was well executed in favor of the husband. The objection was that the power was not well executed by will, because a feme covert's will of land was, by law, void. The decree was reversed, and an order made that the Court of Chancery take the opinion of the K. B., whether the will was a good appointment of the estate. It appears that the Court of Chancery ordered a case to be settled for the opinion of the K. B. , and we have no further report of the case. But in Hearle v. Greenbank, 1 Vesey, 305, and in Peacock v. Monk, 2 Vesey, 190, Lord Haedwicke cited the case to. prove that a, feme covert might execute a power ; and it was stated by the counsel, arguendo, in Marlborough v. Godolphin, 2 Vesey, 64, that, in the K. B., where the case was sent, it was held a good appointment. Though this case was by a very unusual step referred to a Court of law, yet we must understand the decision to have been that the will was a good execution of the power in equity. The case was depending before an equity tribunal, to be decided upon equity principles; and Lord Haedwicke, in referring to that case, says that the point had been so determined "in this Court." At law, such a will is void; and in the very case of Peacock v. Monk, we find a decision of C. J. Willes cited, in which it was held, after a consultation with the other judges, that the husband could not give power to his wife to make a will of land. This determination meant, and it could only mean, that the devise of a feme covert, though made in pursuance of a power, was, equally with a will made without such power, void in a Court of law. This early case may, therefore, I apprehend, be relied on as a decisive authority in favor of the equitable title of the husband under his wife's will, executed in pursuance of a power created previous to her marriage, and that such a title may be enforced BKADISH V. GIBBS. 137 in equity against the heirs-at-law of the wife. The idea that the husband is in such a case to be deemed a volunteer, seems to be without foundation ; and, though it was mentioned by the counsel for the respondents, the decision of the Court of Appeals shows that the objection did not apply. But, in that case, the estate of the wife had been conveyed, previous to her marriage, to trustees, in trust for such persons as she should by deed or will appoint. The case is not, therefore, in all respects appli- cable to the one before me"; and the doctrine in Peacock v. Monk is supposed to be fatal to the present claim. The principal question in Peacock v. Monk, 2 Vesey, 190, was as to the validity of the wife's will of land purchased by her during the coverture ; and the observations of Lord Hardwicke, on which great reliance is placed, were mere dicta, not neces- sarily arising out of that case; and so they were considered, afterwards, in the case which I shall- presently mention, be- fore Lord NoRTHiNGTON. Lord Hardwicke admitted that "a woman on her marriage may take such a method as to prevent her real estate from going to her heir ; " but he doubted whether it could be done but either by way of trust, or of power over a use. "Suppose," he says, "a woman having a real estate be- fore marriage, and either before or after marriage, by a proper conveyance (if after marriage it must be by fine), conveys to trustees, in trust for herself during coverture, to her separate use, and then in trust for such person as she by deed or will should appoint, and, in default of appointment, to her heirs ; she marries, and makes such an appointment. It is a good declara- tion of the trust, and this Court will support that trust. So it may be done by her, by way of power over a use, as if she con- veyed the estate to the use of herself for life, remainder to the . use of such person as she by writing, &c. , should appoint, and, in default of such appointment, to her own use. This is a power reserved to her, and a. feme covert can execute a power. But can a. feme covert do this so as to bar her heir, by a bare agreement, without doing anything to alter the nature of the estate ? C^n a woman, having a real estate before marriage, in consideration of that marriage, enter into an agreement with her husband, that she may, by writing or by will, dispose of her real estate ? This rests in agreement, and if she does it, though it may bind her husband from being tenant by the curtesy, that arises from his 138 ..COiVDKTUKB. own agreement; but what is that to her heir? She is & fcToe covert, under the disability flf coverture, at ,the tinifi of .the jact done; and, ,if she attempts to make a will, the instrument is in- valid. The only question that could arise would be, whether such an agreement between her and. her .husband would not give her a right to come into equity, after marriage, to conipeliher husband to carry it into execution, and to join with hej in a fine to settle the estate on such trHSt, or -to such and such uses. And if it is such an agreement as the Court would .decree to ,be carried further into execution by a proper conveyance, then the question may be, whether the heir is not to be bound by the .consequep.ces of .that .agreement." .It :is then admitted,, in this case, that ,a wife's will of land may be good in equity, by way pf executipn of a power, provided the wife, previous to the marriage, conveyed the estate in -trust, for purpose? to ,be declared during her .coverture, by deed or will ; or, provided she previously raised a use, and reserved -to herself a ipower oyer it. Lord Hardwicke only suggests doubts whether a mere ante- nuptial agreement between bu.sband and wife, while the legal estate remains in her, can give her sjicji a .power of disposition during coverture. It appears to me that this doubt turns more upqn a point of technical formality than upon any solid ground of distinction, or real principle adapted to the interest of fami- lies, or apparent to the ^good-sense and understanding of man- kind.. Why should not the heir himself, as well as the formal trustee , standing behind himj be rbound to give effect to the power of appointment reserved to the wife.? The case of Bramhall v. Hall, Amb. 467, first brought up the question upon such an agreement, without any conveyance by the wife. Articles were entered into between Branihall and his intended wife, who was then a widow seised of an estate in fee, by which he covenanted that she should have power^ by deed or will, to dispose of her estate, after her decease, to any person whatso- ever, and that he would do any act to confirm it. After marriage, the wife, by lease and release, reciting the articles, conveyed her estate to trustees, after her death, to the use of her natural son for life, with remainders over. Lord Noethington held, that, the wife having the legal estate in her, the conveyance was net BEADISH V. GIBBS. 139 good to pass the estate, either as a cQuveyanoeor an, execution of the power. This short and very imperfect note, of the case is all we have in the report; and it would seem from it that the Chancellor put the objection on the ground of the legal estate not having been conveyed in trust, or to uses. But in the next case that followed it, and decided only a few months afterwards. Lord NoRTHiNGTON, referring to this case,' says he was of opinion that there was no meritorious consideration. It was upon ithis ground, then, that the case was decided-; and so it has been viewed by Mr. Sugden, in ;hi8 accurate " Treatise of Powers," p. 151. It may then be considered as an authority in favor of an ap-- pointment hj & feme covert resting upon 'an antenuptial agree- ment, and without having, prior to the marriage, parted with the legal estate. If the power had been void, the Chancellor would not have recurred to the want of merit (for so I understand him) in respect to the object of the appointment or bounty. If the husband had been the grantee, no such objection .could have been made, according to the case before Lord King; and that case, in connection with this, would seem to contain all the principles requisite to support the present bill. But in the case of Wright v. Englefield, Amb. 468; 6 Bro. P. C. 156, s. c, which was decided in the same year, and which is more generally known and cited by the name of Wright V. :Cadoga% Lord Ngethington gave the subject a deeper in- vestigation. In this case, marriage articles were entered into between the intended husband and wife ; and the instrument recited the in- tended marriage, and that it was agreed that the wife's existing estate, which was described to be a copyhold estate of inherit- ance, and a rent-charge for life, together with all such estate, real or personal, as might descend or come to her during cover- ture, should be to her sepb.rate use, and to be applied as she by deed or will should direct. The husband covenanted with S. and B., who were also parties to the same article of marriage, that her property should be so subject to her disposition, and that he would execute any deed to secure the same to her sepa- rate application and use. A moiety of a trust inheritance, of which the legal estate was then outstanding in the defendants as 140 COVERTURE. trustees, and of which she had, when the marriage articles -were made, a trust of the reversion in fee, descended to her after the marriage ; and the case says that she then became " entitled in fee-simple possession " to her moiety, subject to the performance of certain trusts. She afterwards made her will, and under the power reserved, and to which she referred, she devised her moiety of the inheritance to trustees, to the use of her husband for life, remainder to the sons of the marriage in tail male, re- mainder to the daughters of the marriage in tail general, and, in default of such issue, to her own right heirs. The plaintiff was her only son by a former husband, and the question was be- tween him, as her heir-at-law, and the second husband and his surviving daughters, who all claimed by appointment imder the will and the marriage articles. He filed the bill to have a conveyance from the trustees, and they filed a cross-bill for directions. Lord NoETHiNGTON held that the will, in connection with the articles, was a good and valid appointment in respect to the husband, as well as in respect to his children ; and though he is made to say, according to the case in Ambler, that the provision, being for children, was meritorious, yet, by the decree, the pro- visions in the will were equally carried into effect in favor of the husband. He said that, "if a woman, before marriage, ve- tains a power over a legal estate, to be exercised by way of execution of a power, she may do it." The heir carried an appeal to the House of Lords, on the ground that the appointment was void as against him ; and his counsel insisted that the only mode of enabling a, feme covert to dispose of her inheritance was by a conveyance before marriage to uses or trusts, reserving such a power, or else by fine after marriage, with a deed to lead the uses of it, reserving such power to her over the inheritance. They said that unless one of those methods was taken her will of real estate was void and could not bind her heirs, though it bind the husband who was a party to the marriage articles; that, in this case, the power rested only in covenant, or upon articles between tho»husband and wife, without any estate vested in trustees, out of which an appointment by virtue of the power was to enure. The counsel for the respondents, on the other haiid, urged, that as the legal estate was already in trustees, any f orpial conveyance would have BEADISH V. GIBBS. 141 been a mere declaration of trust, and the reasonableness' of the provision in the will was also urged. The decree was affirmed, and, from the argument of the appel- lant's counsel (who were no less men than Be Q-rey and Yorke), it is evident that they did not consider this case as satisfying the rule in Peacock v. Monk, requiring the wife before marriage to convey the estate in trust, or to use, with a power reserved to direct the uses or trusts. Lord Hardwickb clearly alluded to the solemn act and deed of the wife herself altering her estate before marriage, and by her own free act raising uses and trusts for future purposes, as being requisite to sustain the power ; and so did the distinguished counsel in the above case. Here was no such act of hers, and nothing but simple marriage articles between her and her husband, as in the present case ; and if they be sufficient in all cases in which the wife is seised of any trust, inheritance, or reversion, to support her will during coverture, the force of the objection is gone. I consider this case, then, as containing the principle, that equity will carry into effect the will of a. feme covert, disposing of her real estate in favor of -her husband, and to relatives who are not her heirs-at-law, provided that will be in pursuance of a power reserved to her in and by the antenuptial agreement with her husband. It is said, however, that the con- veyance of her estate in reversion would have been only a mere declaration of trust, and, therefore, useless ; but might she not have transferred her interest, equally as if it had been a legal estate, to another person, subject to such uses as she should afterwards during coverture by deed or will declare ? She might have done some act varying her equitable interest, and creating new trusts, so as to have satisfied the scruples in the case of Peacock v. Monk. But this was not done or required in the above case ; and I think, Lord Kenyon was justified in referring to that case (see Doe v. Staple, 2 T. R. 695) as evidence that the doubts of Lord Hakdwickb had been removed; and that a bare agreement by marriage articles was sufficient to support the will, even against the heir; and Mr. Sugden ("Treatise of Powers, " p. 151) cites it as evidence of the same fact. It was said, in the argument of the present case, that Lord Kenyon must have misunderstood the, report of the case of Wright v. Cadogan. I should doubt that exceedingly. He was very familiar with equity principles and practice, and probably under- 142 COVERTURE. stood the case much better than those who have only the printed reports as a guide ; for he had been several years at the bar when that case was argued and decided in the House of Lords, and he speaks of the very able discussion it received in that house. The case of Rippon v. Dawding, Amb. 665, puts the question Completely at rest. In that case a widow was seised of a free- hold estaite, and, , previous to her second marriage, her husband gave a bond empowering her to dispose of her freehold estate, by deed or will, notwithstanding the coverture. The wife after- wards by will gave her estate to her younger children in fee, whoeshibitfed their bill aigainst the heir, to have a conveyance of the' estate. The case of Wright v. Lord Cadogan was cited as being in point fOr the principle there determined, which was the performance of the marriage agreemerit as against the heir. The other side contended that the case of Wright v. Cadogan differed- from the other, inasmuch as in the one case the legal interest was in trustees, and in the other it remained in the wife. Lord Camden held that; though the two cases differed, in re- spect that the wife had only an equitable interest in the one and the legal interest' in the other, yet the principle of determinatioii was the same in both; .and that, as the Court decreed perform- ance of the agreement in Wright v. Cadogan, which was a trust- interest, it will do so in this, which is the case of a legal interest. He accordingly decreed a conveyance. This decision was made in 1769, and it has never been di- rectly questioned, and certainly not overruled. In Compton v. Collinson, 2 Bro. Ch. 383-385, it was admitted by the counsel for the plaintiff that, if there be an agreement, prior to. marriage and in consideration of marifiage, that the wife might' dispose of ber own property, it would have been held good in equity, and the wife would have been competent to have bound herself as to those rights which the marriage gave her, against the heir of the husband. The counsel on the other side, and who represented the heir-at-law, also admitted that a covenant before marriage would have given the wife a power to dispose by will. Such language of counsel on each side is very good evidence of the general sense of Westminster Hall on this point of law, and that the cases in Ambler were received as decisive authority. Nor do I apprehend that there is anything BEADISH V. GIBBS. 143 in Hogden v, Lloyd, 2 BrOi. Ch. 534, to weaken the force of this conclusion. In that case, marriage articles were entered into by whichthe real estate of the wife was to be settled to the joint use of' the husband, wife, and upon the survivor for life ; and that, if she survived him, her estate was to be settled to her own use, and, if not, the estate was to be at her own disposal. On the same day, and previous to the'marriage; she made her will, and gave her intbnded husband all her estate, absolutely, and made him sole executor. The marriage took place afterwards on the same da;y. She died without revoking or altering the will, and the husband took possession. The qiiestion arose between the devisee of the husband and the wife's heir-at-law. Lord Thuelow held that articles resting in agreement galve the husband an equitable es- tate fbr life; but that the will was revoked by the subsequent marriage. The great" point was whether the will was a good execution- of tJie power. The Chancellor said the will was not well made under the power, because the power was to make a, will after marriage ; but, in the course of his opinion, there is this observation thrown out; that, " with regard to chattels, the husband, by contract anterior to the marriage resting only in agreement, could authorize her to make a will ; but, in order to make a will of real 'estate, he must part with the legal estate to trustees by agreement; whilst resting in agreement only, he cannot bind the heir." I believe that here is a mistake in the report; for the observa- tion is directly against the decision in Rippon v. Dawding, which was cited upon the argument, and not questioned by the counsel for the heir-at-law. They put the objection to the will on the ground of a revocation by marriage, and that it was not in pursuance of the power, because the power referred to an act after ibarriage. Lord Thurlow repeats the same argument; whereas, if the agreement was insufficient to support a will after marriage, by way of appointment, the case would have been put upon that ground, and have cut short much discussion. Lord Thurlow did not so much as notice the case of Rippon v. Dawding, which was cited upon the argument, and which he certainly would have done out of self-respect, at least, if he had meant to question and much more to overrule it. It ought far- ther to be observed, that the counsel on each side in this case 144 COVEETUEE. also cited the decision in Wright v. Cadogan, as proving that an agreement before marriage would support a subsequent dis- position; and the Attorney-General (who was afterwards Lord Alvanlbt) considered it as resolving the doubt of Lord Haed- \ncKE, whether a mere agreement, or articles executory, would operate as a conveyance. He stated the rule to be, that there was no distinction in that Court as to the power of a, feme covert, whether the estate be a legal or a trust estate, and that articles would convey to her a power of disposing of either during her marriage. The most accurate writers who have discussed this subject, such as Sugden (Treatise of Powers, 151, 152), Powell ("Wood's Conveyancing, by Powell, vol. 2, p. 6), and Atherley (Treatise on Marriage Settlements, pp. 336, 337), consider the doubts of Lord Haedwicke as clearly resolved or removed by the subse- quent cases which we have been considering. They all unite in opinion that it is not now necessary that the legal estate should be vested in any indifferent person as a trustee ; and that, if the intended husband should covenant or agi'ee that the wife might dispose of her estate, it would enable her to do so in equity. " By a mere agreement, " says one of them, " when entered into before marriage, a feme covert may dispose, in equity, of her real estate." If such writers are not to be cited as authority (though Powell was much relied on in a Pennsylvania case), they are at least good in evidence of the sense of Westminster Hall, and very conclusive evidence that the case of Rippon v. Dawding has never been shaken. The question raised in this case was also fully discussed by the Supreme Court of Pennsylvania (2 Dallas, 199; 1 Yeates, 221, s. c), and the Court professed to decide the case before them upon the settled principles of the English Court of Chancery. The wife, in that case, before marriage, entered into articles of agreement with her husband and one J. W., by which it was agreed that her estate should be for their joint use during cover- ture, and, if she should survive him, the whole estate was to re- main to her as if no marriage had taken place; and that she should have power, by will, to dispose of the same to such per- sons and for such uses as she should see fit. The husband cove- nanted with J. W. to suffer this power to be carried into effect She married without having conveyed the estate to trustees, and BEADISH V. GIBBS. 145 had no issue, and by will devised her estate to her nephews and nieces. The point was, whether the will was sufficient -to bar the heir-at-law. It was held by all the Judges (and the Court then consisted of -M'Kean, C. J., Shippen, Yeates, and Bradford, JJ.), that the will operated as a good appointment under the articles, and that the heir was bound without any legal estate being vested in trustees. The cases of "Wright v. Cadogan and of Rippon v. Dawding were considered as governing the case and settling the law ; and the Chief Justice admitted that the spirit of the former of those two decisions implied the same doctrine with the latter. The counsel for the plaintiff endeavored to take this case out of that of Rippon v. Dawding, on the ground that the devisees there were not volunteers, and that the provision there for the younger children was meritorious. Two of the cases already examined sustained the provision for the husband ; and, if further authority was wanting to show that a provision for him is deemed meritorious, and that he is not regarded as a volunteer, we have it in Sergeason v. Sealey, 2 Atk. 412, In that case a widow had a power, under former articles, of disposing of 4, 0001. by deed or will, executed in the presence of three witnesses, to any person she should appoint. Previous to her second marriage, she, by articles executed in the presence of two witnesses only, appoints the sum of 2, 0001. out of the 4, OOOZ. to be for the use and benefit of her intended hus- band. The remaining 2, 000?. she made a voluntary disposition of by will, but did not execute it in the presence of three wit- nesses. Lord Hardwicke held that the articles upon the second marriage was a good appointment within the power, and though it was a defective appointment, because of two witnesses only, yet the Court would supply the defect where it was executed for a valuable consideration. But as the appointment of the remain- ing 2, OOOZ. was not for a valuable consideration, but only a voluntary disposition, the defect in not proving the power was not to be aided ; and it was, accordingly, as to that last sum deemed a void appointment. So, Lord Eldon, in Parks v. White, 11 Vesey, 222, when speaking of the power of disposition of a feme covert over estates settled to her separate use, observed, that " the Court had no 10 146 COVEETUEE. difficulty in supposing that a woman, having such an interest, might give it to her husband as well as to any one else. The cases never intended to forbid that ; and, if he conducts himself well, I do not know that she can make a more worthy disposi- tion ; though, certainly, the particular act ought to be looked at with jealousy. " Indeed, it is a clear point throughout the books that a married woman, having a power which is a right to limit a use, may appoint to her husband, in like manner as the hus- band may appoint to her. The case mentioned by Ceew, C. J. , in Latch's Rep. 44; Haider v. Preston, 2 Wils. 400; Gilbert's Uses and Trusts, by Sugden, 150, note. In the case of the Methodist Episcopal Church v. Jacques ^ (decided in October, 1817), in which the power of the wife over her property was largely discussed, it appeared that the gifts to the husband had been constantly sustained ; and the only check to them suggested in the cases is, that they were to be more narrowly inspected, on account of the danger of improper influence. If duly made in pursuance of the power, and at the same time fairly made, there is no pretence, in any of the cases, that a gift to the husband is not to be supported. There is no ground for the suggestion that a husband, who takes under a will founded on marriage articles like those in the present case, is a mere volunteer without consideration. The principle is well established (Marlborough v. Godolphin, 2 j^Vesej, 78), that, where a person takes by execution of a power, he takes under the authority of that power. The meaning is, as Lord Haedwicke expresses it, that the person takes in the same manner as if the power and instrument executing the power had been incorporated in one instrument, and as if all that was in the instrument executing had been expressed in that giving the power. Now, the marriage articles are founded on the consid- eration of marriage, which is a good and valuable consideration; and the provision in the will is founded on the same considera- tion as if it had been a part of the original antenuptial contract. The party who claims under the execution of a power, makes title under the power itself. The husband is frequently called the next friend and nearest relation to the wife ; he has a right to administer, and he takes her personal property, according to Lord Thuelow (3 Bro. 10), on that ground, and not on that of 1 3 Johns. Ch. 77. BEADISH V. GIBBS. 147 his marital rights. It is a general rule, that equity will execute marriage articles, at the instance of all persons who are within the influence of the marriage consideration ; and Lord Maccles- field, in Osgood v. Strode, 2 P. Wms. 255, considered the hus- band and wife and their issue as all within the influence of that consideration. A late case in chancery, Sutton v. Ohet- wynd, 7 Merivale, 249, only held, that a covenant or limitation in marriage articles to strangers and to a brother was merely voluntary, and not to be protected and rendered valuable by the consideration of marriage. Though I concur in the intimation of Lord Eldon, that the husband's claim to his wife's bounty is to be closely inspected, and wholly free from symptoms of coercion and undue influence, yet in a fair case, like the present, which has no such imputa- tion, and where there were no offspring to claim a divided atten- tion, I think the T^ife's bounty is reasonable and just. It springs from the best of human ties, and is founded on the warmest affections of the heart. There is less danger of improper influ- ence exercised over the wife in case of an appointment by will than by deed ; because a will, made in execution of a power, still retains all the properties of a will, and is revocable at the pleas- ure of the wife. Nor is there any weight in the objection, that the will makes no reference to the marriage articles. It is still in this case a good execution of the power. The rule, as de- clared in Sir Edward Clere's case, 6 Co. 17 b, and in many subsequent cases (2 Bro. Ch. 300, 301, 303), and Bennet v. Aburrow, 8 Ves. 609, is, that, if a will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. If the act can be good in no other way than by virtue of the power, and some part of the will would otherwise be inoperative, and no other int6ntio];i than that of executing the power can properly be imputed to the testator, the act, or will, shall be deemed an execution of the power, though there be no reference to the power. Here the will can have no effect without the power, not even as to personal property ; and if the power operates upon it at all, it operates equally upon every part of the disposition. My conclusion accordingly is, that the plaintiff is entitled to the relief sought by the bill ; and I shall decree that the defend- ants execute and deliver to the plaintiff", at his expense, a release 148 COVEETUKE. in fee, to be approved of by a master, of their legal right and title, as heirs of the testatrix, to the house and lot. in the bill mentioned ; and that, as to such of the defendants as have not ^answered, and may not be within the jurisdiction of the Court, that they be perpetually enjoined from asserting or enforcing their title or claim, as heirs aforesaid, to the same ; and that no costs be allowed by either party as against the other. Decree accordingly. Maetin v. Maetin. (1 Me. 394. Supreme Judicial Court of Maine, 1821.) ^eedfrom Husband to Wife. At Law. The appellee filed his petition in the Probate Court, for parti- tion of the real estate, of which his fathej died seised, andthe Judge thereupon decreed that partition be made. Prom this decree the mother of the petitioner appealed to this Court, and filed the following as the cause qf her appeal,. "Because Ezekiel Martin, her husband, on the 20th day of June, 1808, being then in. full life but since deceased, by his deed of bargain and sale, with general warranty, duly acknowledged July 28, 1818, and recorded, for the consideration of four hundred dollars therein acknowledged to have been received of said Mary, did give, grant, bargain, sell and convey to said Mary, and her heirs and assigjis forever, in fee, the land described in the petition afore- said, by force of which deed she became and still is sole seised and possessed of said lajid in her own demesne as of fee, " &c. And the question was upon the effect of this deed. Greenleaf, ior the appellant. No other reason is given against the validity of a deed of conveyance from the hi;isband idirectly t.o, the wife, but this, that they cannot contract with each other, be- ing in law but one person. But this ma,xim is not universally true, and the reasons on which it is founded do npt apply to cases like the present. The incapacity of a, feme covert arises not from her want of skill and judgment, as in the case of an infant; but, first, from her husband's right to her person and, society, which would be violated if a creditor could arrest and take her aw;ay ; MARTIN V. MARTIN. 149 and, second, from his right to her property. 1. She may sue and be sued as a feme sole where the husband is banished (Co. Litt. 432 b), or has abjured the realm for felony (case of the wife of WeyMnd', cited in Co. -Litt. 133 a), or is an alien enemy (Duchess of Mazarine's case, 1 Salk. 116 ; 1 Ld. Raym. 147 ; 2 Salk. 646). She may ■ contract with her husband to live sep- arately, and he cannot compel her to live with him again. Mrs. Lester's case, 8 Mod. 22; Rex v. Lister, 1 Stra. 478; Rex v. Mead, 1 Burr. 542. For in, these cases he is understood to have renounced his marital right to her person. 2. Where the' husband covenanted that she might enjoy, to her ■own use, her estates real and personal, and that he would join her in the surrender of her copyholds, her surrender without him was holden good. Gompton v. Collinson, 1 H. Bl. 334 ; 2 Atk. 611. Husband gave his wife a note of 3,000Z. to be paid if he should ever again treat her ill ; and he did so, and the note was decreed in chancery to be paid. Reeve, Dom. Rel. 94, cites 2 Vent. 217 ; 2 Vern. 67. But even his right to her property has its limits. She may take separate property by devise; and, if no trustees be appointed by the will, the husband shall be trustee for her use. Bennet v. Davis, 2 P. Wms. 316. So of a legacy of stock. Rich v. Cockell, 9 Ves. Jr. 369. So of a gift from the husband to the wife. Moore -v. 'Frfeeman, Bunb. 205. And she may even have a decree against him in respect of such estate. Cecil V. Juxon, 1 Atk. 278. She may accept a gift of personal ornaments from her husband. She may lend money to him, which his executors shall be bound to repay. Slanning v. Style, 3 P. Wms. 334 ; ib. 337. And ishe maiy bequeath her own per- sonal property, of which she was endowed ad ostium ecd'esice. Reeve, 145-150, and authorities there cited. ■ The reason of all these cases applies with as much force at law as in equity, viz., that the husband's right to her property is not thereby affected. The wife may also act in auter droit as a, feme sole. She may be an attorney. Co. Litt. 52 a. Or a 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. Uple5r, W. Jon. 137, cited in note 6 to Cc». Litt. 112 a; be- cause, as Mr. Hargrave observes, "he can receive no prejudice from her acts. " She may in such case convey to her husband. 150 COVERTURE. Reeve, 120. She may be an executor; and, if a, feme sole be ap- pointed sole administrator, and take husband, he becomes joint administrator ; but she alone may perform any acts which a joint administrator may perform. 1 Com. Dig. "Administration,"©. She may also release her dower by her separate deed, subsequent to the husband's sale of the estate. Fowler v. Shearer, 7 Mass. 14. From these authorities this general principle is deducible, that the wife is to be considered capable to act as a feme sole 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 person at the same time, in pursuance of a previous agreement, may convey to the wife, with the husband's assent, and it will be good at law against him and his heirs. And yet divers deeds thus executed are to be taken as parts of one entire transaction. Holbrook v. Finney, 4 Mass. 566 ; Hub- bard V. Cummings, 1 Me. 11. He may covenant to stand seised to her use ; and the statute of uses, 27 Hen. VIII. , vest the posses- sion to her. Co. Litt. 112 a. And in all these cases the estate descends not to his heirs, but to her own. The coverture may well operate to suspend any remedy on the covenants in a d^ed from the husband to his wife, during the life of the husband ; and this for the preservation of domestic peace, and of his right to her person, which would be infringed if she could imprison him ; but this would not affect her capacity to take. U. Whitman, for the appellee. It is sufficient answer to the argument on the other side, to say that the law of the land is otherwise. It has ever been considered as law here, from the first settlement of the country, that the wife was incapable to take by direct conveyance from her husband; alid convey- ances have been regulated accordingly. Indeed the interven- tion of trustees on, all occasions proves that estates cannot be thus conveyed without them. No instance can be found of any attempt to support a deed like this. The same has been the common law of England from time immemorial. Lit. sec. 168; MARTIN V. MAETIN. 151 Co. Litt. 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 ^ere 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. Cfreenhaf, 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 conven- ient relative or friend of her own as a trustee. As to- the course of decisions, no adjudged case directly to this point is to be found in the books. Dicta, indeed, to this effect are not infre- quent ; 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 dis- turb vested rights, there might be good reason to reject it, and to adhere even to harmless errors rather than do mischief by correcting them. But it does not go to disturb titles, it shakes no established principle or decisions, it abridges no rfghts ; on the contrary, it vindicates the consistency of the law on this subject, and takes from it the reproach to which it is otherwise exposed. Mellen, C. J., afterwards delivered the opinion of the Court as follows : The only question presented in this case is whether the deed from Ezekiel Martin, the late husband of the appellant, directly to her is a legal conveyance by which the estate passed from him to her. If any principle of common law is settled am perfectly at rest, it seems to be this, that a husband cannot con- vey an estate by deed to his wife. The appellant's counsel has not attempted to show any authority shaking this principle; and even the learned author of the treatise on Domestic Kela- tions (though an able advocate for the rights of married women in regard to the control or disposition of property 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 sup- 152 COVEETUEE. port of the deed are principally chancery decisions ; and those which are not such have reference to questions totally different from that now under consideration. Neither class of cases, then, can be relied upon as authorities in the determination of this cause. It can be of no use for the Court to disturb, or at- tempt to disturb, a legal principle which has never before been agitated in our Courts, or till very lately been even doubted. It is not necessary for us to answer the inquiry which has been made, " why a deed from a husband to his wife should not be a valid conveyance, " in any other manner than by observing that the law of the land declares such a deed to be a mere nullity. Accordingly, without a particular examination of the authorities cited on either side, we afifirm the decree of the Judge of Pro- bate, 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. Shepaed v. Shepaed. (7 Johns. Ch. 57. Court of Chancery of New York, 1823.) Deed from Husband directly to his Wife, when sustained in Equity. The bill stated that the plaintiff was the widow of Hazel Shepard, deceased. That before their marriage in May, 1806, Hazel Shepard, being seised of fifty acres of land, in Pittstown, and part of lot 8 in Hoosick's Patent, in Rensselaer County, executed a deed, dated April 12, 1806, reciting their intended marriage, and that, if they should purchase any real estate dur- ing 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 per- sonal estate he then had, or might have by means of selling any real or personal estate he then had, and buying and paying there- with. " The plaintiff, on the same day, executed a deed to Hazel Shepard, reciting their intended marriage, and releasing to him all right of dower in his estate, real or personal, by virtue of the intended marriage. SHEPAED V. SHEPAED. 153 That after their marriage, on the 26th of December, 1808, Hazel Shepard executed a deed to the plaintiff (she being his wife), in consideration of natural affection, and to make provi- sion for her when a widow, of a lot of land described, to hold during her widowhood. And, afterwards, on the 6th of January, 1817, Hazel Shepard, in consideration of natural affection, exe- cuted the deed to the defendant, his son, releasing to him the same land he had before released to the plaintiff. That on the same day, the defendant, by deed, in consideration of f 1,000, released to Hazel Shepard forty-eight acres of the land described, during his life; and the defendant covenanted with Hazel Shepard that he would pay annually to the plaintiff, during her widowhood, the sum of $60, or, at his election, the sum of 1400, in two equal annual payments, to commence from the day of the death of Hazel Shepard, if ,the defendant should so elect ; and the payment of the annuity, or of the |400, was to be on condition that the plaintiff should release to the defendant all right, as widow of Hazel Shepard, or by virtue of any deed, or otherwise, to the said estate of Hazel Shepard ; and, if she refused so to do, ^ the covenants of the defendant were to be void. The land described in the deed of the 26th of December, 1808, and that of the 6th of January, 1817, was the same land. Hazel Shepard died on the 25th of April, 1819, and the plaintiff re- mains his widow without any provision for her stipport. The defendant is in possession of the land described in* the last- mentioned deed; and the plaintiff having brought an action against him, upon the deed from Hazel Shepard to her, the de- fendant set up in defence that the deed was void in law. The defendant never made his election to pay the plaintiff $400. The plaintiff had offered to release to the defendant all her right to the estate of Hazel Shepard mentioned in the deed, provided the defendant would pay to her the , annuity, which he refused to do. No land was purchased by Hazel Shepard and the plaintiff during their marriage. The defendant had the title-deeds and refused to assign to the plaintiff her ddwer. , , Prayer, that the defendant be decreed to release to the plain- tiff all his right to the land described in the ^eed of the 26th of 154 ' COVEBTUEE. December, 1808, for her life or widowhood, to take effect as of the 28th of April, 1819, and to deliver the possession thereof, and account for the rents and profits from the death of Hazel Shepard ; or, if the plaintiff should so elect, that the defendant be decreed to pay to her the annuity during her widowhood, upon her releasing to him all her right in the land ; and that he se- cure such annuity by a mortgage on the land, or otherwise ; or if that cannot be done, that the defendant be decreed to assign to the plaintiff her dower, and account for the mesne profits, ; that the said Mary Rickets has, from the date of the said deed of conveyance, had and held the same, and that since the death of the said testator she has exercised, and still exercises, absolute control of the said premises, and pretends and claims to be the absolute owner thereof; that the plaintiffs are the brothers and sisters, and the descendants of such as are dead, of the testator, and are the persons referred to and named in the residuary clause of the said will; that the deed of conveyance is absolutely void, by reason of -the fact that when the same was made the grantor and grantee were husband and wife; that the said deed being void, no, title passed 160 COVERTURE. to the said Mary Rickets ; and that the title to the said premises remained in the said Clement G. Rickets until his death, when the title thereto became and was vested in the plaiptiffs, under and by virtue of the residuary clause of the said will. The prayer of the complaint was, that the said deed of con- veyance from the said Clement G. Rickets to the said Mary Rickets be set . aside and cancelled, and that the plaintiffs recover the possession of the said premises, and $1,000 damages for the use and occupation thereof. Copies of the deed and will were filed with, and constitute parts of, the complaint. The appellee demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiffs refusing to amend, the Court rendered judgment for the defend- ant. Proper exceptions were taken to these several rulings, and the only error assigned here is upon the action of the Court in sustaining the demurrer to the complaint. It is quite obvious that if the deed is valid, and conveyed an estate in fee- simple, absolute and unconditional, to the grantee therein named, the grantor could have no power to make a subsequent bequest of the same premises, he having already parted with his title thereto by deed ; and that, there- fore, if the deed set out in the- complaint be a valid one, the appellants who claim title to the premises by virtue of the will of Clement G. Rickets, who was the grantor in the said deed, can have no valid title to the said premises. The validity of the deed is, therefore, the real question in the case. The appellants claim that the deed was absolutely void, for the reason that it was made by a husband directly to his wife, without the intervention of a trustee. The appellee admits that the deed is void at law, but maintains that it will be upheld and sustained in equity. The adjudicated cases in this Court do not very clearly define when and in what cases equity will sustain a conveyance direct from husband to wife. This Court, in Bunch v. Bunch, 26 Ind. 400, say: " The deed to the land in question, executed by the defendant to the plaintiff, during their coverture, was void in law. This is not questioned by the plaintiff's counsel; indeed, the. complaint praying that the title may be vested and quieted in her is based on the assumption that the deed is void at law, and appeals to the equity powers of the Court for its confirmation. Such conveyances, though void at law, are sometimes upheld and confirmed by Courts of equity. The corifirmation of such contracts is not a right to be enforced in all cases. Such claims are addressed to the sound discretion of the Court, and are only confirmed after a most cautious examination, in clear cases, where such confirmation is demanded by the clearest dictates of right and justice." We have made a very careful examination of the elementary works and decisions bearing upon this question. The decisions are not uniform and consistent with each other. It is important that some fixed and definite rules should be established, by which we are to be governed in the decision of such cases, as it is not safe to leave such questions to the mere discre- tion of the Court; for, in such case, the peculiar views or prejudices of the Judge would determine the rights of parties. According to the strict rules SIMS V. RICKETS. 161 of the old common law, the wife was not permitted to take and enjoy either real or personal property, independent of her husband. These rules were modified by the Courts of equity, and have recently been abolished by statute in this State. It is now the settled law in this State, and in the most of the States of the Union, that a wife may take, hold, and enjoy, to her sole, separate, and exclusive use, both real and personal property; and in this State she may encumber ajid alienate her separate real estate by her husband joining with her in the mortgage or deed. There is now no limi- tation upon the power of the wife to take and hold real estate by inherit- ance, devise, or purchase. The limitation is upon her power of alienation. This she cannot do, unless her husband joins with her in the conveyance. It is also the admitted doctrine in this State, that a married woman may con- tract in reference to her separate property; and while she may not create a personal liability, she may charge- her separate property for a debt contracted in reference thereto. The disabilities imposed upon married women by the common law have been, to a great extent, removed by the principles of equity and the statutes passed to secure their rights. Even after the doctrine was established that a married woman might hold real estate to her separate and exclusive use, the rule was inflexible at common law that she could acquire no valid title by a conveyance direct from her husband; but the Courts of equity have modified the harshness of that rule. The rule that a wife could make no valid contract or agreement with her husband was based upon the same principle as the rule that she could not hold real estate, to her separate and exclusive use, independent of her husband. Both of these rules were estab- lished in consequence of the unity of person between husbamd and wife. The legislation of this State has destroyed the unity in person between husband and wife, so far as their rights of property are concerned. The strictness and rigor of these old rules should be modified so as to conform them to the now well-settled rights of property between husband and wife. Story says it was formerly supposed that the interposition of trustees was, in all arrangements of this sort, whether made before or after marriage, indis- pensable for the protection of the wife's rights and iijterests. In other words, it was deemed absolutely necessary that the property of which the wife was to have the separate and exclusive use should be vested in trustees for her bene- fit, and that the agreement of the husband should be made with such trustees, or, at least, with persons capable of contracting with him for her benefit. But although in strict propriety that should always be done, — and it is usually done in regular and well-considered settlements, — yet it baa for more than a century been established in Courts of equity that the intervention of trustees is not indispensable; and that whenever real or personal property is given or devised or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of. trustees, the inten- tion of the parties shall be effectuated in equity, and the wife's interest pro- tected against the marital rights and claims of her husband, and of his creditors also. 2 Story Eq. 600, 601, sec. 1380. In Sexton v. Wheaton, 8 Wheat. 229, where the validity of a post-nuptial voluntary settlement made by a husbaind upon his wife was in question, Marshall, C: J., says: — 11 162 ' COVEETDKE. " It would seem to be a consequence of that absolute power which a man possesses over his own property, that he may make any disposition of it which does not interfere with the existing rights of others ; and such dispo- sition of it, if it be fair and real, will be valid." Speaking of the case before him, he says : " The appellant contends that the house and lot contained in this deed constituted the bulk of Joseph Wheaton's estate, and that the con- veyance ought, on that account, to be deemed fraudulent. ... If a man entirely unencumbered has a right to make a voluntary settlement of a part of his estate, it is difficult to say how much of it he may settle." The doctrine is thus stated by the Supreme Court of the United States in Wallingsford v. Allen, 10 Pet. 583: — " Agreements between husband and wife, during coverture, for the transfer from him of property directly to the latter, are undoubtedly void at law. Equity examines with great caution before it will confirm them. But it does sustain them when a clear and satisfactory case is made out that the property is to be applied to the separate use of the wife. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the hus- band's benefit, or that of their family, or which has been appointed by him to his uses ; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property, for her use, — either case equity will sustain, though no trustee has been interposed to hold for the wife's use. In More v. Freeman, Bunb. 205, it was determined that articles of agreement between husband and wife are binding in equity, without the intervention of a trustee. Other cases may be cited to the same purpose. In regard to grants from the husband to the wife, an examination of the cases in the books wUl show that, when they have not been sustained in equity, it has been on account of some feature in them impeaching their fairness and certainty; as that they were not in the nature of a provision for the wife, or when they interfered with the rights of a creditor, or when the property given or granted had not been distinctly separated from the mass of the husband's property." In Putnam v. Bicknell, 18 Wis. 333, it is said: " Though void at law, an absolute conveyance of real or personal property from the husband directly to his wife is good in equity, and sufficient, so far as the form is concerned, to divest the husband of such property, and to vest the same in the wife, as against all persons save the creditors of the husband, especially when the transfer is fairly made upon a meritorious or valuable consideration." In Huber v. Huber, 10 Ohio, 371, it was held " that a husband may, dur- ing his life, settle a separate estate upon his wife; that is, he may (there being no claims of creditors to forbid it) transfer property to his wife iu which she never had any beneficial interest, and which will enure to her as her separate estate. This may be done even without the intervention of a trustee. A Court of equity would, if necessary, appoint one to execute the intentions of the husband." In Simmons v. McElwain, 26 Barb. 419, it is said: "It is true that the deed from the defendant to his wife was void in law ; for a husband can- not, during coverture, make a grant or conveyance to his wife. But such a grant will be upheld in equity, when it is necessary to prevent injustice." SIMS V. RICKETS. 163 In Wilder ». Brooks, 10 Minn. 50, it is said: " And had the conveyance been made to any person other than his wife^and even for a merely nominal consideration, we see no reason why it would not have been completely unas- sailable. If these premises are sound, it follows that, if the instrument was effectual between Andrew M. Torbet and his wife to pass the property, it was good as to the world, and vice versa." Again, it is said: "Contracts of all kinds between husband and wife are objected to, not only because they are inconsistent with the common-law doctrine that the parties are one person in law, but because they introduce the disturbing influences of bargain and sale into the marriage relation, and induce a separation rather than a unity of in- terests. But, certainly, neither in reason nor on principle can it be contended that, so far as this objection is concerned, there is any difference between the cases of a conveyance by a husband to trustees for the use of a wife, or to a third person who conveys to the wife, or to the wife directly. Each of these would have precisely the same effect in conferring upon the wife property and interest, independent of and separate from her husband. And the tendency of modern legislation, as well as of judicial interpretation, is to improve and liberalize the marital relation, by recognizing and upholding the reasonable rights of both parties to the matrimonial contract." The law is thus stated by the Supreme Court of Massachusetts, in the case of Whitten v. Whitten, 3 Cush. 191: " The like presumption exists in the case of purchase in the name of his wife and of securities taken in her name. In- deed Mr. Justice Story says that the presumption is stronger in the case of a wife than in that of a child. It is, therefore, an established doctrine that, when the husband pays for land conveyed to the wife, there is no resulting trust for the husband ; but the purchase will be regarded and presumed to be an advancement and provision for the wife. This is fully supported by va- rious cases, as well as by the best writers." Mason, J., in the case of Stockett u. Holliday, 9 Md. 480, says: "The case of Bowie v. Stonetreet, 6 Md. 418, conclusively settles that a contract which can be enforced in a Court of equity may be entered into between a husband and a wife, for the transfer of property from the former to the latter, for a bona fide and valuable consideration." The Supreme Court of Vermont, in the case of Barron v. Barron, 24 Vt. 375, states the law thus: " And, as a general rule, whenever a contract would be good at law when made with trustees for the wife, that contract will be sustained in equity when made with each other, without the intervention of trustees. It is upon this principle that, in many cases, the husband will be held as trustee of the wife, and the wife entitled to the privileges belonging to a creditor of the husband." Though a stranger's conveyance of property or covenant to pay money to a married woman, or to a trustee for her, in order to give her a separate use, must contain words indicating such intention, it seems to be well settled that such words are unnecessary in the husband's conveyance or covenant. The law upon this subject is well stated by the Supreme Court of Connecticut in Deming v. Williams, 26 Conn. 226, where it is said: "Now had such transfers been made by a parent into the name of a child, the child would acquire the 164 eOVEKTUEE. interest as an advancement, such intent being inferred by Taw from tbe rela- tionship of the parties. The same is true in case of a wife, where the husband purchases land and has the deed made directly to her, there being in the case no creditors, or fraud upon aay other party. The law attaches to absolute deeds and transfers a full alienation of the entire interest or property, so far as the alienation is permitted by the principles of law or equity. Such are all gifts or deeds by husbands to wives of real or personal estate found in the books, from the case of Slanning v. Style (decided in 1734, and found in 3 P. Wms. 334) to the present time, and they are exceedingly numerous. They sustain the principle that, so far as the form and substance of the gift or alien-, ation are important, that which would be good if made to a third person is: good in a Court of equity if made, by the husband to his wife." We have had urged upon our attention and consideration the cases of White V. Wager, 25 N. Y. 328, and Winans v. Peebles, 32 N. Y. 423. We have given these cases a careful consideration, and are of the opinion that they are not in conflict with the views we have expressed. In both of those cases the question involved was the validity of conveyances from wives to their husbands. We^ have already seen that a married woman in this State is under a disability, so far as the alienation of her land is concerned. Her conveyance is abso-^ lutely void, unless her husband joins with her. Such is the law in New York. None of the disabilities imposed, upon married women have attached ta^ the» condition of a married man, who was as free to receive the title to property- and to dispose of it, after marriage as before, with the exceptions that he could not receive a deed directly from his wife, because she could not convey without his joining, and he could not join in a conveyance to hipself , and that he had no power to dispose of, or in any manner afiect, the inchoate right of his wife in and to his real estate. As to the world in general, the estate of marriage does not affect his ability to acquire title to or dispose of his property, just as he might have done if he had not been married. These cases correctly held that a deed direct from a wife to her husband was void at law, and would not be sustained in equity; for the reason that this disability was imposed upon married women to protect them from the influence of their husbands. The adjudicated cases in England are in entire accord with the decisions in this country, We refer to the following English and American cases on this subject, besides those heretofore referred to. Lucas v. Lucas, 1 Atk. 270; Freemantle v. Bankes, 5 Ves. 79; Battersbee v. Farrington, 1 Swanst. 106; Latourette v. Williams, 1 Barb. 9; Neufville v. Thompson, 3 Edw. Ch. 92; McKennan «. Phillips, 6 Whart. 671; Kee v. Yasser, Z^Ired. Eq. 553; Stan- wood V. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556; Adams d. Brackett, 5 Met. 280; Jones i'. Obenchain, 10 Gratt. 259; Walter v. Hodge, 2 Swanst. 97; More v. Freeman, Bunb. 205; Lady Arundell v. Phipps, 10 Ves. 139; Shepard ». Shepard, 7 Johns. Ch. 57; Wood v. Warden, 20 Ohio, 518; Gaines v. Poor, 3 Met. (Ky.) 503; Ward v. Crotty, 4 Met. (Ky.) 59; Living- ston V. Livingston, 2 Johns. Ch, 237; Fitch v. Ayer, 2 Conn. 143; Cornwall «. Hoyt, 7 Conn. 420; Whittlesey v. McMahon, 10 Conn. 137; Morgan v. The Thames Bank, 14 Conn. 99; The P. E. Society v. Mather, 15 Conn. 587; SIMS V. RICKETS. 16B Winton t*. Barnum, 19 Conn. 171; Hawley v. Burgess, 22 Conn. 284; Edwards V. Sheridan, 24 Conn. 165. From the foregoing authorities the following propositions are faitly deducible : — First. Kone of the disabilities imposed upon married women have attached to the condition of a married man, who is as free to receive the title to property and dispose of it after marriage as before, except that he cannot by. his con- veyance affect the inchoate right of his wife to his real estate. Second. That a conveyance from a husband directly to his wife, without the intervention of a trustee, is void at law. Third. That a direct conveyance from a husband to his wife will be sus- tained and upheld in equity in either of the following cases, namely: 1. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit or that of their family, or which has been appropriated by him to his uses. 2. Where the husband is in a situation to make a gift to his wife, and distinctly separates the property given from the mass of his property', and sets it apart to the separate, sole, and exclusive use of his wife. Fourth. Where a wife advances money to her husband, or the husband i§ indebted to the wife upon any valid consideration, the Wife stands as the creditor of her husband ; and, if the conveyance is made to pay or secure such liability, the wife will hold the property free from the claims of other creditors, where the transaction is unaffected by unfairness or fraud. Fifth. Whenever a contract would be good at law when mad^ with trustees for the wife, that contract will be sustained in equity when made with each other, without the intervention of trustees. Sixth. That, prior to the recent legislation in this State authorizing married women to hold real estate to their separate use, when a conveyance was made by a stranger to a married woman, or to a trustee for her, in order to give her a separate use in the property, it was necessary that such convey- ance should contain words clearly indicating such intention ; but such words were unnecessary in a conveyance from a husband to his wife, for the law presumed that it was intended for her separate and exclusive use. Seventh. That section five of an act entitled " an act touching the marriage relation and liabilities incident thereto " (approved May 31st, 1852), made all property held by a married woman at the time of her. marriage, or acquired by her subsequently, hers absolutely, and has enabled her to use, enjoy, and control the same independently of her husband, and as her .separate property; and that, since the passage of that act, a conveyance to a married woman need not contain words indicating that she is to hold the property to her separate use. Eighth. That when conveyances from a husband to his wife have not been sustained in equity, it has been on account of some feature in them impeaching their fairness and certainty ; as that they were not in the nature of a provision for the wife, or when they interfered with the rights of creditors, or when the property given or granted had not been distinctly separated from the mass of the husband's property^ 166 COVEETUKE. Ninth. That, in consequence of the absolute power which a man possesses over his own property, he may make any disposition of it which does not interfere with the existing rights of others. Tenth. When a husband is free from debt, and has no children, and con- veys property to his wife for a nominal consideration, the law will presume that it was intended as a provision for his wife. Eleventh. That a conveyance from a husband to his wife which is good in equity, vests the "title to the property conveyed in the wife, as fully, completely, and absolutely as though the deed had been made by a stranger upon a valu- able consideration moving from the wife. It appears by the record in this case that the grantor was possessed of a large property ; that in his will he disposed of about $8,000 in specific legacies ; that the. value of the property disposed of in the residuary clause is not shown; that he had -no children, and, if he had died intestate, his wife would have inherited his entire estate; that the rights of creditprs were not interfered with by the conveyance in question; that the great and commendable anxiety displayed in his will for the welfare, comfort, and happiness of his wife tends to show that the conveyance which he had made a short time before was in- tended as a provision for his wife ; and that in making his will he had such conveyance in his mind, and did not intend to devise to his brothers and sisters the property which he had previously conveyed to his wife. We are clearly of the opinion that the conveyance in question was good in equity, and should be sustained. The Court committed no error in sustaining the demurrer to the complaint. The judgment is affirmed with costs. 7" Livingston v. Livingston. (2 Johns. Ch. 537. Court of Chancery of New York, 1817.) Post-nuptial Contracts between Husband and Wife, when sustained w Equity. — ' The plaintiff, in May, 1809, married Eliza Oothout, who was seised in fee, in her own right, of a house and lot (No. 56) in Greenwich Street. After the marriage, the plaintiff expended $2,500 in repairs and improvements on the house. In April, 1814, the plaintiff and his wife agreed that he should purchase, in her name, another lot, and build a house thereon, and that the cost of erecting such new house should he paid out of the proceeds of the house and lot first mentioned, on a sale thereof for that purpose, to be made when the new house was completed. The bill stated that, in pursuance of this agree- LIVINGSTON v: LIVINGSTON. 167 ment, the plaintiff, in May, 1814, purchased a lot (No. 51) in Greenwich Street, for 16,000, which he paid out of his own money, and took a deed in his wife's name ; that he erected a house on the lot, in the building of which he expended above $16,000 of his own money. That, in September, 1815, he and his wife went to reside in the new house, and his wife, soon after, on the 21st day of the same month, died suddenly, while the plaintiff, with her concurrence, was in treaty for the sale of the first house and lot. That the wife of the plaintiff left two infant children, her heirs, to whom the legal estate in both houses and lots descended. The plaintiff alleged that, the con- sideration for the agreement between him and his wife having thus failed, he was entitled to avoid the agreement, and consider the children as trustees for the plaintiff in regard to the second house and lot. The bill prayed that the defendants might be decreed to release the last-mentioned house and lot to him, or that the same might be sold, and he be reimbursed the moneys he had so advanced, out of the proceeds of such sale. The defendants, being infants, put in their answer by a clerk of the Court, as their guardian ad litem, and admitted only the seisin of their mother in the first lot, and her death. The plain- tiff proved the material facts stated in the bill. T. L. Ogden, for the plaintiff. The Chancellor. T entertain no doubt of the fairness and equity of the agreement between the plaintiff and his late wife, ' as stated in the bill, and proved by one of the witnesses. J- A husband and wife may contract, for a bona fide and valuablel T (consideration, for a transfer of property from him to her. It was admitted as a clear point in the case of Lady Arundell V. Phipps, 10 Vesey, 146-149, that a married woman having sep- arate property may purchase, by the sale of it, other property, even of her husband, and have it limited to her separate use. Other authorities to the same point are referred to by Atherly (Treatise on Marriage Settlements, pp. 160, 161), who considers the point supported by reason as well as by authority. Though the agreement here was by parol, yet it was carried into effect on the part of the plaintiff, and he has the clearest equity either to have the house and lot first mentioned sold, and the proceeds, or a part of them, paid over to him, or to have the second house and lot conveyed to him, on the ground of a failure of the con- 168 COTEBTUBB. tract by the sudden death of his wife. If there had been no issue between them, the hardship to the plaintiff would have been more striking, in suffering the property in both lots to pass im- mediately to the wife's collateral relations ; but the principle of equity would not have been different. The circumstance that the heirs of the wife are the children of the plaintiff, only gives a graver and more interesting character to the case. The presumption would undoubtedly be, in the first instance, that the conveyance to the wife was intended as an advancement and provision for ier. This presumption was admitted in the case of Kingsdon v. Bridges, 2 Vern, 67 ; but I do not see why it may not be rebutted, as has been done in this case, by parol proof. In Finch v. Finch (15 Vesey, 43), it was held, that though, when a purchase is made in the name of a person who does not pay the purchase-money, the party payii^g it is con- sidered in equity as entitled, yet if the person whose name is used be a child of the purchaser it is, prima facie, an advance- ment ; but that it was competent for the iather to show, by proof, that he did not intend advancement, but used the name of his child only as a trustee. If the agreement had here been for an exchange of lots, I might thus have ordered the infant heirs of the wife to convey to the plaintiff the house and lot first men- tioned; considering them as infant trustees, according to the case of Smith v. Hibbard, Dickens, 730. But the agreement was that the first bouse and lot should be sold, and the plaintiff reimbursed out of the proceeds for " the expense of erecting such new houses. " This is the agreement as stated in the bill. I presume I have power to carry this partly executed agree- ment into effect, under tbe third section of the act of the 9th of April, 1814,1 entitled, "an act ■ concerning infants;" and it ap- pears to me that it would be more beneficial to the infants to have this agreement specifically executed, than to have the new house and lot conveyed to the plaintiff. It must be observed that, upon the terms of the agreement, as stated by the plaintiff, he is only entitled to be paid, out of the first house and lot, the expense' of erecting the new house, and which according to the testimony of the mason who built it was about 111,000, though according to the carpenter's testimony the whole expense was upwards of $12,000. 1 Sess. 37, c. 108. LIVINGSTOJyr V. UyiNGSTON. 169 The prayer of the bill is that the infants may be decreed to convey to the plaintiff the house ,and lot last mentioned, or that the said house and lot may be sold. Strictly considered, the prayer is to have the last house and lot sold ; and as there is no prayer for general relief, but only this specific prayer, I am the more particular in this criticism on the bill. I am content, how- ever, to consider the prayer for a sale as alluding to the first house and lot, and I presume it was so understood ; for the plaintiff has no pretex^t of right to have the last house and lot sold. The ques- tion, then, is fairly before me, which course ought to be pursued. If the release is to be adopted, it must be on the ground that the contract has failed, and that the infants hold the second house and lot for the plaintiff as a resulting trust, he having paid the purchase money. Infants have been ordered to convey a result- ing trust after it was established by parol testimony ; and it has been held by Lord Chancellor King, Ex parte Vernon, 2 P. Wms. 648, to be a trust within the statute of 7 Anne, c. 19, which we have adopted, relative to conveyances by infant trustees. It was, however, afterwards doubted by Lord Talbot, in Goodwin v. Lister, 3 P. Wms. 386, whether constructive trusts were within the statute of 7 Anne, though he gave leave to the plaintiff to apply, in case any precedents could be found where such constructive trusts had ever been held to be within the stat- ute. Lord Talboi, in that case, must have either considered a resulting trust not one of the constructive trusts to which he alluded, or he must not have known or recollected the decision of Lord King, and which, I think, ought to be considered as an authority. My difBculty is not as to a want of jurisdiction in case a resulting trust be established ; but I think that a strict performance of the contract would be just as it respects the plaintiff, and more beneficial -to the infants, and, therefore, it is the more advisable remedy. I shall, accordingly, decree a sale of the house and lot first mentioned, under the direction of a master ; that the sale be at auction, on due public notice, and the terms of it be reduced to writing, and the memorandum of it signed by the purchaser, and reported to the Court for its approbation ; and that, when con- firmed, the conveyance be executed by the infants by their guar- dian ; that the plaintiff and the master unite in the conveyance ; 170 ' COVEETUEE. that the moneys be brought into Court to abide its further order ; that the same master ascertain and report the amount of the expense of the plaintiff in erecting the house on the last lot ; and that the depositions taken in the cause be used by him as evidence, together with such other and further testimony as the plaintiff may think proper to furnish, and that he report such further testimony, together with his opinion as to the amount of such expense. Decree accordingly.^ Martin v. Dwelly, (6 Wend. 9. Court of En-ors of New York, 1830.) Deeds and Contracts of Femes Coverts, Effect of. Appeal from chancery. In February, 1827, the respondents commenced an action of ejectment for the recovery of certain premises in the possession of the appellant, claimed by them as the heirs-at-law of their mother Miriam Dwelly. The appellant filed a bill in chancery to obtain an injunction staying the suit at law, and to compel a conveyance from the respondents to him of the premises claimed. The appellant alleged that Miriam Dwelly, the mother of the respondents, was his sister, and one of eight children and heirs-at-law of Moses Martin, who died intestate in 1792, seised of various parcels of land ; that, on the 19th of April, 1800, a settlement was agreed upon between the ap- pellant and Abner Dwelly, the husband of Miriam, and the said Miriam herself, whereby Abner Dwelly and his wife agreed to sell and convey to the appellant one eighth part of the land, whereof the intestate, Moses Martin, died seised, for the consideration of $325 ; and, in pursuance of such agreement, conveyed the same to the appellant, under their hands and seals, and severally signed a receipt acknowledging the payment of that sum, which 1 It was said, in Free, in Ch. 284, the whole ' costs were charged on the that infant trustees convey by guard- party applying to have infant trustees ian after the conveyance is settled convey, by a master; and, in 10 Vesey, 554, MARTIN V. DWELLY. 171 ■was paid by the appellant, and which he stated he verily believed was applied to the use of the said Miriam ; that Miriam Dwelly entered into the agreement, and executed the conveyance and release of the premises voluntarily, without any fear or compul- sion of her husband; that the appellant took possession of the premises, using' them as his own, selling and conveying away parts thereof, and occupying the remainder without interruption or molestation from Abner Dwelly and Miriam his wife, who departed this life, the said Miriam in October, 1825, and the said Abner in June, 1826, without having executed to the appel- lant a deed of the bargained premises duly acknowledged, accord- ing to the provisions of the act in such cases made and provided, and that they left eight children and one grandchild, the re- spondents in this case ; and that the appellant laid out consider- able sums of money in the improvement and cultivation of the bargained premises, and was proceeding to make other improve- ments when the action of ejectment was commenced. The bill prayed a discovery, and that the respondents might be compelled specifically to perform the agreement made and entered into by Abner Dwelly and Miriam his wife with the appellant, to release to the appellant the premises in the agreement specified, and be restrained from bringing any actions of ejectment against the appellant, or those claiming under him, for the recovery of the bargained premises; and that in the mean time they be re- strained from further prosecuting the suit already commenced, and for general relief. Chancellor Jones allowed the injunction prayed for. The respondents in their answer admitted that, on the 19th April, 1800, Abner Dwelly agreed to release his interest in certain lands designated as the real estate whereof Moses Martin died seised; that a deed was accordingly drawn, embracing all the lands of which Moses Martin died seised, which was signed by the said Abner Dwelly and Miriam his wife, but the said Miriam de- clared that she would not acknowledge the due execution there- of, as the respondents stated they had always been informed, and believed truly ; and, further, that the appellant frequently made application to the said Miriam to acknowledge the execution of the deed in due form of law, which she absolutely refused to do ; and frequently and uniformly declared she never would acknowl- edge said conveyance, and that her children should, after her 172 COVEKTimE. deatli, prosecute lier claim, if she did an appropriation; but it is an appropriation of that which is in effect a chose in action, an d could only have been dbtained by suit to which th e ^ wife must have been a party. I t is very proper that the money should be paid intoCourt, I shall direct Susannah Bestland, in whom the mortgage is now vested, to call in the money; and declare that the plaintiff Ann Blount is entitled to the same; and the interest due at the tim? of her marriage with the other plaintiff tobe added to- the principal; and that she is not entitled to. any benefit under 1 As to election, see Wollen v. Tan-' ' See 2 Ves. Jr. 676"; Mealis v. ner, 5 Ves. Jr. 218 ; Long v. Long, id'. BTealis, in- Chancery; Hil. Term, 1764, 445'; Yate K.,Moseley,,id'. 480 ; Ward MS.,.wherean injunction was granted V. Baugh, 4 id. 623 ; 'Wilson v: Lord at. the suit of' a married woman to John Townshend, 2 id. 693 ; Butricka stay proceedings in the Ecclesiastical V. Broadhurst, 1 id. 171, note (a), Court, in a suit instituted by her hus- (Sumner's ed.) ; Blake i<. Bunberry, id. band toobteiin a legacy in her right, 514, note (a), s. c. 4 Bro. C. C. 21. without having made a settlement. ^ See Schuylisr'r. Hoyle {ante). 15 226 COVEETUEE. the will of Thomas Simpson, she electing to take against the will. Let the plaintiff William Blount lay a proposal before the master for a settlement. Tax all parties their costs: the interest of the sum due upon the mortgage to be applicable to the costs in the first place ; and, if not sufficient, the deficiency to be taken out of the principal. v. Nash. (2 Madd. 133. Court of the Vice-Chancellor of England, 1817.) What is a Sufficient Reduction of the Wife's chose in action; Possession of Instrument evidencing it. The original bill stated that, in July, 1808, a marriage was had between William L. Nash and Catharine Evans; that no settlement was made on the marriage, but on the 23d of Novem- ber, 1813, David Evans, Esq., the father of Catharine, drew a check on his bankers, in favor of his daughter, for 10,000Z., and on that day she presented the check, and took from the bankers a promissory note, payable on demand, for 10,000Z., which note ^she delivered to her husband; that the money remained in the hands of the bankers during the life of William L. Nash, except 1, OOOZ. which he applied for to the bankers, and was paid by them, and for which he gave a receipt ; and that he received the interest on the remaining 9,0001^ during his life, and gave re- ceipts for the same ; that William L. Nash, by his will, 8th December, 1815, amongst other bequests, gave the plaintiff L. Nash (his mother) an knnuity of 40?. , and appointed his wife, Catharine Nash, and two other persons, executors of his will; that he afterwards, on the 8th January, 1816, died, leaving the said Catharine Nash and the plaintiff Ann Nash surviving ; that Catharine Nash alone proved the will, and obtained possession of the testator's personal estate and effects, including the note forlO,OOOZ., of which 9,000Z. so remained unpaid. The prayer (of the original bill was, that the 9,000Z. due on the promissory I note might be declared to form part of the testator's personal NASH V. NASH. 227 estate, and that an account might be taken of what was due to the plaintiff in respect of the annuity given by the testator's will. The defendant by her answer insisted that the 9, 0001. secured by the promissory no te was a chose in action, a nd that, William L. Nash never having reduced the same into possession, it did not for/m part of his personal estate, but belonged to her ; and that his property, independent of that money, was but sufficient for the payment of his debts. After the bill was filed, and the answer put in and replied to, Ann Nash, the plaintiff in the original bill, died, and letters of administration were granted to John Nash (the plaintiff), who filed a bill of revivor. Mr. Wingfield and Mr. Whitmarsh, for the plaintiff. The 9,0001. remaining due on the note must be considered as the property of the deceased husband. A wife cannot acquire property during the coverture; it belongs to her husband. The husband might alone have brought an action upon the note. V In Lightbourne v. Holyday, ^ the plaintiff gave ^a feme covert ^ 2 Eq. Abr. 1. The following re- was insisted that here is no abatement, port of this case is from a MS. note. for the note being given to the wife, HoUoway i'. Lightbourne, Easter and she surviving the husband, the Tei-m, 12 Geo. II., 1739. The bill in interest in the note had vested in her, this case was brought, suggesting and would not go to the executor of fraud and want of consideration in the husband. But Lord Hakdwicke, obtaining a promissory note from the Chancellor, having taken time to con- plaintiff by the defendant's wife, set- sider of it, declared this to be an ting out the note to be in this form : abatepaent, and that the interest in " Received of Mrs, Lightbourne 300L, this note by the death of the husband for which I am to be accountable;" vested in his executor, and did not and prayed that this note should be survive to the wife. It is not like the delivered up, and the defendants re- case of a bond or note given to a, feme strained by the injunction of the Court sole who after marries and survives her from any proceeding at law upon it ; husband ; in such case 'tis certain, if and, the defendants not answering in the money be not received upon the time, the common order of course for bond or note, that it shall survive to an injunction was made ; and, before the wife, and shall not go to the ex- any answer came in, the defendant ecutor of the husband; and if during Lightbourne, the husband, died, on the coverture 't is put in suit, it can't which it was moved that the injunc- be by the husband alone (3 Lev. 408; tion might be dissolved, the cause be- 1 Eq. Cas. Abr. 64; 1 Vern. 393); ing abated; but, on the other hand, it but in such case, the property being 228 GQTERTUEE. a promissory note, and, the husband; dying before answer to a bill for discovery of the consideration, the wife administered to him ; and Lord Chancellor held that, as a wife can have no sepEi- rate property, but whatever sh,e gets during the coverture vests in the husband, the property of this note was wholly his, and that she had no interest in it but as representing- her husband ; and that, therefore, by his death the suit was abated. So, in a case in Bunbury,^ it was held that a note given to a. feme covert was upon her husband's death to be considered as his assets. The husband in this case ij&ceiyed part of the money due on the note, and all the interest from time to time, up tp the tim,e of his death, which must be considered as a reduction into posses- sion of a note. Mr. Bell and Mr. West, for the defendant. The case in Bunbury cannot be relied upon. Hje is a reporter of little authority. It is very clear that the note for 500Z. given in that case being intended for. the separate use of th& vife? she might have insisted upon having it so settled: The case cited from 2 Eq. Cas. Abr. is also from a book of no estimation. ^ Subse- quent cases clearly show that this chose in action survived to the wife. In an anonymous case in Atkins,^ a bill was brought by husband and wife for a demand in right of the wife, and the husband died. Lord Haedwickb said : " It was in the nature of a chose in the wife, the husband is rather having craved oyer of the- bond, de- joined for conformity than from the murred, and the plaintiff had judg- nature of the cause of action. But ment, which shows that the property where a bond or promissory note of a bond or note generally which is (which is much stronger than the given to a feme covert is vested in the present case, for here is no promise husband. This cause, therefore, is to pay to the wife) is given, to a feme now abated, and the injunction ought covert, it hath been held that the in- to be dissolved-, but I will give the terest in such bond or note imme- plaintiff a week's time to revive, diately vests in the husband; and that ^ Hpdgfis v. Beverly, Bunb. 188. he may maintain an action upon it in ^ See Bridg. Leg. Bibl. 112; The his own name. So was Howell's case, Reporters, 305 ; Marv. Leg. Bibl. 48, in 3 Lev. 403 ; (a) it was debt on bond and authorities cited, to the wife. The husband sued alone, ' 3 Atk. 376. without naming the wife ; defendant (a) It- is this case which seems to Justice North, in leaver v. Lane, 2 have been alluded to by Lord Chief Mod. 217. NASH V. NASH. 229 in action, and Survives to her, and the cause does not abate by the husband's death. Although the husband obtains a judgmient for a debt due to his wife) yet if he dies before execution the wife is entitled, and not the representative of the husband. " ^ So in Coppin V. ,^ Lord King held that, "if a bond bo given to husband and wife during coverture, on the husband's dying first it survives to the wife^ as all other joint ehoses in action do; though, it is true, the husband may disagree to the wife's right to it, and bring the action on the bond in his own name only ; butj till such disagreement, the right to the bond is in both the husband and wife, and shall survive. " In a recent case, Philliskirk against Pluckwell,^ a question was made, whether husband and wife may sue on a promissory note made to the wife during fcoverturCi Lord Ellenborough was of opin- ion they might; and says:* "In Go. Litt. 120,^ and in 1 Rol. Abr. Baron & Feme, H. pt. 6 & 7, a difference is taken between a thing that is not merely a chose in action and one that is ; and therefore, in the case of a bond made to the wife, if the wife dieth, l5he husband shall not have it without taking administra- tion, because that is merely in action. So here the note is made to the wife: and it imports consideration, unless the contrary be shown ; " and Mr. Justice DampieEj who concurred with Lord Ellenboeough, cited "Day v. Pargrave,^ in which LfiE, C. J., said, that, where a bond is given to the wife during coverture, no action will lie upon it by the wife solely ; but they may have a joint action during their lives, or the husband may bring such action during the coverture in his own name; yet, if he does not, it survives to the wife. There the action was by the hus- band as administrator on an obligation to the wife during cover- ture ; and it was resolved that it was well brought, for it would have survived to her. " This casCj therefore^ is in point to show that in the present case the chose in action survived to the wife. 1 Bond V. Simmons, 3 Atk. 20. eth void, and the! wife dieth, the hus- " 2 P. Wms. 497. band shall present to the advowson ; ' 3 Maule & Selw. 393. but otherwise it is of a bond made to * 3 Maule & Selw. 395. the wife, because that it is merely in ^ The passage in Co. Litt. runs action.** thus : " If a feme covert be seised of '3 Maule & Selw. 367. an advowson; and the chiirch bfecom- 230 COVEETUEi;. In Wildman v. Wildman,! it was held that stock transferred into the name of a married woman, as next of kin of an intes- tate, upon the death of her husband, without having done any act with reference to it except signing partial transfers by her, survived to her. These cases are opposed only by the case in Bunbury, and in 2 Equity Cases Abridged, — cases of slight authority. The Vice-Chancellor. It appears to me that this note given by the bankers to the wife must be considered as a chose in action which has survived to her. If, immediately after the check was given, the husband had died, the check did not give a legal right to sue the bankers; and, if they refused payment, the father could alone have recovered against them. The note given by the bankers constitu ted a chose in actio n^ It gave a right to recover ; but it was merely a chose in action, and not like money or a chattel. The receipt by the husband of the 1, OOOZ. , and of the interest from time to time till his death, was not a reduction into possession of the remaining 9,000Z. ; it did not alter the nature of the note ; it still remained a chose in action, a security for the remaining 9,000Z. Day and Pargrave, cited by Mr. Justice Dampier in Philliskirk v. Pluckwell,^ is expressly in point. The bond given in that case to the wife not having been reduced into possession in the husband's lifetime, the judges held it survived to the wife ; and being a specialty debt in that case and in this a simple contract debt makes no difference. Wildman v. Wildman^ in principle applies to this case. The stock transferred to the wife did not only give him a right, if he chose, to reduce it into possession, but, as he did not do so, it survived to the wife. In the case of Philliskirk & Wife v. Pluckwell,* the question arose, whether the husband and wife may sue on a promissory note given to the wife during coverture. It was determined they might join in the action. If the property had been absolutely vested in the husband, there could be no reason for the wife joining in the action; but she joined because by survivorship she would become entitled. The cases I have adverted to are modern authorities, and appear to me. decisive ; but, before I finally decide, I will look 1 9 Ves. 174. 8 9 Ves. 176. " 2 Maule & Selw. 396, 397. » 2 Maule & Selw. 393. STANDEFOED V. DEVOL. 231 into the cases cited from second Equity Cases, and from Bun- bury, books certainly of no great authority. The Vice-Chancellor the next day said he remained of the opinion he expressed. Standepoed v. Devol. (21 Ind. 404. Supreme Court of Indiana, 1863.) Reduction to Possession of Wife's choses in action. — Intention to reduce. Appeal from the Putnam Circuit Court. Woeden, J. This was an action by the appellees against the appellants, the object of which was to reach certain lands in the hands of Joseph Standeford, and apply the proceeds to the pay- ment of certain judgments held by the plaintiffs against John Standeford, on the ground that the money of said John had been invested in the purchase of said lands. Trial, verdict, and judg- ment for the plaintiffs. The following is the case made by the evidence : The plaintiffs are the judgment creditors of John Standeford, who is insolvent. About the year 1843, one Josiah Harding made a contract with Hannah Standeford, wife of said John, and Sarah, their daugh- ter, who was then about eighteen years of age, for the sale to them of the land in question, at the price of f 1, 000, one half of which was paid down, and a title-bond executed for the convey- ance of the land to said Sarah. Mrs. Standeford and Sarah executed their promissory note for the residue of the purchase- money, payable in twelve months. The residue of the purchase- money being afterwards paid, the title-bond was surrendered, and, by an arrangement of the parties, a conveyance was executed to one William L. Mahan, a son-in-law of Mr. and Mrs. Stande- ford. Such further conveyances were finally made as vested the title in Joseph Standeford, who is a son of Mr. and Mrs. Stande- ford, Josepji, it may be observed, is not in a position to hold the land free from the claims of the plaintiffs, if the money invested therein be deemed to have been the money of John 232 COVEETDKE. Standeford, his father. The first payment on the land was made in part by the transfer of a promissory note to Harding, which Mrs. Standeford held in her own right. Her husband had nothing to do with the transfer. Except the note above men- tioned, Mrs. Standeford paid for the land with her own money, which she received from the estate of her grandfather. This money was received by her long after her intermarriage with Standeford, and never went into his possession ; nor did he ever receive or claim it, by virtue of his marital rights or otherwise. He never paid anything on the land, Aor had he anything to do with the contract of purchase. The money thus received by Mrs. Standeford, and paid for the land, did not come to her with any kind of limitation to her separate use. Standeford and his fam- ily have had the use and occupation of the land since it was thus purchased. The above are believed to be all the material facts in the case, as condensed from the testimony of the witnesses. It is not a case of conflict of evidence; and the question arises, whether, on the foregoing facts, the plaintiffs were entitled to recover. Was the money thus invested in the land in legal contempla- tion the money of the husband, in such sense as to enable his creditors to pursue it ? The case must be decided upon the law as it stood before our recent statutes enlarging the rights of married women. Had the money in question been in the hands of Mrs. Standeford at the time of the marriage, the case would have been covered by what was said in the case of Miller v. Blackburn, 14 Ind. 62, in overruling the petition for rehearing. On page 82, the following language is employed : " The money invested in the land, not being the separate property of the wife, became, in my opinion, the property of the husband by virtue of the marriage. It was not a mere chose in action, which, in order to make it the property of the husband, required a reduction to his actual possession. Money in the hands of a guardian is deemed, in law, to be in possession of the ward, and that posses- sion of the ward became the possession of her husband upon her marriage. " The case goes upon the theory that the money was in the possession of the wife (the possession of her guardian being her possession) at the time of the marriage. If we were right in assuming that the possession of the guardian was the STANDEFOIID V. DEVOL. 233 possession of the ward, the doctrine stated is sustained by the authorities. Says Mr. Kent, 2 Com. (10th ed.) p. 136: "As to personal property of the wife which she had in possession at the time of the marriage, in her own right, and not en autre droit, such as money, goods, and chattels, and movables, they vest immediately and absolutely in the husband, and he can dis- pose of- them as he pleases ; and on his death they go to his representatives, as being entirely his property." But the case before us is an entirely different one. Here the claim due to Mrs. Standeford, before it was paid to her, was at most but a ehose in action; and the husband was not the owner until he had reduced it to his possession, which he never did. " Marriage is only a qualified gift to the husband of his wife's ehoses in ae- tion, viz., that he reduce them into possession during its con- tinuance," &c. 1 Bright's HuS. & Wife, 36; 1 Kent, Com. 122. Says Mr. Bright, p. 48: "A mere intention to reduce the wife's ehoses in action into possession will be insufficient. The acts to effect that purpose must be such as to change the property^ in them, or, in other words, must be something to divest the wife's right, and to make that of the husband absolute." In- deed, the husband may take possession of his wife's ehoses in action without making them his own. "If he take possession in the character of trustee, and not of husband, it is not such a possession as will bar the rigjit of the wife if she survive him. The property must come under the actual control and posses- sion of the husband quasi husband, or the wife will take as sur- vivor, instead of the personal representatives of the husband." 2 Kent, Com. 127. In Hill on Trustees (3d Am. ed.), page 621, note, it is said: " What will constitute actual reduction to possession is not sus- ceptible of exact definition, but depends on intention. There must be some distinct act evincing a determination to take as husband. " These are elementary principles, and, applied to the case be» fore us, show that the money invested in the land by the wife was not the money of the husband. He not only never had the possession of the money, but he did no act whatever evincing an intention to claim it or make it his by virtue of his marital rights. On the contrary, he left it in the possession and entirely under the control and dominion of his wife, and suffered her td 234 COVEETURE. invest it as above stated, thereby showing that he did not intend to claim it or make it his own. Indeed, there is no ground to claim that the money was that of the husband, unless it be upon the ground that the receipt of the money by the wife during the coverture made it ipso facto the money of the husband. But there is this difference between things in action and in posses- sion. It is undoubtedly true, as was held in the case of Miller V. Blackburn, supra, that money or other personalty in the pos- session of the wife, in her own right, at the time of the marriage, vests absolutely in the husband, without any further act on his part to make it such. But where there is a chose in action due to the wife at the time of the marriage, or accruing to her dur- ing the coverture, he, in order to make it his, must do some act evincing an intention to make it his own ; in the language of the books, his acts must be such a^ to change the property and divest his wife's right. But this doctrine does not rest upon the elementary books alone ; the adjudicated cases fully sustain the proposition that, in the case before us, there was no such reduction of the money to the possession of the husband as to make it his. Some of these cases will be adverted to. The case of Totten v. McManus, 5 Ind. 407, was a bill filed by a creditor of McManus to reach certain lands purchased by his wife after coverture with means which she had before marriage, but which she reduced to cash after marriage. It was claimed that the money, the moment it came into the hands of the wife, became the property of the husband. It was held otherwise by the Court. This case is less satisfactory than it would have been had it appeared clearly whether the property which the wife thus turned into cash was limited to her separate use. The case goes on the theory that the property was the wife's separate property, and is, therefore, perhaps not strictly in point here. But in Miller v. Blackburn, supra,, it was said by Perkins, J., in speaking of the case of Totten V. McManus: "There the husband did not reduce the property of the wife to possession. He permitted her to retain and vest it in real estate in her own name. When that was done, it was placed beyond his reach, without the aid of a Court of Chancery. It remained the wife's property unreduced. " In the case of Gochenaur's Estate, 23 Penn. St. 460, the Court, after quoting the passage from Kent to the effect that the prop- STANDEFOED V. DEVOL. 235 erty must come under the control and possession of the husband as husband, proceeds as follows: "This distinction has been fully adopted in Pennsylvania, and a series of well considered cases, carrying out the principle to its logical result, has estab- lished that reduction into possession, so as to work a change of ownership, is a question of intention to be inquired of upon all the circumstances. Conversion is not reduction into possession, but only evidence of it; and therefore conversion may be ex- plained by other evidence, negativing the intention to reduce to possession in such a manner as to transfer the title. According to these cases, marriage is treated as only a conditional gift of his wife's choses in action, or, to speak more accurately, a gift to the husband of her power to dispose of them to himself or any one else, by force of the dominion to which he has succeeded as the representative of her person; and, because the gift is con- ditional, he has a right to reject it by refusing to perform the condition, ^he law does not cast it upon him beyond his power of resistance ; for every gift requires the assent of the donee, and hence clear proof that the husband received the wife's money as a loan, or a disclaimer of intention to make it his own property, proved by his admissions, will preserve her right of survivorship. " The case of Timbers v. Katz, 6 Watts & Serg. 290, was much like the present in many of its features. There a mar- ried woman had a sum of money due to her on a bond. The money was paid to her by the obligor, and, upon payment, she and her husband executed a receipt to the obligor for the payment. She afterwards invested the money in land in the name of her daughter. It was held, Gibson, C. J., delivering the opinign of the Court, that the transaction was not only not fraudulent, but that the money was not the money of the hus- band, it not having been reduced to his possession ; and that the creditors of the husband could not pursue it into the land. This is a very well considered case, in which the law is clearly stated, and is strictly in point with the one before us. We have only to observe, further, that there is no ground whatever on which to claim that the note transferred by Mrs. Standeford, in part payment of the land, had been made the property of her husband by any act of his whatever. We are of opinion that, on the case made by the evidence, the 236 COVEKTtTfiE. plaintiffs were not entitled to recover ; iand hence that a motion for a new trial, which was made, should have prevailed. Pet Curiam. The judgment below is reversed with costs, and the cause remanded. Maypield v. Clifton. (3 Stewart, 375. Supreme Court of Alabamd; 1881.) Distributive Share reduced to Possession during Coverture. — The Possession of the Husband in his own Right. This was a writ of error sued oUt by Thomas Mayfieldj guar- dian of Nancy Murphy, to reverse the decision of the judge of the County Court, of Madison County, made at June Term, 1829, on the hearing of a petition filed by Mayfield in that Court against Thomas Clifton. Mayfield, in his petitionj represented that Thomas Murphy, of Madison County^ died in 1815j possessed of negroes and other personal property ; that his estate was un- embarrassed and free of debt ; that he left his widow. Prances J. Murphy, and two infant children ; Nancy, of whom he, the peti- tioner, was guardian, and John, of whom Clifton was guardian; that the widow was appointed administratrix of the estate; by ihe County Court of Madison, and shortly afterwards intermarried with Clifton, and that she died in 1827. Whereupon, he prayed a legal distribution of the estate. The cause was submitted to the decision of the judge of the County Court, under an agreed statement of facts, which was in the following words : " "We agree that the . property referred to belonged to Thomas Murphy^ who died at the time stated in the petition, leaving his widowj Frances J. Murphy, and two children named in the petition; that the said widow administered upon the estate of said Murphy, and, after obtaining the grant of administration, intermarried with Thomas Clifton ; that the property was in possession of the said Frances from the death of the said Murphy till her second marriage, and from that event in the possession of herself and the said Clifton till her death, which occurred at the time men- tioned in the petition, and that no distribution of said property was ever made between the said Frances in her lifetime and the MAYFIELD V. QLIFTON. 237 children of Murphy." Upon this statement of the facts, the County Goijrt decreed, that the property should he divided be- tween the children of Murphy and Thomas Clifton, it being the opinion of the Court that Clifton was erititled to the distributive ^hare of his deceased wife, although there had been no distribu- tion made in the lifetime of the wife.. Mayfield prosecuted his writ of error to reverse this decree in the Qoan,ty Court. Mofkin&, for the plaintiff in, error. It is ,a well settled principle of law, that, unle^a the husband reduce the personal property of the wife into possession during coverture, he can acquire no right to it. I understand the Court below to, have gone on the ground that the husband here had possession; bUit his possession was as adjninistrator. As the estate^ was uever divided, if the doctrine to be maintained'. in< support of th«. decree be correct, the^p; he held possession of the whole estate in his own right. A chgjige of thp; character- of possession could, only take place by a division^ otherwise he holds- the whole as; admin- istrator, aud such division could oiiJ.y be made; by an Qrder of Court ;? he could, npt divide for himself. If the doctrine be cor- rect, the County Court has nothing to do but to distribute to the representatives. And, suppose the property- had remained thus until the children had become of age, how cpuld application for distribution be made but by himself and wife. ? it could be made in no other way^ No such application has been made, and, if it had been, it has- not been decided on. In all personal property and ohffses in action of the wife, the husband, acquires no rights until reduced into possession during coverture. That he has never done here, and the right must now be denied him> He could claim it only in right of and jointly with his wife ; he had his petition or action ia her name- and right; bu|j the action of hus- band and wife is now goncj and he never can olaim in his own.^ In TaMaferro's case, Judge Roane referred to a statute of Vir- ginia, but showS' from? Black&tone that the wife's property- must be reduced into possessi-on quasi husband. The property of the wife must be administered upon, and all administrators must distribute for the benefit of creditors and legatees ; but here the husband has no right, under our statute, to the administraitioij, of the property in question; that right died, with her.^ h 2-Call, 3«9-393; Rights of Mar. Worn. 11, 12; 4 Bac. « 1 Blaek. Com. 330, 399; Clancy, Abr. 446; Toll. Ex. 22.Q., 238 COTEETUEE. Mo Clung, for defendant in error. All the English statutes read do not alter the common law so that it applies here. The statute of 29 Charles II. chap. 2, called the statute of distribu- tion, was partly remedial, and did not change the common law. It was intended to give the husband the means of getting posses- sion; but it is immaterial how he gets possession, if it be not tortiously. That possession we have now, and we are not seek- ing a remedy; we have the property, and we want no remedy. But the opposite party do, to dispossess us.^ In Whitaker v. Whitaker,^ the common-law principle is laid down. The New York statute is similar to that of 29 Charles, and the principle decided is that it is immaterial how he gets possession, if it be not obtained tortiously. A case in 2 Connecticut Reports ^ sustains the same doctrine. It is, then, immaterial whether distribution be made or not; he has a chose in action in pos- session. If distribution had been made, it would have been of a third of the property to him, in right of his wife. It is not the same as if she had been entitled to a devise. The law devises this to her, and her assent was not necessary ; and the possession of herself and husband conjointly made it complete.* The property has all along been in possession of Clifton, of which he was by law entitled to a third ; that third is now in his possession; he has only to retain. Hopkins, in conclusion. It is very true that Clifton is in possession of the whole estate, but his possession is undefiled ; it is true the law gives the wife a third, but it does not identify what particular slaves she shall have; the County Court must do that. I In the case cited from 6 Johnson, the right was sus- tained on the statute alone ; and the case from Connecticut went upon a distinction in the English books quite different from ours. There the husband can recover property accruing to his wife during coverture, in his own name, without joining his wife ; a distinction which has not been recognized in Virginia, where he must join his wife as here ; and, as he cannot now do that, his right is gone. When the wife dies, her property is to be administered in the same manner as that of other women. Clifton has no right to the administration of her property, as 1 Clancy on Mar. Worn. 111. * 2 P. "Wms. 137-139; 2 Com. Dig. 2 6 Johns. 112-119. " Baron & Feme," E. 3; Coke, Litt. 8 Page 564. 351 o. MAYFIELD V. CLIFTON. 239 administratrix of a former husband ; and it must be distributed as the property of other persons to her children. By Lipscomb, C. J. If Clifton had died, his wife living, would her share of her first husband's property, under the cir- cumstances stated, have survived to her, or would it have gone to the personal representatives of her last husband? I have stated the proposition in this way, for the purpose of testing the character of the possession held by the defendant of the property in which his wife had an interest to a certain extent, being un- divided, and not separated from the rights of her children. I believe the case of Johnson, Administrator of Ramsey, v. Wren,^ would furnish quite a satisfactory answer. In that case, Ramsey had intermarried with the wife of the defendant, and she, at the time of the marriage, was the legal owner of the Slaves sued for; but she was not in possession. She had hired them for a term of years to her brother, with whom she lived ; and Ramsey was the overseer of her brother, and had charge of the slaves as overseer. He died shortly after his marriage, and before the term for which the slaves had been hired had expired, without having exercised any other control than that of overseer over them; the same station he occupied before and at the time of his marriage. This Court, on the authority of Wfillace et ux. v. Taliaferro et ux.,2 and several other cases equally in point, after much delib- eration, ruled that Ramsey had never had the possession of the slaves as husband, but, up to the time of his death, his posses- sion had been as overseer, and not as owner; and that at his death the right of his wife had survived to her, and that it did not go to his personal representatives. The case of Wallace et ux. V. Taliaferro et ux. , reported in Call, was decisive. The husband, in conjunction with his executor, had held possession of the personal property bequeathed to his wife, and it was ruled that his possession was as executor, and not as husband. The case of Baker v. Hall^ is as strong. Hall, being an executor and trustee of the will of Gregory Wright, married Elizabeth Baker, one of the residuary legatees, and had possession of her personal property, and disposed of some of it, and died, leaving his wife. The question was, whether his possession was such as would transmit his wife's- property at his death to his personal representative, or did the property remain in action and survive 1 3 Stew. 172. ' 2 2 Call, 447. " 12 Ves. 497. 240 COVERTUKE. to the wife? The Master of the Rolla said that the husband must be considered as having entered into possession as executor' and trustee, and not as husband Both these cases conclusively sustain the position, that the possession must be clearly and unequivocally as husband, and not in any other right. And they present so striking an analogy in all their features to the case under consideration, that we are brought irresistibly to the con- clusion that, whatever kind of possession Clifton had, it was as administrator in right of his wifte, and not as husband and owner ; and, had he died, his: wife living, there could have been no doubt that the right to her share of her first husband's prop- erty would have survived to her, and not have gone to the personal representatives of her last husband. Our statute of distribution had given her one third of her deceased husband's property, but it had not designated the particular property comr prising that one third ; and, until it had been set apart to hsr as a distributee, her share as well as the; shares of her two childi-en were in action, and not in possession. Clamcy, in his excellent treatise on the Rights of Married Women, ^ when discussing the rights of the wife as survivor^ lays down the rule to be thus : that "whenever the husband may bring suit either jointly or in his own name, at his election, the action would survive to the wife. But, if he is compelled to sue in his own name separately; the action goes to his personal representative. " And the case is put, by the same author, of a suit having been brought in trover by husband and wife jointly, for a chattel lost by the wife dum. sola, and converted after coverture. After verdicl^ on a motion in arrest of judgment, on the ground that the suit should have been in the name of the husband alone, the judges, were equally divided. But, in a subsequent case, the Court were unanimous that the suit might be brought either in their joint names or in the name of the husband alone. All the right that Clifton could exercise over the property of the estate of Murphy was exerted as administrator in right of hiswife, and his pos- session of her individual share was not as husband, but as ad- ministrator. If it had become necessary to sue for any of it in consequence of" its haying been lost, he eould not have sustained the action^ in his own name ; but he would have been compelled to have brought the suit in the joint names of himself and wife. 1 Pages 8 and 9. MAYFIELD V. CLIFTON. 241 It is contended, in support of the order of the judge of the County Court, that although the husband had never reduced his wife's share of the estate into his- possession quasi husband, yet that he is entitled to sue for it as her representative, by the rule of the common law. This is not believed to be the correct rule. In the early period of English history, ' little regard was paid to chattel interests, and.it was a long time before the personal property of an intestate became the subject of legislation. It was not considered of much value, the great source of revenue and wealth in those times growing out of those feudal tenures, the little personal property that a man died possessed of, if he made no disposition of it by will, went either to his lord para- mount or to the church, to be disposed of for the good of his soul in pious purposes. So long as a blind submission and confidence prevailed as to the power of the clergy in this life, and in the efficacy of their prayers in redeeming the souls of the departed, no serious objection was made to this mode of disposing of the , personal property. Indeed, it would have had but little effect, and would have been looked on in those times as heinous impiety in the surviving relatives to attempt to divert the personal prop- erty of the deceased to any other purpose. The separation of the chattel from the possession of the owner was then, too, a case of very rare occurrence. But, as commerce increased, personal property became an object of much "greater importance; it then composed in many instances the mass of very large fortunes. The public mind had somewhat shaken off the influence of reli- gious superstition. The statute of 31 Edward III. was the first step in a system of legislation that finally resulted in the stat- ute of distribution of 29 Charles II., securing to the relations of an intestate the enjoyment of the personal property. We have no authority for believing that, prior to that statute, any exception was made by the canons of the church, or by the rules of the common law, in favor of the husband who had not reduced his wife's personal property into possession during coverture. It must, however, be admitted, that elementary authors have not treated the subject with very minute care. But whoever held the administration, whether he was the lord paramount or the prebendary of the church, held the personal property, after the administration, to his own use. The language of Mr. Clancy is, " that since the statute of 31 Edward III. , chapter 11, by which 16 242 CQVEfiTUfiE« it is enacted, 'that, in case where a man dieth intestate, the ordina- ries shall depute the next and most lawful friends of the deceased person intestate to administer his goods ; ' it has been held that administration of the wife's goods belongs, of right to the hus- band ; and as, by the statute of distributions, it is provided that nothing contained in it shall be construed to extend to estates of femes covert that shall die intestate, but that their husbands may- demand and have administration of the rights and credits and other personal estates, and recover and enjoy the same, as they might have done by law before the making of this act, — it fol- lows that the husband is now entitled, for his own benefit, to the .chattels real of his deceased wife, and to all things in action, trust, and every other personal property, whether actually vested in him and reduced into possession, or contingent, or recoverable only by action or suit " From this quotation, it is very clear that the learned author considered the right as given by the statute of Edward III. , and confirmed by the statute of distribution ; if it had been otherwise, he would not have given the enactment of the first statute as the period of time when this rule first pre- vailed, that the husband should succeed to the ehoses and chattels in action of his deceased wife; Before the statute of distribu- tion, as I have before remarked, all the personal property of the intestate vested in the person to whom administration was granted, and the statute of the 31 of Edward III. had previously directed to whom the ordinaries should grant the administration. The exception in favor of the husband in the distribution of his deceased wife's property not reduced to actual possession relates to the previous statute, and not to the common law. Many of the profession have, I doubt not, formed an erroneous opinion of the origin of the husband's right, by not attending sufficiently to the meaning of the expression, "as he might by law have done," used as the exception to the statute of distribution. If this ex- ception' had not been made, the wife's personal property in action, at her death, would have been distributed to her rela- tives, and would have defeated the construction that the Courts had given the statute of Edward III. With due deference to the great learning of Judge Spencer, it seems to me, that, in the case in 6 Johnson he did not attend to the true origin of the hus- band's right to succeed, on the death of his wife, to her personal property in action; if he had done so, he never could have HOWAKD V, BRYANT. 243; ascril^ed to it a common-law origin. He tftS fjillen the nioi;^ readily into this error, from the circumataince of the statute of the 29 Charles II. being in force in New York; none of the Eng- lish statutes are in force in this State, and Olir own statute of distribution essentially differs from theirs. If it w^s therefore admitted, that, under our own statute, the hu^ba-nd would be entitled to the administration, it would not, as in England, con- fer, on him a right to the property, but it would be distributed to the nearest kin in equal degrees. If the busbaind hap incurred and paid debts contracted by his wife diim sola, it is his mis- fortune that he did not, whilst it was in his power, reduce her personal property into possession. I am not prepared to say, that, in such a case, he would be wholly remediless. It is possi- ble that he could find relief by resorting to a Cpyrt pf Chancery. I incline to the opinion that chancery would charge t^e prop^ erty of the wife not in possession during coverture to the extent of her debts dum sola paid by, her husband during coverture, if there was a deficiepcy of propetry in ppsiession to reimburse th§, husband. We are not, however, called on to decide this ques-; tion. We are of opinion that the possession of Clifton, the; de- fendant in this case, was as administrator, and that he is not entitled to the share that his deceased wife would have received if the' distribution had been made during her life. The order, and judgment of the County Court must therefore be reversed, and the cause remanded. I^^er-ee mv^ts^d and vemanc^id. Howard v. Bryant. (9 Gray, 239. Supreme Judicial Court of Slas^Mhusetts, 1857.) Chose in action reduced to Possesion by receiving something else than that due by its Terms. Action oe contbagt to recover g, legacy given to the plaintiff, when sole, by her father's will, in these terms : " I give to my daughter, Sarah W. Bryant, one hundred and fifty dollars, seventy-five dollars to be paid to .her by my son, Ebenezer 244 ' COVERTURE. Bryant, when he arrives at the age of twenty-two years, and seventy-five dollars more at the decease of my said wife." The defendant was named in the will as principal devisee and residuary legatee, subject to a life-estate in the testator's widow, who died before this suit was brought. The plaintiff married John Howard in 1808. The defendant arrived at the age of twenty-two in 1809, and, in 1813, conveyed all the estate so de- vised and bequeathed to him to John Howard, by quitclaim deed, in the usual form, and containing, after the description of the premises, these words: "And it is considered that the said John Howard is to pay all the legacies which I am bound to pay by my father's will. " Howard died intestate in 1824, and the plaintiff was appointed administratrix of his estate, and demanded payment of the legacy before bringing this action. The parties submitted the above case to the judgment of the Court. A. V. Lynde, for the plaintiff, cited Legg v. Legg, 8 Mass. 99; Hayward v. Hayward, 20 Pick. 526, 530; Daniels v. Rich- ardson, 22 Pick. 570; 1 Dane, Abr. 342-344; Brotherow v. Hood, Comyn, 725; 1 Bright on Hus. & Wife, 37. J. P. Converse, for the defendant, cited Commonwealth v. Manley, 12 Pick. 173; Tuttle v. Fowler, 22 Conn. 58; Bates V. Dandy, 2 Atk. 207 ; Reese v. Keith, 11 Sim. 388 ; Doswell v. Earle, 12 Ves. 473; Bosvil v. Brander, 1 P. Wms. 458; Clancy on Hus. & Wife (Amer. ed.), 138, 139. Metcalf, J. The legacy given to the plaintiff by her father did not, on her marriage, vest absolutely in her husband. It was a chose in action which survived to her on his death, unless he had reduced it to possession, or released it, or had made a valid assignment of it, or had, in some other way, legally barred her right to it. And any lawful exercise of an act of ownership, by a husband, over his wife's chose in action, by which he appro- priates it to his sole use, is such a reduction of it to possession as bars her right of survivorship. In this case, the legal effect of the facts is, that the plaintiff's husband received the amount of her legacy, by applying it towards payment for the land which he purchased of her father's residuary devisee, and in which she became entitled to dower. Plaintiff nonsuit. HONNER V. MORTON. 245 HoNNEB V. Morton. (3 Russ. 65. High Court of Chancery, 1828.) Assignment of Wife's Remainder in Chattel Interests ; Survivorship; Confirmation by Wife of Husband's Assignment. Anthony Calvert, by his will, dated in November, 1808, be- queathed the residue of his estate to trustees, upon trust to invest a certain share of it in the public funds or on real secu- rities, and to pay one half of the interest or dividends to Eleanor Torrie for her life, and the other half to Susannah Brewer dur- ing her life ; and he directed that, after the death of the tenants for life, respectively, the trustees should transfer the principal moneys and funds, in equal shares, to the two daughters of Eleanor Torrie, then living. The testator died in the following December; and a sum of 14,395Z. three per cent consolidated bank annuities was placed in the name of the trustees, as that part of his residue in which Eleanor Torrie and Susannah Brewer were interested. Eleanor Torrie, the tenant for life of one moiety of the fund, had two daughters at the date of the will. She died on the 1st of April, 1824. Mrs. Brewer, the tenant for life of the other moiety of the fund, was still living. The plaintiff, one of the two daughters of Eleanor Torrie, was, at the date of the will, and at the death of the testator, the wife of John Honner ; and he died in January, 1817, before his wife's reversionary interest fell into possession. During the coverture, Mr. and Mrs. Honner executed inden- ■ tures, dated in March, 1814, November, 1814, January, 1816, and November, 1816, by which they assigned, for valuable con- sideration, to different purchasers, various portions of the trust fund to which Mrs. Honner would be entitled on the death of her mother and Mrs. Brewer. ^ The assignment of November, 1816, was made to one Streater. Mrs. Honner, after the death of her husband, agreed to sell to Streater a further portion of the fund ; and this agreement was carried into effect by an indenture, dated in November, 1817, which was indorsed on the assignment of November, 1816. 246 COVERTURE. This indorsed deed was made between Mrs. Honner, of the one part, and Streater, of the other part; it recited that Streatpr wab entitled, under the within written indenture, to a certain portion of the fund, and referred to the other assignnaents ; and it purported to transfer the property to Streater, subject to these assignments. On the 4th of May, 1824, ^ Mrs. Honner filed her bill, insist- ing that the assignments made while her husband and the ten- ant for life were both alive did not bind her, and praying that her portion of the fund liiight be transferred to her. The principal qnestioii was the same as arose in Purdew V. Jackson, namely, whether, Vhen a husband and wife have assigned to a purchaser, for valuable consideration, an ascer- tained fund in which the wife has a vested reversionary interest, expectant on tlie deatt of a tenant for life, and the wife and the teiiant for life both outlive the husband, the wife is entitled, by right of surviVoi*ship, to claim the whole of the fund against Such particular assignee for valuable cofisideration ? No authorities and doctrines Were referred to by the counsel on either side, which were not mentioned in the argument of Purdew v. Jackson, except Lee v. Muggeridge.''' The assignees t)f the fund contended tliat, even If the principal question should be decided against them, the wife was bound by acquiescence, having suffered more than seven years to elapSe after the death of her husband without questioning the validity of the instru- ment; and they further insisted that the deed of November, 181 f, executed by the plaintiff when she was a. feme sole, would operate as a confirmation of the prior assignments t6 which it purported to be subject, or, at least, of the assignment of Novem- ber, 1816. To this it was answered, that it was not incumbent on the ■plaintiff to assert her right till the fund fell into possession. As to the deed of November, 1817, it could not gi^e validity to in- ^StrUrtients which were not previously binding on her; because there was no intention, in any of the parties, that it should operate as a confirmation. A purpose 6f confirmation would have been manifested by express words of confirmation. The -assignments Of 1814 and 1816 were, at that time, believed to be 1 After the decision in 'Purde%'u. « 5 Taunt. 36. Jackson, 1 Russ. 1. HONNER ■0. MORTON. 247 valid; and, on this notion, it was very natural that they should be mentioned in the assignment which the wife executed after her husband's death. It could not give any validity even to the prior deed of Streater himself; still less could it operate as a confirmation of the deeds of persons who were not parties to it. Mr. Shadwell, for the plaintiff. Mr. Home and Mr. Ooombe, for Streater. Mr. Sugden and Mr. G-irdleston, Jr., for some of the assignees of the fund. Mr. Lovat and Mr. Grarratt, for others of the assignees. The LoKD Chancellor. This fund was A'chosein action of the wife ; it was her reversionary >chaie in action. Whether the hus- band has the power of assigning -his wife's reversionary interest in a ohose in action, is a question which has been repeatedly agitated, and has excited considerable interest both at law and in equity. At law, the cho&es in.aetian of the wife belong to the •husband, if he reduces them into possession; if he does not re- duce them into possession, and dies before his wife, they -survive "to her. When 'the "husband assigns the chose in action of his wife, one would suppose, on the first impression, that the assignee would not be in a better situation than the assignor ; and that he, too, must take some steps to reduce the subject into posses- sion, in order to make his title good against the wife surviving. But equity considers the assignment by the husband as amount- i-ng to an agreement that he will reduce the property into posses- sion ; it likewise considers what a pa^ty agrees to do as actually done ; and therefore, where the husband has the power of re- ducing the property into possession, his assignment of the :cAo8« in action of the wife will be regarded as a reduction of it into possession.^ On the other hand, I should; also infer, that, where the husband has not the power of reducing the ehose in action into possession, his assignment does not transfer the property, till, by subsequent events, he -comes into the situation of being 1 This rfietom. that equity considers 309; Amngtottw.YarbQi!ough,,lJones, the assignment as an agreement to re- Eq. {post), and notes; 3 Lead. Cases duce the property into possession, has in Eq. *660 et seq. See, however, been since repudiated. See Ashby ». Browning u. Headley, S'-Rob. (Va.) ■Ashby, 1 CoUyer, Ch. 554, citing El- 370; Matheney v. Guess, 2 Hill, Ch. win V. Williams, 12 Law J. Ch. 440; 63; Schouler's Dom. ,Rel. .125, » and 7 Jur. 337 ; Ellison v. Elwin,.13 Sim. cases cited. 248 COVEETURE. able to reduce the property into possession; and then his pre- vious assignment will operate on his actual situation, and the property will be transferred. Such are the views which would occur to the mind, if there were no cases or authorities on the subject. But the question has frequently been under the consid- eration of Courts ; and it is material to consider what the au- thorities are, both on the one side and on the other. Sir William Gkant, in Mitford v. Mitford, referring to an opinion which had been entertained in the profession, that the husband's assignment, for valuable consideration, of the wife's chose in action, passed an absolute right to the property, freed from the wife's contingent right by survivorship, seems to have intimated a strong doubt of its soundness. "If such be the rule," says he,^ "it is the favor a Court of equity shows to such ■ a purchaser that operates, as in many cases it does, to put him in a better situation than the party from whom he derives his title. " In White v. St. Barbe, he has said, in distinct terms,^ that " a husband can dispose of such property of his wife in expectancy against every one but the wife surviving ; " thereby intimating his opinion, that against the wife surviving the husband's assignment would not operate. Thus stood the question when Hornsby v. Lee^ came before the Court. In that case the question was argued on both sides ; and Sir Thomas Plumeb decided that the husband's assignment of the wife's reversionary interest was not valid against her sur- viving. It is true that it was a contingent interest which was there assigned ; but the decision did not at all turn on that par- ticular circumstance. The case of Hornsby v. Lee excited considerable inquiry in the profession ; and it was discussed very much at length in Mr. Roper's book on the Law of Husband and Wife. After the attention of the Court had been directed to that decision, the question came again before the same judge in Purdew v. Jack- son.* The point was clearly and distinctly raised. It was argued with great learning and ability on both sides, and par- ticularly on the side adverse to the opinion of the Master of the Rolls. After the first argument, the importance of the question, and the doubts which had been entertained with respect to it, 1 9 Ves. 99. 8 2 Mad. 16. » 1 Ves. & Beames, 405. « 1 Russell, 1. HONNEE V. MORTON. 249 induced the Court to direct a second argument. It was argued again by one counsel on each side, and the Master of the Rolls took time to consider of his judgment. At length he delivered a most elaborate judgment ; and, after going through every part of the question, came to a conclusion consistent with his opinion in Hornsby v. Lee, — that the husband could not assign the re- versionary interest of his wife in a personal chattel, so as to bind her if she survived him. Thus stand the cases in point, and the direct authorities on the one side. These decisions are consistent with the princi- ple to which I have adverted. They support that principle, and are founded on it ; and I should feel myself bound by those authorities supporting a principle in which I concur, unless I found them overborne by a superior weight of authorities on the other side. , It is not my intention to go through all the authorities that have been referred to as contradicting the conclusion to which Sir Thomas Plumer came : I shall satisfy myself with adverting to two or three of them, which have been most relied on. Dawbury v. Atkins ^ was cited at first with much confidence, but appears ultimately to have been given up. The decree in that cause was, in one respect, clearly erroneous : and the Court seems to have considered the legacy, though charged on a rever- sion, as a present gift ; for interest was allowed on it from the death of the testator. In Grey v. Kentish ^ the decision was in favor of the wife; and therefore, so far as relates to the decree, that case is not an authority against the wife's right by survivorship. But it is cited on account of a dictum which occurs in the report of the judgment. There Lord Hardwicke is represented as stating, distinctly and in terms, " a husband cannot assign in law a pos- sibility of the wife, nor a possibility of his own; but this Court will, notwithstanding, support such an assignment for a valuable consideration." In the first place, this is a mere dictum, and was not essential to the decision of the case. It is also to be ob- served, that the case is most inaccurately reported. As stated in Atkins, it is unintelligible ; and it is only by attending to the corrrection of it in a note by Mr. Cox, that we are able to ascer- tain what the true facts were. I mention this circumstance for 1 Gilb. Eq. 88. » 1 Atk. 280. 250 eOVEETUKE. the purpose of showing that in Grey v. Kentish not Tntich reli- ance can be placed on the accuracy of the reporter. In Bates v. Danby ' the decision was against the wife ; but then no doubt could be entertained as to the husband's power over the property, which was the subject of assignment there ; and the application of that case, also, to the present question rests not on the decree, but on a dictMn wholly unnecessary for the decision of the actual points which were before the Court. "The husband," so sayS the report, "may assign the wife's chose in action or a possibility that the wife is entitled to, as well as her term, so that it be not voluntary but for a valuable consider- ation; but, though he cannot dispose of hev /ihose in action with- out a valuable consideration, yet he may release the wife's bond without receiving any part of the money. " Here is the opinion of a very learned judge, not essential to the decision of the par- ticular case, conformable to an opinion said to have been ex- pressed by him in another case, where also. it was not essential to the decision. But in considering what weight these dicta are entitled to, it is material to consider whether the same judge has ever expressed an opinion tending a contrary way. In Bush v. Dal way, ^ if the husband had died in the father's lifetime, the same question might have arisen as exists here. The actual State of circumstances in Bush v. Dalway was that the father died first, and then the husband ; the husband, upon the death of the father, had a right to the money which was in question ; and it was upon the ground of the death of the father in the husband's lifetime that the wife was Considered as bound by the covenant of the husband to assi^ the fund. Lol-d HardwickE says: "Perhaps the event might have happened in which she would not be bound, as if the right of action never had vested in the husband, but here it did by his surviving the father. A question was made whetlier ithe husband had a right to assign it in his father's life, which is not neces- sary here, although I think he might not. Here," continues he, "before the father's death he had no right of action at all ; but, afterwards, he might have called for it immediately, which the wife could not have otherwise prevented than by a bill for performance of the covenant."^ The learned judge here says 1 2 Atk. 208;, 1 Russell, 33. « 1 Yes. Sen. 20. 2 1 Ves. Sen. 19; 3 Atk. 530. HONNEK ated a,s a material element in the transaction. iBut in the release or assignnjent of the wife's choges in action by the husband, for his own interest, the wife's uniting: with the hus- band in the execution of the contract is a matter of no legal consequence whatsqeyer. In re;g'ard to'^the personal estate of the wife, not held in trust for her separa,te use, iihe husband repre- sents the-wife, exercises all her aUfth^rity ; and, indeed, in con- templation of law, the legal existence of the wife in that regard is merged in that of the husband. There is but one mode known to our law by which a married woman is a,uthorized to join her husband in the execution of a . contract, and that has reference to real estate, a,nd is done under certain formalities and guards against mari,tal influence prescribed by &tatute,i not attempted to be followed in this case. It was held in Stamper v. Barker, 5 Mad. C. C. 157, that the wife could neither be barred of her right by survivorship to her reversionary interests, by her con- sent in Court in favor of her husband, nor could she upon sepa- ration from her husband bind herself by deed stipulating that he should have a certain pairt of her- contingent p]:;operty when it should fall into possession. T^he wife's consent, even in Court, or her joining her husband in an assignment or deed for her reversionary interests, has been held ineffectual as to her right of survivorship in numerous cases. Hornsby v. Ivee, 2 Mad. C. C. 16; Woollands v. Crow- cher, 12 Yes. 174; Pickard v. Roberts, 3 Mad. C. C. 384; White V. St. Barbe, 1 Ves. & B. 405. It is by force of the stat- ute in this State ^^^^ ^^^ wife's interest in property is-affected 260 COVEETUEE. at law by her joining in tlie execution of a conveyance. The inquiry in this case, therefore, involves the question of the ex- tent of the power of disposal, by the husband, of the wife's con- tingent interest or mere expectancy. It appears to be well settled that the wife's contingent right by survivorship to her choses in action, immediately reducible into possession, may be barred by settlement before or after marriage, by actual reduc- tion into possession, or certain acts held to be equivalent to actual reduction into possession, — such as the recovery of a judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole name of the husband, by an assignment by the husband for a valuable consideration, or by release. It appears to have been held in England, at one time, that an assignment for a valuable consideration of the wife's choses in action, presently reducible into possession, would not defeat the right of the wife by survivorship. Burnett v. Kinaston, Preem. 241. But for a series of years past it appears . to have been settled in that country that an assignment or re- lease for a valuable consideration by the husband, of the wife's choses in action immediately reducible into possession, would bar her title by survivorship. Clancy's Husband & Wife, 150. But the more recent English equity cases are wholly irreconcilable with the former decisions on the subject of the power of the hus- band to defeat, by assignment, the contingent right of the wife by survivorship to her reversionary interests, or choses in ac- tion not immediately reducible into possession. In Chandos v. Talbot, 2 P. Wms. 601 ; Bates v. Dandy, 2 Atk. 206 ; Hawkins V. Obyn, id. 549, it was held that the wife's reversionary or con- tingent interest, or the possibility of a term, or the specific pos- sibility of the wife, may be released or assigned by the husband for a valuable consideration, so as to defeat her title by survivor- ship. But a different doctrine was held to be law in Hornsby v. Lee, 2 Mad. C. C. 16 ; in Purdew v. Jackson, 1 Eussell, 70 ; in Honner v. Morton, 3 id. 65 ; and in Mitford v. Mitford, 9 Ves. 87. In the last-mentioned case, Sir William Grant disputed the soundness of the rule, that the husband's assignment for a valuable consideration passed the wife's chose in action, freed from her contingent right of survivorship, upon the ground that in such case the purchaser would take a greater right than the husband had. In Hornsby v. Lee, Sir Thomas Plumer held that NEEDLES V, NEEDLES. 261 tlie husband's right to the wife's choses in action was dependent on the contioigency of his reducing them to possession during coverture ; that a deed assigning a reversionary interest is not an actual reduction into possession, because it is impossible to re- duce a reversionary interest into possession ; and that it could not be a constructive reduction into possession, because its only effect is to place the assignee in the same situation as th« as- signor; that is, if the husband survive the wife, the assignee would retain the property ; if, on the other hand, the wife sur- vive while the interest continues reversionary, she is entitled to the property. It is proper to observe that our attention is directed to the question of the wife's right of survivorship, and the extent of the husband's power of disposal to affect it by assignment or re- lease. We have nothing to do at present with the question, which is of frequent occurrence in chancery cases, touching the extent to which the husband, by assignment of the wife's prop- erty, may affect what is termed the wife's equity to a suitable provision out of the property for the support of herself and her children. That is a subject wholly disconnected with the question now before us, and presents very different rules for consideration. In the case of Purdew v. Jackson, above cited, where the question directly arose as to the power of the husband to bar the wife's right by survivorship to such reversionary interest, by an assignment for a valuable consideration, the authority of the de- cision in Hornsby v. Lee was strenuously denied; and the Master of the Rolls, in affirming his views expressed in the former case, after a patient hearing and searching investigation of the whole subject, said: — "The law of marriage gives the wife's choses in action to the husband, on condition that he reduce them to possession during its continuance ; if he die before his wife without having done so, she takes them by survivorship. How, then, his honor asks, can he bar her right of survivorship by an act which is nbt a reduction into possession, and that, too, at a time when it is impossible, from the nature of the reversionary chose in action, that it should be reduced into possession ? That if it be said that her right may be barred by some- thing short of reduction into possession, namely, an assignment for valuable consideration, we must alter the doctrine laid down in our books. It will no longer be true that the husband shall not have the chattels personal of the wife lying in action, unless he reduce them into possession during the mar- 262 COVEETUEE. i'iage. That the effect of an assignment for a valuable consideration operates no otherwise than by putting the sissignee in the place of the assignor; that the assignor cannot give to another a power wLich he himself does not possess ; and that, therefore, where the wife has a chose in action which the husband himself cannot recover, he cannot assign over to another the right to reduce it into possession. That the husband's right is merely a right to obtain posses- sion of the subject, when the period arrives at which the wife is entitled to the possession of it; and if he die in the mean time^ leaving his wife surviving, his right is gone, and the right of the surviving wife takes effect. The assignee for valuable consideration must take the right as the husband him- self had it; he buys the chance of the husband's outliving the wife, or of the reversionary chose in action falling into possession during coverture, and he must wait to see how the event turns out. That in this case the husband had died before the chose in actioti had Been reduced into possession ; the assignee had, therefore, lost all chaHce of recovering it, and the wife took it by her right of survivorship." This doctrine was reaffirmed in Morley v. Wright, 11 Ves. 12 ; and also in Ellison v. Blwin, 13 Sim. 309. And again, in Honner v. Morton, above cited, Lord Chancellor Ltndhuest fully siistained this doctrine, which had been declared by the snccessive Masters of .the Rolls, Lord Alvanlet, Sir William Grant, and Sir Thomas Plumee, as to the reversionary interest of the wife ; and, in doing so, he took ai distinction between a case where the husband had the power at the time of the assign- ment of reducing the phase in action or interest into immediate possession, and where he had not, — holding that, in the former case, the Assignment ought in equity to be regarded as a con- structive reduction of the property into possession; for as he had the power of reduction into possession and the assignment amounted to an agreement to do it, equity would regard that as being done which the party had agreed to do. This doctrine, however, so well supported by authority and by reason, and ap- parently resting on ground incontestable, was strenuously and with laborious ^research controverted by Chief Justice Gibson in the case of Siter and Another, guardians of Jordan, 4 Rawle, 408, wherein he contended that marriage worked not only a transfer to the husband of the wife's choses in action reduced to possession during coverture, but a transfer of the wife's dontin- ion and power of disposal, so that whatever interest she might have assigned if &.feme sole, the husband could assign or release for a valuable consideration; and that the distinction between vested and eoHtingent or reversionary interests of the wife^ in NEEDLES V. NEEDLES. 263 respect to the marital dominion and power of transfer over it, made in the recent English cases, is without foundation. But the extensive and critical reviews of the English cases by Chief Justice Gibson was not necessary to the decision of his case, and could only have been designed to expose a supposed erro- neous theory in the English decisions, inasmuch as the author- ity of the case of Siter is to the effect only, and can go no further than, that the assignment ai a wife's chose in action by her first husband to trustees for the benefit of the wife and chil- dren, and to place it beyond the power of waste by a subsequent husband, was meritorious and valid in equity. The views of Chief Justice Gibson on this subject, however, have been adopted in subsequent decisions in Pennsylvania, in which ithey were applicable, and reluctantly followed in the recent case of Webb's Appeal, 21 Penn. St. 248, wherein the remark is made in the opinion of the Court. "However averse to this conclu- sion some of us might be, if the question were an open one, we remember that our office is jus .dic&re, and not Jus dare; and we bow to authorities which we are bound to respect." This doctrine, however, appears to be peculiar to Pennsylva- nia. I have not been able to learn that it has been recognized in any well-considered case in either of the other States in this country. The case of Tuttle v. Fowler, 22 Conn., goes no fur- ther than to decide that the husband's assignment of the wife's chose in action capable of immediate reduction into possession, was substantially such a reduction into possession by the hus- band as to defeat the wife's right by survivorship. The doctrine of the decisions in England above mentioned was recognized as law by the Court of Errors and Appeals in Missis- sippi in the case of Sale v. Saunders, 24 Miss. 25 ; and has been followed in numerous other cases in this country. And the distinguished law writer, Mr. Clancy, in his treatise on the rights, duties, and liabilities of husband and wife, sus- tains the doctrine of the English decisions in relation to the wife's right of survivorship in her contingent or reversionary estate, and denies that the power of disposal by the husband, so as to bar the rights of the wife by an assignment for a valuable consideration, is absolute. The effect of the law upon this sub- ject would seem to be, that the wife's dominion or power of dis- posal, which the husband by virtue of the marital relation 264 COVEETUEE. assumes over the wife's choses in action, consists not in his suc- cession to the wife's right of property, but the power of control and management of her choses in action for the wife's benefit, together with the power of acquiring an absolute right of prop- erty in the same, so far as they are capable of reduction into possession. There can be no ground for a distinction between the power of the husband to bar the wife's contingent right of survivorship by assignment, and that of doing the same thing by release. If the husband could not by assignment transfer to the assignee any greater interest than that which belonged to him, he certainly could not by release to the releasee. The reason which controls in the one case must prevail as to the other. And where the husband has not the power of disposal to affect the wife's right by survivorship by assignment, he could not affect it by release. This view of the law is decisive of this case. The interests in expectancy of the four daughters of Philemon Needles, whose husbands executed the instruments in the petition mentioned, were not, of course, capable of reduction into possession at the time of the execution of the instruments, and were not, by either of the husbands, reduced into possession afterwards. And in the proceeding now pending, the claim to the inheritance is set up in behalf of each of the wives, and not of that of either of the husbands. It has been urged in this case, that where a/eme covert has a right which, by possibility, may happen during coverture, the husband may release it or covenant to release it for value, and hona fide, so as to bind the feme forever. And this raises the inquiry whether there was any right or interest which could have been the subject-matter of release at the time of the execu- tion of the instruments in question. It has been said that, "where the wife hath any right or duty which by possibility may happen during the coverture, the husband may, by release, dis- charge it. " Sheppard's Touchstone, 151. It is true, as a gen- eral thing, that all contingent and executory interests and contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, are assignable and releasable. But it is also a general rule, that a naked or remote possibility cannot be released, for the reason that a release must be founded on a right in being, vested or NEEDLES V. NEEDLES. 265 contingent. 8 Bacon's Abr. 280; Pellitrean v. Jackson, 11 Wend. 110. Where there is a present existing right, although to take effect in future, and even then only on a contingency, it may be released. 9 Johns. 123. But in case of a mere possibil- ity, or a remote possibility, which is termed in law a possibility on a possibility (4 Kent, Com. 206), there is no right in being which can be the subject of release.- " The word ' possibility, ' " , says Smith on Real and Personal Property, "has a general sense, in which it includes even executory interests, which are the objects of limitation. But, in its more specific sense, it is that kind of contingent benefit which is neither the object of a limitation, like an executory interest, nor is founded in any lost but recoverable seisin, like a right of entry. And what is termed a bare or mere possibility signifies nothing more than an expectancy, which is specifically applied to a mere hope of suc- cession unfounded in any limitation, provision, trust, or legal act whatever ; such as the hope which an heir, apparent or pre- sumptive, has of succeeding to the ancestor's estate. " Smith on Real and Personal Property, 192. And it appears to be well settled, that a contingent interest of a person unascertained, or a mere possibility as distinguikhed from a contingent interest in a person who is ascertained, or the mere hope or chance of succession of an heir apparent, cannot be released. Sheppard's Touch. 322 and 328. It is manifest, therefore, that at the time of the execution of the instruments in question, there was no right or interest in being which could have been the subject-matter of release. But it is said that although such a release or assignment of the mere possibilities or expectancies of heirs apparent is wholly invalid at law, yet that a Court of Equity will regard it, and give effect to it, as a contract to release, when the interest, becomes vested, and consequently that, when the interest doe's so become vested, th6 claim of the releasee will be enforced, not indeed as a trust, but as a right under a contract. Or, in other words, that^the hope or chance of succession would be barred by estoppel. It might be a sufficient answer to this to say that no claim is set up in this proceeding, in behalf of either of the husbands, to any interest in his wife's inheritance from her father's estate ; and that the instruments in question, if regarded in equity as con- tracts to be enforced, must be treated as the contract solely of 266 COVEKTUEE, each of the husbands, and as creating no esttjppel againa* the wife. But, for my own part, I feel no hesitation in questioning the validity of such a contract What is the real character of the contract before us? Philemon Needles, in his lifetime, made certain advancements to four of his daughters, and took from the husband of each a receipt for the, amount advanced, in Which the husband acknowledged the same "to be in full of, all claims he could have against thfi estate of said Philemon Needles, after his death, as one of his heirs," and stipulating for himself and his heirs "not to set up any further claim." Where is the mutuality either of consideration or of obligation for this agreement ? The advancement was a voluntary act ; ;and whether Philemon Needles should thereafter give any more of his prop- erty to these children depended on his own pleasure. He could, by his will, so distribute his property as to wholly deprive them of any further share in his estate; or he'oOuld, as he actually did subsequently choose to do, in the distribution X)f his property by will, give them a further share in his estate. The stipulation only conceded to Philemon Needles that which was an inherent legal right of his own in the disposition of his own property. The real nature of the contract was such as to impose no binding legal obligation. If Philemon Needles chose, afterwards to make further donations to these children, this contract could not pre- vent their acbepting it ; and if he was disposed to give all the residue of his property to others, he had the legal right and full power so to do, without any such agreement.^ . . . Ordered, that an equal distribution be made among all the heirs-at-law of Philemon Needles, deceased, of the residuum of his estate undis- posed of by will. Brinkeehoff, Bowbn, and Scott, JJ., concurred. Swan, J. , having been of counsel, did not sit. 1 The remainder of the opinion is foreign to the matters treated of in devoted to the discussion of a question this Volume, and hence is omitted. CAPLINGEK a. SULLIVAN. 267 CAPLiifGBR V. Sullivan. (2 Humph. 548. Supreme Cojirt of Tennessee, 1841.) Assignment of PF^e's Remainder or Reversion in Chdft^ls. — Survivofship. This is an appeal in ^rrOr from the Circuit Court of Smith County. Burton, iot the plaintiff in errorj cited, 2 Johiis. -Ch^ 208; 2 Story, 631; Clancy, 442; 2 Atk. 419; 10 Ves. 90; -2 Kent, 141; Claucjr, 137-39; 1 & 2 Law Lib. 141-43; 12 Ves. 437; 2 Atk. 550; 2 Cruise, 271; 5 Johns. Ch. 202; 8 Coweiij 590; 1 Yerg. 413; 10 Yerg. 190. Oafuihets, for the dgfcfiidant in error. Eeese, J. delivered the dpinion of the Coui^. This is an action of detihUe foi' slaves. The property in ques- tion was bequeathed by the laSt will and te&tament of Boling Felts, to his wife for life, and after hef death to Ann SulliVaQj the plaintiff in this sUit, then the wife of Williani Sullivan; and the said William was appointed exeioutor of the will. He duly took upon himself that Office, ahdj in 1819, purchased of Mary Pelts, testator's widow, the property iti question^ for the sum of one hundred dollars pet annUm, to be paid to her during her life* In 1830, Mary Felts acknowledged in writing her reception of a sum in gross, from William SuUivah, in satisfadtion of her an- nuity* Subsequently, in the same yeat, William Sullivan con- veyed the slaves^ for a valuable consideration, to Caplinger, th^ defendant, and put him in possession thereof, he himself having been possessed of them frdm the tirne Of his purchase in 1819. William Sullivan died in 1836; Mary Felts, the owner of the slaves for life, aiid Ann Sullivan^ the Wife Of Wiliamj to whom they were limited in. remaiuderj surviving. Mary Felts died lii 1838. These facts, in -the Circuit Court, were found by the jury in a special verdidt; atid judginent thereon was prOiiouneed by his honor the circuit judge in favor of Ann Sullivan, the plaintiff; and the defendant, Caplinger, has appealed in error to this Court. 268 COVERTUKE. Justice Story, in his Commentaries on Equity, paragraph 1413, states it as a principle, that "no assignment by the hus- band of reversionary choses in action, or other reversionary equit- able interests of the wife, even with her consent and joining in the assignment, will exclude her right of survivorship." The assignment, he adds, " is not, and cannot from the nature of the thing amount to, a reduction into possession of such reversionary interest. " The general principle thus laid down we find to be abundantly sustained by authority, and particularly by the lead- ing cases on the subject, Purdew v. Jackson, 1 Russ. 1, deter- mined by Sir Thomas Plumer, Master of the Rolls, and the case of Honner v. Morton, 3 Russ. 65, determined by Lord Chancellor Ltndhurst, 15th April, 1827. The point settled in the last case is, that, where husband and wife assign to a purchaser, for valu- able consideration, a share of an ascertained fund in which the wife has a vested interest in remainder, expectant on the death of a tenant for life, and both the wife and tenant for life outlive the husband, the wife is entitled by right of survivorship to claim the whole of the share of the fund against such particular assignee for valuable consideration. The Lord Chancellor refers to the principal cases relied on on either side, and particularly to the case before Sir Thomas Plumer; and concludes, after consider- ing the question in all its bearings, and the authorities and principles on the one side and on the other, that the judgment of the Master of the Rolls in Purdew v. Jackson was right, and that the husband, dying while the wife's interest continued re- versionary, had no power to make an assignment of property of this description which shall be valid against the wife surviving. But it is urged, on behalf of the defendant in this case, that the husband did not die while the wife's interest in the property continued reversionary; for it is said that the reversionary character of the interest was terminated by the purchase on the part of the husband from the tenant for life. But this we think is not so. For if after this purchase the husband had died without assignment, can it be doubted that the personal representative of the husband would have been entitled, during the existence of the tenant for life, to the property in ques- tion, and, after that, that the wife would have been entitled by survivorship ? The wife had no interest in the husband's purchase ; he stood CAPLINGER V. SULLIVAN. 269 in the place of tenant for life. The tenancy for life still con- tinued; and the reversionary interest, unaffected by such pur- chase, could not commence in possession till the life-estate terminated. The husband possessed the slaves; but he pos- sessed them as purchaser, not as husband, and his title and possession were of, and commensurate with, the life-estate, and that only. Here was no merger of estates. The life-estate be- longed to the husband solely and absolutely as purchaser ; the reversionary interest or remainder, to husband and wife, in right of the wife, and liable to become his absolutely by sur- vivorship. If the husband, having assigned, had continued to live till the lifetime estate had terminated, then, indeed, as a Court of Chancery views such assignment as an agreement to assign when in his power, and considers that also as done which ought to have been done, the assignee for a valuable considera- tion would, in equity, have been entitled to the property. We have been referred by defendant's counsel to the case of Pinckard v. Smith & Wife, Littell's Select Cases, 331, as bear- ing on this question. The Court in that case seemed to be of opinion that a vested remainder in a slave accruing to the wife during coverture, so far vested in the husband as that he would be entitled to recover the same without administration on the wife's estate. But they also state it as their opinion, that it does not so vest as to defeat the wife of her right by survivor- ship. The case, whether properly determined or not, can there- fore be no authority bearing upon the case at the bar. Upon the whole, we are of opinion that the Circuit Court pro- nounced the proper judgment upon the special verdict, and we therefore af&rm that judgment. 270 CpVERTUBE. Abeington V. Yapbrough. (1 Jones, Eq. 72. Supreme Court of North Carolina, 1853.) Redwtion of Wife^s ohoses in action by Assigmnent ; Survivorship,. Cause removed fropa the Court of equity, pf Franklin County at Pall Term, 1853. The bill was filed by the plaintiff, as the administrator of IVederick Battle, alleging that certain ques^ tions were rfiised between hi^ widov and her childiren and others claiming under them, that made it unsafe for him to distribute the estate. He alleges particularly th9,t the distributive share to which his daughter Mary Ann would be entitled, was claimed by James S. Yarbrgugh, by virtue of an assig^iment of her late husband, Tho,mas E. Yarbrough, who had given him notice of his claim, and warned ^im not to pay the same to Mary Ann, but demanded the same for himself. The bill also alleges that Thoma? E. YarjbrQugh, and his wife, Mary Ann, had been advanced in icertain slaves mentioned in the bill, in the lifetijne of the intestate ; and he prays the advice of the Courl;, and asks that the several parties may state their titles and interplead with ,^ch other, and litigate their opposing claims, to Jib? ejad that justice may be done to each, and the plaintiff saved ; harmless in distributing the estate of his intes^ tate, ,and jthat' aiU- account may be ta,ken of his administration. .James S. Yarbrough and William H. jBattle, administrator of Thomas E. Yarbrough ; Mary Ann Yai^brpughj widow of Thomas B. Yarbrough; Temperance Battle, the widow of Frederick Battle; and the rest of the children of Frederick Battle, — were made parties defendant. Subsequently to the commencement of the suit, Mary Ann Yarbrough intermarried with James C. Green, who was made a party defendant with his wife. The answer of James S. Yarbrough states specifically, and at large, the nature and consideration of the assignment made to him by Thomas E. Yarbrough, and insists that it was bona fide and for value. Mary Ann Yarbrough (now Green) admits the negroes put into possession of her former husband, Thomas E. Yarbrough, to have AEEINGTON 1». YA8BR0UGH. 271 been atoanceinents, and submits that the estate 'of ber father shall be allowed for the same,, out of her share; also, that she and her husband were furttier adya^iced in cash, horses, cattle, and other articles of personal property,, of which she states the value. She denies the equity of the claim set up by James S, yarbjrough, and says that it was either given as a security for a very small sum, or was obtained by fraud and imposition from her husband, or to act as a power of attorney ; and, as to that not reduced to possession by her husband in his lifetime, she elaians the same by survivorship, notwithstanding the assignment of her husband, Hxe ;said Thomas E, ■ The answer of W. H. Battle, the administrator of Thomas B. Yarbrough, claims the unrealized part of Mary Ann's distribu- tive share of her father's estate, in his representative character, and . insists that the assignment thereof was intended as a mere aul3hority to enable him to settle with the administrator of the fether-in-law. He alleges that the negroes put in the possession of Thomas B. Yarbrough and his wife, though intended at first as advancements, were subsequently divested of that character, by being conveyed by deed to the children of Thomas and' Mary Yarbrough (which deed is filed), and he insists that the distribu^ tion shall therefore take place, with such part su;bdueted from .the mass of Frederick Battle's .estate. The answej of Mrs. TempejEance Battle, the widow of Pred^ erick, explains this part of the transaction, and alleges it as intended to cover the proper.ty from the creditors of Thomas, and done at bis instance and that of his wife Mary Ann, and insists that these negroes shall be treated as .advancements, and accounted as part of .their distributive share. There was replication and commission, and much proof taken in the cause; but, as the view taken of the case renders the con- sideration of it unnecessary,, it is for that reason omitted. Moore, for plaintiff. Miller, Lanier, and Win^on, for defendants. Battle, J. It is now a well-established principle of equity, that, if a married woman became entitled during her coverture to a legacy, or to a distributive share of an intestate's estate, and her husband die j^rithout having reduced it into possession, or done anything equivalent thereto, the wife will be entitled to it, and may recover it to her own ;us.e. Garforth v. Bradley, 2 272 COVERTURE. Ves. Sen. 675; Carr v. Taylor, 10 Ves. Jr. 578; Schuyler v. Hoyle, 5 Johns. Ch. 196; Revel v. Revel, 2 Dev. & Bat. 272; Hardie v. Cotton, 1 Ired. Eq. 61 ; Poindexter v. Blackburn, id. 286; McBryde v. Choate, 2 Ired. Eq. 610; Rogers v. Bumpass, 4 Ired. Eq. 385 ; Weeks v. Weeks, 5 Ired. Eq. Ill ; Mardree v. Mar- dree, 9 Ired. 295. Should the legacy or distributive share not be paid or delivered over to the purchaser by the executor or admin- istratpr, he cannot recover it at law, either in his own name or in the names of himself and wife ; but must proceed, in the names of himself and wife, by a bill in equity, or by a petition in a Court of law in the nature of a bill in equity, under the fifth section of the 64th chapter of the Revised Statutes, entitled, "An Act concerning filial portions, legacies, and distributive shares of intestates' estates." If the husband die, leaving his wife surviving after bill or petition filed, but before decree, the legacy or distributive share will survive to the wife. Bond v. Simmons, 3 Atk. 21 ; Adams v. Lavender, 1 Mc. & Y. 41. Such, it seems, would be the result if the husband died even after a decree, but before it was put in execution. Nanny v. Martin, 1 Eq. Cas. Abr. 68 ; McAulay v. Philips, 4 Ves. Jr. 15. Notwith- standing the opinion of Lord Thuelow to the contrary ;*Heygate V. Annesley, 3 Bro. Ch. Cas. 862. These authorities clearly show, that, upon the death of Thomas E. Yarbrough, the first hus- band of the defendant, Mrs. Green, her distributive share in the estate of her deceased father, Frederick Battle, survived to her, unless her ^right to it was defeated by the assignment under which the defendant James S. Yarbrough claims it. A very important question arises, whether that assignment, supposing it to be bond fide and for a valuable consideration, did have that effect. We have considered the subject with much attention, and with an anxious desire to come to a correct con- clusion upon it, and an examination of all the cases to which we have access has satisfied us, that in England it is now settled, upon principle and authority, that a husband cannot assign, even for value, a greater interest in his wife's equitable choses in ac- tion than he has himself ; that is, the right to reduce them into possession during the husband's life, subject to the contingency of their surviving to her, should the assignee not have done so in the lifetime of the husband. , We are aware that an impres- sion has prevailed in this State that a different rule has been AEEINGTON V. YAEBEOUGH. 273 established here. We are aware, further, that the impression alluded to has apparently the sanction of several dicta of our judges; but, as neither the industry of the counsel for the as- signee, nor our own researches, have enabled us to find a single adjudicated case in opposition to the English rule, we feel our- selves not only at liberty but bound to adopt it, 'as being more just and better supported by principle than the one for which the counsel contends. In England, the nature and extent of the interest of the husband in his wife's equitable choses in action, and of his power of disposing of them, have for a long time occupied the attention of the Court of Chancery. At first, the subject did not seem to have been well understood even by the ablest equity judges, and hence we find among the earlier, and even among some of the later cases, conflicting dicta, as well as opposing decisions. We do not deem it necessary to review the cases in detail, be- cause it has been so recently and ably done by Mr. Bell, in his work on the Law of the Property of Husband and Wife, book 3, c. 2, § 3 (67 Law Lib. p. 62). The doctrine now established is well summed up by Mr. Adams, in his Doctrine of Equity, p. 142 : " It has been contended that a husband's assignment of his wife's choses in action should exclude the wife's right by survivorship, on the ground that such an assignment implies a contract to reduce the chose into possession, and is equivalent in equity to such a reduction. " This proposition was first overruled in respect to bankruptcy, and it was decided that whatever might be the right of pur- chasers for value, the assignees in bankruptcy were entitled to no such equity. It was next overruled as to all assignments, although for valuable consideration, if the chose were reversion- ary, and therefore incapable of present possession ; leaving the question still open whether, if it were capable of immediate pos- session, or became so during the covertijre, the wife should be excluded. "The principle is now extended to all cases, and it is held that, although the husband's contract for value may, as between himself and the assignee, be equivalent to a reduction into pos- session, yet, against the wife, who is no party to the contract, it cannot have that effect." For these positions, the author refers to several late cases, which we find, so far as we have the books 18 274 COTEETUEE. at hand to examine them, to be opposite to the purpose for which they are cited. It is worthy of remark, -too, that no cases to the contrary are referred to by the editors (Messrs. Ludlow and Collins) of the second American edition. Indeed, the learned editors have not subjoined any note to the page upon which these propositions are found. We come now to the examination of cases which are supposed to have established a contrary doctrine in this State, The first in the order of time is Knight v. Leak, 2 Dev. & Bat. 133. That was the case of a vested legal remainder in the wife in a slave, which the Court held might be sold by the sheriff under execution against the husband, because he had the right to sell it himself, and thereby completely to transfer it to the purchaser. In arguing, the Court said: We understand the effect of an assignment by the husband of his wife's equitable interest in a chattel in which she has not the right of immediate enjoyment to be different ; for such assignment would not preju- dice her right, should he die before her and before the period allotted for such enjoyment to take effect. Hornsby v. Lee, 2 Madd. 16 ; Purdew v. Jackson, 1 Russ. 1 ; Honner v. Morton, 3 Russ. 65. The next is Poindexter v. Blackburn, 1 Ired. Bq. 286. There a legacy was given to the wife, which had not been received by the husband nor disposed of by him in his lifetime; and the Court decided that, it survived to her, saying, " A legacy given to a married woman, or a distributive share falling to her during coverture, and not received by the husband nor disposed of by Mm in his lifetime, survives to the wife." Howell v. Howell, 3 Ired. Eq. 522, which came before the Court upon a bill for a writ of sequestration, was the case of a bequest of a female slave to one for life, remainder over to a married woman, and the executor assented to the legacy, and the husband afterwards sold the slave. The Court decided, as they had often done before, that the assent of the executor made the remainder a vested one ; and they then go on to show that " Jesse Spurling (the husband) had such an interest in the woman Jude and her children as enabled him to sell and convey them, and that his vendee ac- quired by his purchase, the transaction being freed from other objections, a complete title; and that Mrs. Spurling (the wife) had no interest in them, and consequently no claim to the aid of AEKINGTON V. YAKBEOUGH. 275 this Court. We are not unapprised that, in some recent cases in the English Courts of Chancery, this doctrine is denied as a principle of equity. Such, we consider, however, as the settled law of North Carolina. In Rogers v. Bumpass, 4 Ired. Bq. 385, the Court decided that, . where ^he husband gave his bonds to the administrator of the father of his wife, of whose estate she was a distributee, the bonds being given for certain purchases made at the administrator's sale, and also for money lent to him out of the funds of the estate, there being no agreement that these were to be regarded as payments of the distributive share of the , wife, the "Wife, after the death of her husband, was entitled to recover the whole of her distributive share. In coming to this conclusion, the Court said: "A debt, legacy, or distributive share of the wife is imder the control of ~the husband, so far as to enable him to release, assign, or receive them. His release extinguishes them, and the collection of the money vests it in him as his absolute property. But if, in his lifetime, he neither releases, conveys, or receives her choses in action, but leaves them outstanding, they belong to the surviving wife. " The case of Weeks v. Weeks, 5 Ired. Bq. Ill, was that of an expectant legal interest of the wife not assigned by the husband in his lifetime; and the Court said: "Although the husband may assign or release his wife's choses in action, or convey them during the coverture, they undoubtedly survive to her or her representative." In Mardree v. Mardree, 9 Ired. 295, the Court said : " A dis- tributive share accruing to the wife during the coverture does not vest in the husband, but will survive to the wife, unless re- ceived into possession by the husband." They held, however, upon the particular circumstances of the case, that the husband had reduced his wife's distributive share into possession, and consequently that it belonged to him. From this review of the cases to which our attention was called by the counsel, and some others which we met with our- selves, it manifestly appears that there' is not one in which it has been adjudicated, that the husband's assignee for value of his wife's equitable choses, can claim them against the surviving wife. Some of the expressions used by the Court, which we have quoted, may seem to imply that such was the opinion of the judge who decided them; but even as dicta they may well be , 276 COTEETUEE. regarded as enunciations of a general rule, without its being deemed necessary to advert to the exception to or modification of it. The cases mainly relied upon by the counsel to establish the position for which he contended, were Knight v. Leak and Howell V. Howell. In the first of these, the dictum shows only what we admit, that the assignment by the husband of his wife's equitable interest in a chattel will not prejudice her right, should he die before her and before the period allotted for such enjoyment to take effect ; but it does not pretend to go further, and say what would be the rule should the husband die before the wife, and after the period allotted for her enjoyment to take effect. The propositions are distinct, and have both been de- cided in favor of the wife in England, and we can see no good reason for holding here, that the admission of one of them in favor of the wife necessarily implies the rejection of the other. In the other case of Howell v. Howell, we do not know that we understand what the Court meant when they said : " We are not unapprised that, in some recent cases in the English Courts of Chancery, the doctrine is denied as a principle of equity." What doctrine ? and what was intended by the Court when they said, further, " Such, however, we consider as the settled law of North Carolina. " We certainly can find nothing in what pre- cedes or what follows these sentences to make out more than a mere conjectural dictum, that the doctrine for which we contend was disavowed. There are one or two other very recent cases which may seem to militate against the English principles to which we have referred; but which certainly are not adjudica- tions against it, and may, we think, be shown to be consistent with it. In Allen v. Allen, 6 Ired. Bq. 239, it was held that in this State a wife has no right, either as against her husband or his assignee for value, to have a provision made for her by a Court of equity out of a distributive share accruing to her during her coverture. And, further, that the husband is not at liberty to make a voluntary disposition of such distributive share, even in trust for his wife, so as to prevent it from being liable to his creditors. The first part of the decision, relating to what is called the wife's equity for a settlement, had been made before, in Bryan v. Bryan, 1 Dev. & Bat. Eq. 47, and Lassiter v. Daw- son, 2 Dev. Bq. 383. It is admitted to be in opposition to the rule well settled in the English Courts of Chancery, and adopted AEEINGTON V. YAKBROUGH. 277 by most of the States of this Union. The policy of our rule is very fully discussed and ably vindicated by the Chief Justice RuPFiN, who delivered the opinion of the Court in Allen v. Allen, and it is not now to be questioned. The doctrine for which we contend is not at all opposed by the latter proposition decided in that case, but is rendered in some degree necessary by the first. We do not deny that the husband, or assignee of the husband, in his lifetime, may reduce the wife's equitable choses in action into possession, and thus make them his own ; so may the cred- itors, and to that extent only goes the decision of which we are speaking, as well as the subsequent one in Barnes v. Pearson, 6 Ired. Eq. 482. The wife cannot resist* the attempt of her hus- band, his assignee for value, or his creditor, to get possession of the legacy or distributive share accruing to her during coverture, and thus deprive her of it. If the husband die, before he suc- ceeds, the wife's right survives to her. What good reason is there why the same result should not follow from his dying be- fore his assignee or his creditor had succeeded in his attempt ? Why should the husband be able to transfer to another a greater right or interest than he has himself ? We deprive by our rule the wife of her equity for a settlement; why go further, and deprive her also of her benefit of the right of survivorship in her own property ? It is by no means a consoling answer, to tell her that our law provides handsomely for her out of her hus- band's estate. That may do very well where the husband has anything- to leave, but is but mockery when he dies greatly in- debted or insolvent. Let us ponder for a moment and inquire, whether there is any fixed principle of equity which must of necessity operate so harshly against the right of the wife in such cases. In deciding Honner v. Morton, ubi supra, Lord Lyndhurst threw out a dictum, that equity considered the assignment of the husband as amounting to an agreement that he would reduce the property into possession ; it likewise considered what the party agreed to do as being actually done, and, therefore, when the husband had the power of reducing the property into possession, his assign- ment of the chose in action would be regarded as a reduction of it into possession. Principles of equity are, or ought to be, founded upon the most refined and exact principles of justice; they ought to be as near as human frailty will permit the very 278 COV^ETUEE. elements of justice itself. Now we cannot see any justice in the principle, that while the husband cannot himself acquire the wife's equitable choses in action without reducing them into pos- session, he may by a mere agreement in favor of an assignee for value produce such a result. We cannot see the justice, refined or otherwise, of the Court of equity not only assisting a purchaser to aid the husband in depriving his wife of her rights, but ac- tually resorting to a sort of magic to do it at once, instantane- ously, by a mere agreement to which the wife is no party. We are, therefore, not surprised to find that such a doctrine could not commend itself to the enlightened mind of Vice-Chancellor Chadwick, in the case of Ellison v. Elwin, 18 Sim. 309; of Yice-Chancellor Bruce, in that of Ashby v. Ashby, 1 C. M. 55; and of the judges in the other cases referred to by Mr. Adams. Our conclusion is, that the wife's right to her distributive share of an intestate's estate survives to her, if not reduced into pos- session by the husband or his assignee for value in his lifetime. It must therefore be declared in this case, that neither the de- fendant Yarbrough nor the defendant Battle, as the adminis- trators of Thomas E. Yarbrough, deceased, is entitled to the distributive share of the defendant, Mrs. Green, in her father's estate. The otily question which remains to be considered is, whether the slaves which were put into the possession of the first hus- band of Mrs. Green by her father, are, under the circumstances stated in the pleadings, to be charged against her as advance- ments. From the difficulty which might otherwise have attended this question, we are relieved by her fair and candid answer. She admits that they were intended by her father as advance- ments to her, and she submits that they may be charged against her by the administrator of her father in the distribution of his estate. The plaintiff is entitled to a decree to have an account taken of his administration of his intestate's estate under the direction of the Court, and that he may settle with the parties entitled to distributive shares in the same, upon the principles above set forth. The costs of the plaintiff will be paid out of the estate of the intestate. The other parties will pay their own costs. Decree accordingly. SHUTTLESWOETH V. NOTES. 279 Shuttles-worth v. Notes. (8 Mass. 229. Supreme Judicial Court of Massachusetts, 1811.) Wife's choses in action and Trustee Process for the Husband's Debts. In this case the only question made was, whether Downs should be adjudged the trustee of Noyes, the defendant. And as to this, the facts appearing from Downs's answer were, that he, after the marriage of Noyes with his wife Martha, now liv- ing, gave a note, not negotiable, payable to the said Martha at a future day, which had not arrived at the time of the answer by Downs. The consideration of the note was partly a debt due to the said Martha before her marriage, and partly a sum arising on the distribution of the estate of her deceased father. Sedgwick, J., said in substance, that the Court had a strong desire to protect this demand against attachments made by the creditors of the husband, if it could be done consistently with established principles of law ; but that it was very clear, that a note payable to a feme covert is legally payable to the husband, and the property vests absolutely in him. He alone, during his life, has power to enforce payment, or discharge the demand; and after his death it would go to his executor or administrator, and not to the wife. It was therefore the opinion of the Court, that this demand was well attached by this process, and that Downs must be adjudged to be the trustee of Noyes, the principal defendant. Dennison v. Nigh. (2 Watts, 90. Supreme Court of Pennsylvania, 1833.) Wife's choses in action and Attachment for her Husband's Debts. Error to the Common Pleas of Franklin County. This was geire facias upon a judgment on a foreign attach- ment, by James Dennison, against Samuel Nigh, garnishee of 280 COVEETUEE. ' John Lutshaw, in which the question arose whether a bequest to Mary, the wife of John Lutshaw, was the subject of a foreign attachment at the suit of his creditor. That part of the will of Andrew Dennison, the father of Mrs. Lutshaw, which made the bequest, was this : " I will and allow that the residue of my estate be equally divided between my sons, John, Andrew, William, James, Samuel, and Robert, and my daughters, Betsy, intermarried with James Sweney, Mary, intermarried with John Lutshaw, Rebecca, intermarried with Robert Johnston, Nancy, intermarried with Adam Johnston; and the heirs of Hugh Dennison to have one share; which I allow to be paid to them, share and share alike, as the moneys may be received out of my estate. " The testator then authorized his executors to sell all his estate, real and personal ; but left this discretionary with them. The Court below (Thompson, president) was of opinion that the bequest was not the subject of attachment, and therefore ren- dered a judgment for the defendant. ttunlop, for plaintiff in error, cited Serg. on Att. 86; Roll. Abr. 651 ; Whiteside v. Oakman, 1 Dall. 294 ; Barnes v. Treat, 7 Mass. 271; 1 Day's Cas. 436; 1 Conn. 383. Benny, contra, cited Morris v. Griffith, 1 Yeates, 192. Per Curiam. The decision of this case depends not on the abstract question whether a legacy may be attached, but on the nature of the interest in another respect. It is enough for the defence of the garnishee that the ownership is not in the defendant, but in his wife ; the interest bequeathed to her being a portion of her father's estate when turned into money. Though marriage is in effect a gift of the wife's personal estate in pos- session, it is said to be but a conditional gift of her chattels in action ; such as debts, contingent interests, money owing her on account of intestacy, or orphan's portions in the hands of the Chamberlain of London. 2 Vent. 341. Perhaps the husband has, in strictness, but a right to make them his own, by virtue of the wife's power over them, lodged by the marriage in his person. But, if these be not taken into his possession, or other- wise disposed of by him, they remain to the wife ; and if he des- tines them so to remain, who shall object ? Not his creditors, for they have no right to call on him to obtain the ownership of his wife's property for their benefit, especially as their debts EOBEETSON V. NOEEIS. 281 ■were not contracted on the credit of it ; and until he does obtain it, there is nothing in him but a naked power, which is not the subject of an attachment. The case put in 1 Rol. Abr. 551, of goods tortiously taken from the defendant in the attachment by the garnishee, comes entirely up to the principle. It was held that the goods could not be attached, because the defendant had but a right of action for the trespass. Without, then, deter- mining whether a legacy can be attached in any case, we deem it enough for the present question, that the husband had but a naked power over the subject of this bequest. Judgment affirmed. Robertson v. Noreis. (11 Ad. & E. N. 8. 916. Court of Queen's Bench, 1848.) Interest of Husband in Wife's Land. Covenant, by assignees of a lessor of land, against a lessee. The declaration stated that one Mary J. S. Davis had become seised of the reversion in fee, as devisee of lessor ; that she had intermarried with one Reymer ; and that thereupon Reymer and his wife, in right of his wife, became and were seised in their demesne as of fee of and in the said demised premises, expectant on the determination of the lease ; it then alleged that, by in- denture, &c., made between Reymer and his wife of the first part, Mary Davis, her mother, of the second part, and the plain- tiffs, of the third part, "Reymer granted, bargained, sold, and released unto the plaintiffs the said reversion of and in the said demised premises, to hold to the plaintiffs, their heirs and assigns," during the coverture. 2d plea. That "Reymer did not grant, bargain, sell, or release unto the plaintiffs the said reversion of and in the said demised premises," modo et formd. Issue thereon. On, the trial before Williams, J, at the Somersetshire spring assizes, 1847, it appeared that the indenture of release had not been exe- cuted by the wife, and that the husband, who had executed it. 282 COVEKTUEK, ■was not tenant by the curtesy. It was thereupon objected that her reversion had not passed to the plaintiffs, and that the above issue on their part was not proved. The learned judge overruled the objection. Verdict for plain- tiffs, with leave to move to enter a verdict for the defendant on this issue. Orowder^ in Easter term last, obtained a rule ni8% accord- ingly. In last Hilary vacation,^ Butt and Barstow showed cause. The husband took a free- hold interest during the joint lives of himself and his wife. This point is discussed in note (2) to Co. Litt. 326 a. " But, though by our law a woman does not now communicate her rank or titles of honor to her husband, yet the freehold, or the right of possession, of all her lands of inheritance vests in him imme- diately upon the marriage, the right of property still being pre- served to her. 1 Inst. 351 a, 273 b. And see Pothier, Traits des Fiefs, vol. i. p. 123. ^ This estate he may convey to another. An incorrect statement in the book called Cases in Equity, dur- ing the time of Lord Talbot, fol. 167,, of what was delivered by his lordship in the case of Robinson v Comyns, Cas. Eq. temp. Talbot, 164, 167, seems to have given rise to a notion that the husband could not make a tenant to the praecipe of his wife's estate, for the purpose of suffering a common recovery of it, without the wife's previously joining in a fine ; but it now seems to be a settled point that he can." Authorities ' to the same effect are collected in 1 Roper's Hus. & Wife, p. 3, 2d ed. The land might have been extended under an elegit against the hus- band (note (1) to tTnderh,ill v. Devereux, 2 Wms. Saund. 69 c, 6th ed. ) ; if he had become bankrupt, a freehold interest during the coverture would have passed to his assignees (Michell v. Hughes, 6 Bing. 689, 695, citing Com. Dig. tit. "Bankrupt," D. 11). Orowdef and Montague Smith, contra. By the argument for the plaintiffs, the wife is treated as altogether an unnecessary party to the deed of assignment. Yet the declaration of itself states, as was necessary, that husband and wife in right of the wife were seised ; and they must both have joined in an action for breach of covenant. 1 Bac. Abr. 729, 7th ed. tit. " Baron & 1 February 11th. Before Lord Dbn- « See (Euvres Posthumes, tome i. MAN, C. J. ; Patteson, Coleridge, p. 50 (ed. 1777), Part 1, o. 2, art. 2. and WiGHTMAN, JJ. EOBEETSON V. NOERIS. 233 Feme, " K. If the husband had the freehold, it could not be in the -wife in case of his attaint. Yet it is said in Co. Litt. 351 a : " It appeareth here by Littleton, that if a man taketh to wife a woman seised in fee, he gaineth by the intermarriage an estate of freehold in her right, which estate is sufficient to work a re- mitter, and yet the estate which the husband gaineth dependeth upon uncertainty, and consisteth in privity; for if the wife be atteiiined of felony, the lord by escheat shall enter and put out the husband ; otherwise it is if the felony be committed after issue had. Also, if the husband be attained of felony, the king gaineth no freehold, but a pernancy of the profits during the coverture, and the freehold remaineth in the wife. " The note to Co. Litt. 326 a, cited for the plaintiffs, stating that the wife's freehold vests in the husband on marriage, is correct ; but the freehold vests in the wife also ; it vests in both in right of thei wife. " In a real estate, he " [the husband] " only gains a title to the rents and profits during coverture; for that, depending upon feudal principles, remains entire to the wife after the death of her husband, or to her heirs if she dies before him ; unless, by the birth of a child, he becomes tenant for life by the cur- tesy." 2 Bl. Com. 433. Our. adv. vult. Lord Denman, C. J., in this term (May 1st) delivered the judgment of the Court. A question arose in this case as to the interest which a hus- band takes in lands which belong to his wife in fee-simple, and as to his power to convey to another person an interest in those lands for the joint lives of himself and wife. It is laid down in Co. Litt. 351 a, that he is entitled to the pernancy of the profits, and that, if he be attainted, that per- nancy will pass to the crown, the freehold still remaining in his wife. But it is also laid down in Co. Litt. 326 a, and in the notes, that he may make a tenant to the praecipe of his wife's land, and that he has an estate which he may convey to another. He has not, however, any greater interest than during the joint lives of himself and his wife. Now the second issue raised by the pleadings in this case, which was an action of covenant on a lease made by a person who had afterwards devised to the wife, was, whether the hus- band did by indenture convey to the plaintiffs the reversion of which he and his wife were seised in tight of the wife, to hold 284 COVEKTUEE. to the plaintiffs during the coverture of the wife with the hus- band. This he certainly did. The indenture professed to be made by him and his wife, but was not executed by her ; and it passed no more than his interest. That was an estate during the joint lives of himself and his wife, which was all that he professed to convey by the terms of the deed. The rule to enter a verdict for the defendant on that issue must be discharged. Hule discharged. Back v. Andeew. (2 Vem. 120, s. c. Pre. Ch. (Finch's) 1; 2 Eq. Cas. Abr. 230. High Court of Chancery, 1690.) Estates by Entireties : Husband powerless to alien. PuECHASE made of a copyhold estate by John Andrew, the husband ; and the surrender taken to John Andrew and his wife, and Elizabeth, his daughter, and their heirs. The said John Andrew, as being visible owner of the estate, takes upon him to make a conditional surrender, by way of mortgage, to the plain- tiff, and afterwards dies; the plaintiff's bill was against the mother and daughter, to discover their title, and to set aside their estates as fraudulent against the plaintiff, who was a pur- chaser ; sed non allocat'. Bill dismissed, but without costs ; for, per Cur., the husband and wife take one moiety by entireties, so that the husband cannof alien nor dispose of it so as to bind the wife, and the other moiety is well vested in the daughter. Geben on the demise of Crew v. King. (2 W. Bl. 1211. Court of Common Pleas, 1778.) Estates by Entireties : Husband powerless to alien or devise. Ejectment in Middlesex, tried before De Geet, C. J. Ver- dict for the plaintiff, subject to this special case. The premises were copyhold, parcel of the manor of" Ashford, and wer§ sur- CEEW V. KING. 285 rendered, in 1734, by John Beauchamp, "to the use of John Fitzwalter and Elizabeth, hia wife, and the longer liver of them ; and, after the death of the longer liver of them, to the right heirs of the said John and Elizabeth forever." And they were ad- mitted accordingly. On the 4th of September, 1769, John Fitzwalter, having pur- chased other copyhold estates in the said manor, made a general surrender of all his copyhold estates to the uses of his will ; and, on the 23d of June, 1770, made his will, by which (after devis- ing all his freehold and copyhold estates to his wife for life, and after her decease, a certain estate not now in question to Thomas Merrick, in fee) he gives " all the rest, residue, and remainder of his real estate, both freehold and copyhold, to Joseph King, to hold to him and to his heirs and assigns forever." John Fitzwalter died in April, 1771, and Elizabeth, his wife, survived him ; but neither of them had issue of their bodies. After his death, she surrendered her estates in the said manor to the uses of her will ; and, on the 4th of March, 1772, devised her copy- hold estate in Ashford to Thomas Crew, his heirs and assigns forever, and died on the 4th of March, 1773. Qu. If Thomas Crew, the lessor of the plaintiff,, is entitled to recover. Sill, for the plaintiff, insisted that there are only two possi- ble constructions that can be made of the surrender in 1734. 1. That the husband and wife were tenants for life, with a con- tingent remainder to the survivor in fee. If so, the husband, being tenant for life of a copyhold, could not bar this contingent remainder (Roll. Abr. tit. " Uses"), and therefore it survived to the wife. 2. Which is the true construction, that they were joint-tenants of the fee ; and, if so, being husband and wife, they took by en- tireties, and not by moieties; so that it is clear the husband could not dispose of it. Grose, for the defendant, argued that the intent of the sur- render must govern, which, he said, was plainly to provide for the husband and wife, and their issue, without power for either to alien. That the best way to effectuate this intent was to con- strue them joint-tenants for life, with contingent remainders to their issue, in tail or in fee. The most that the husband and wife can take is an estate tail, and then the wife had nothing to 286 COVEKT0BE. devise. In Beresford's case, 7 Co. 41, the Court supplied the t^ords, " of their bodies, " after the general word, " heirs. " And in Frogmorton v. Wharrey, M., 11 Geo, III. C. B., an estate to A., and the heirs of the body of A. and B., was held an estate for life to A., with a contingent remainder to the issue. And as that contingency has now failed in the present case, the re- version which remained in the vendor must take place. Or, take it to be an estate tail in both, the reversion in fee still rested in the surrenderor, and must now, on failure of the estate tail, take effect. And, upon an ejectment, it is sufficient for the defendant to show a title out of the lessor of the plaintiff. Db Geet, C. J., stopped Sill in his reply, saying that though the case was a little out of the common road, there was no great difficulty in it. The question is not on a will or a marriage settlement, so as to require us to desert the legal operation of the words, in order to effectuate a supposed intention to the con- trary. It is on a purchase made by the husband after marriage, which must have exactly the same construction as a voluntary settlement by _ deed. Nothing can be collected but from the words of the surrender itself. The wife is not bound by it, but might disagree to it after the death of her husband ; but, it being for her benefit, her consent is therefore presumed. The word " heirs " must be taken in its legal sense as a word of limitation, as there is no proof that it was meant as a word of purchase. Taking, then, the case in this light, it falls exactly within a nice distinction laid down in our ancient books, and which, having never been overruled, continues law at this day. The same words of conveyance which would make two other persons joint-tenants, will make a husband and wife tenants of the entirety; so neither can sever the jointure, but the whole must accrue to the survivor. What is laid down in Litt. sect. 525, and Co. Litt. 299 b, will govern this case. And, indeed, could the husband have severed the jointure and disposed of the wife's property, his devise would not effect it; for the suvivor- , ship or jus aecrescendi accrues per mortem; the right of the devisee is post mortem. I, therefore, think the plaintiff must recover. Gould, J., absent. Blackstone, J. The transaction of 1734 being a purchase for valuable consideration, there is no ground to surmise that any CBKW V. KINa. 287 estate or interest was left in the vendor; and, indeed, he has conveyed by the words of his surrender as complete a fee-simple, " to John and Elizabeth and their right heirs forever, " as words can possibly create. T entirely agree with Lord Chief Justice as to the law of this case, which, though ancient, has been recognized in Purefoy and Rogers, 2 Lev. 89 ;' and Back and Andrews, 2 Vern. 120, is a case directly in point, and upon a copyhold surrender also. This estate differs from joint tenancy, because joint-tenants take by moieties, and are each seised of an undivided moiety of the whole, per my and per tout, which draws after it the incident of survivorship or jus aocrescendi, unless either party chooses in his lifetime to sever the jointure. But, husband and wife being considered in law as one person, they cannot during the cover- ture take separate estates ; and, therefore, upon a purchase made by them both, they cannot be seised by moieties, but both and each has the entirety. They are seised per tout, and not per my. The husband, therefore, cannot alien or devise that estate, the whole of which belongs to his wife as well as himself. But had they been joint-tenants, while sole, and afterwards inter- married, they still would remain seised of their respective moie- ties, and the husband might sever the jointure and alien his own moiety. Bro. Abr. Gui in vita, 8. This is on supposition that the surrender of 1734 operated as a grant of an immediate estate to both John and Elizabeth, in fee, which I hold to be its true operation. But, even supposing it a grant to the husband and wife for their lives, with a contingent remainder to the survivor in fee, the effect would be just the same. For both being seised of the entirety for their joint lives, the husband could not by any alienation destroy the particular estate so as to bar the contingent remainder ; and then, upon his death, she (as survivor) became immediately seised in her own right of the remainder in fee-simple. So that qudcunque vid datd, her devisee must recover. Nabes, J., of the same opinion, Poitea to the •plaintiff. 288 COVEETUKE. Mabston v. Norton. (5 N. H. 205. Superior Court of Judicature of New Hampshire, 1839.) Wills of Femes Covert. This was an appeal from a decree of the judge of probate in this county, made on the 11th June, 1728, allowing and approv- ing, in solemn form, a certain instrument as the last will and testament of Esther Norton. It was agreed by the parties that the said instrument, which purported to contain a devise by the said Esther of all her real estate to W. Norton, her husband, for life, and,, after the decease of her husband, to John Norton in fee, and to appoint John Norton executor, was duly made, exe- cuted, witnessed, and published by the said Esther, as her last will and testament ; that, at the time of making and publishing the same, the said Esther was of sound mind, and was the wife of the s?iid W. Norton ; and at the time the said instrument was executed, and in presence of the same witnesses, the said W. Norton made, signed, and sealed a memorandum under the said instrument as follows : " I, the said William Norton, husband of .the said Esther Norton, do consent and agree that my wife, I Esther Norton, should dispose of her real estate according to ^the above will." Thomas Marston, the appellant, is one of the heii-s at law of the said Esther. The reason assigned for this appeal was, that the said Esther was, at the time of executing and publishing said instrument, a feme covert and the question was, whether the decree must be reversed for that cause ? Tilton, for the appellant [cited Osgood v. Breed, 12 Mass. 525 ; Lovelass, 144 ; Godol. Orphan's Legacy, 29 ; Sheppard's T. 402; Dublin v. Chadbourne, 16 Mass. 433; 12 Mass. 531; 1 Pick. 649]. Mason, Jr., for the appellee [cited 1 Reeves's Hist. 11, 111; 8 Turner's Hist. Anglo-Sax. 73; Beame's Glanville, 140; Glanville, 163 ; Bracton, 60 ; 1 Bro. Civil Law, 298 ; 4 Reeves's MAESTON V. NORTON. 289 Hist. 68; 4 Burn's Eccl. Law, 47, 59; 1 Sander's Uses, 80; Com. Dig. Devise, G. and H. ; Rolle'a Ab. 608; Gilb. Dev. 13; 4 Mason, 489]. Richardson, C. J. The question in this case is whether a^ married woman can, with the consent of her husband, dispose" of her real estate by a will ? In ancient times, no lands or tenements were by the common law of England devisable by the last will of any person, except in particular places by custom. Coke, Litt. Ill b, and note 1 ; Litt. sec. 167 ; Wright's Tenures, 171-173; 6 Coke, 17, Wild's case; Cowper, 305. And by the common law as it was understood in the reign of Henry II., a man's goods were not wholly at his own disposal by will; but his wife and children had an interest in them, of which he could not deprive them by a will. The shares of the wife and children were called their rationahilis pars, and the writ de rationahili parte bonorum was given to enforce the claim. 2 Bl. Com. 491; Fitzh. N. B. 284 Coke, Litt. 176 h. It seems to have been settled in very ancient times that a married woman might, with the assent of her husband, dispose of her chattels by will. Bracton, 60; Moore, 339, Pinch v. Finch ; Cro. Car. 106, Johns v. Rowe ; Lovelass, 143-146. But, by the co mmon law, a feme covert never could make a valid de-^ vise of land, with or without her husband's consent, to any per- son whatever. Godol. 301; Shep. T. 402; Com. Dig. Devise, H. 3; Lovelass, 96; 3 Johns. Ch. 523,*Bradish v. Gibbs; 4 Mason, 443, Picquet v. Swan. She was considered to be so entirely under the power of the husband that she could in no case make what in propriety of speech is called a will. 4 Burn's Eccl. Laws, 49; Powell on Devises, 97. By the statute of 32 H. VIII. c. 1, it was enacted, " that all and every person and persons having a _sole estate or interest in fee-simple, or seised^ in fee-simple, in coparcenary, or in common of any manors,/^ lands, &c., shall have power to give, dispose, , will, and devise, by will, in writing or otherwise, by act executed in his lifetime, all his said manors," &c. The language of this statute was broad enough to include all persons. But it seems to have been thought by the Courts of common law that, upon the construction of statutes, not the mere letter, but the internal meaning and sense of the legislature, was to be considered ; and, although this statute gave power to every 19 290 COVEETUEE. person having land to devise it, yet it was thought that it could not have been the intention of the makers of insanity ; that, as between the present parties, this action could not be maintained for one of several parcels described in the deed, and remaining in the possession of the tenant; and that the demandant, to maintain his action, should return the note and the money received." The judge instructed the jury, that, if they were satisfied that the demandant was not of sane mind when he made the deed, it was void absolutely, and not voidable merely, and that thc' re- ceipt of money on the note would not bar an action, though the demandant was sane at the time he received it ; that it was not necessary for him to return the note or money received, under the circumstances of this suit ; and that the demandant was not ALLIS V. BILLINGS. 315 obliged to demand in this action all the parcels in the possession of the tenant and unsold. The jury found that the deed was made when the demandant was insane, and they did not consider the allegation of fraud. New trial to be granted, if the ruling of the judge was incor- rect ; otherwise, judgment to be rendered for the demandant, on the verdict. Huntington, for the tenant. Wells and Forbes, for the demandant. Dewey, J. The question raised in the present case is, whether the deed of one who is insane, at the time of the execu- tion thereof, is void absolutely, or merely voidable. The term "void," as applicable to conveyances or other agree- ments, has not at all times been used with technical precision, nor restricted to its peculiar and limited sense as contradistin- guished from "voidable," it being frequently introduced, even by legal writers and jurists, where the purpose is nothing fur- ther than to indicate that a contract was invalid, and not bind- ing in law. But the distinption between the terms " void " and "voidable," in their application to contracts, is often one of great practical importance ; and whenever entire technical accu- racy is required, the term " void " can only be properly applied to those contracts that are of no effect whatsoever; such as are a mere nullity, and incapable of confirmation or ratification. This question, then, arises : Is the deed of a person non compos mentis of such a character that it is incapable of confirmation ?. This point is not now for the first timfe raised, but has been the subject of comment both by elementary writers and in judicial, opinions. Mr. Justice Blackstonb, in his Commentaries, vol. ii. p. 291, states the doctrine thus : " Idiots, and persons of non- sane memory, infants and persons under duress, are not totallyi disabled to convey or purchase, but sub modo only, for their, conveyances and purchases are voidable, but not actually void. " Chancellor Kent says: "By the common law, a deed made by a person non compos mentis is voidable only, and not void." 2 Kent, Com. 4th ed. 451. In Wait v. Maxwell, 5 Pick. 217, this Court adopted the same principle, and directly ruled that the deed of a non compos, not under guardianship, was not void, but voidable. Such a deed conveys a seisin to the grantee, and the deed, to that extent, is valid, until, by entry or action, the 316 IDIOCY, LUNACY, ETC. same is avoided. Mitchell v. Kingman, 5 Pick. 431, is to the like effect. In Seaver v. Phelps, 11 Pick. 305, the contracts of insane persons are noticed as contracts not absolutely void, but' voidable. It may seem somewhat absurd to hold that a deed should have any effect when wanting in one of the essential elements of a valid contract; viz., that of parties capable of giving an assent to such a contract. But this objection as strongly applies to cases of deeds executed by infants, who are alike wanting in capacity to make a binding contract. Yet this principle of giv- ing so much effect to the contract as removes it beypnd that of a mere nullity, and renders it to some present purposes effectual and susceptible of complete future ratification, is well settled and understood as to infants who enter into contracts; and it will be found that there is a common principle on this subject, alike applicable to the inability of a contracting party, arising from lunacy or infancy. The civil and the common law writers group together idiots, madmen, and infants, as parties incapable of contracting for want of a rational and deliberative consenting mind. 1 Story on Eq. § 223, and authorities there cited. It is true that the rule of the common law, as held at one time, seemed to sanction, in one particular, a most unwarranta- ble distinction between the cases of deeds made by persons non compos, and those made by infants; holding that the former could not be avoided by the party, upon the ground that no man of full age should be admitted to stultify himself, although it allowed privies in b'lood, or privies in representation after the death of the non compos, to avoid the deed, on the ground of incapacity in the grantor. This distinction has not been adopted by our Courts. On the contrary, we hold that such conveyance by one non compos mentis may be avoided by himself, as in the case of an infant grantor. This principle was directly recog- nized in Mitchell v. Kingman, 5 Pick. 431. Indeed, the English rule has, in modern times, been often questioned in England ; and in the Courts of our sister States, it has received little if any sanction. 1 Story on Eq. § 225, and cases there cited. It was urged by the demandant's counsel that the doctrine, that the deed of a non compos person was voidable only and not void, was to be limited to feoffments or cases where there is a livery of seisin or what is equivalent, and would not embrace a ALLIS V. BILLINGS. 317 conveyance by an unrecorded deed. But we do not think that such a distinction can be maintained. As between the grantor and grantee, such unrecorded deed is good and effectual, by force of our statute ; and the effect of such a conveyance would be to vest the title of the grantor in the grantee immediately upon the execution of the deed, and before the same is recorded. Marshall v. Fisk, 6 Mass. 31. A deed made in proper form, and duly acknowledged and recorded, is, in this commonwealth, equivalent to a feoffment with livery of seisin. Somes v. Brewer, 2 Pick. 197. Without the registry, where the delivery of the deed is accompanied by the surrender of the possession of the conveyed premises to the grantee, the effect would be the same, as to the conveyance by a non compos, as would result from a feoffment made by him. A deed of bargain and sale, it is said, places the grantee upon the footing of a feoffment, as it passes the estate by the delivery of the hand ; such grants or deeds as take effect by delivery of the hand being voidable only. Somes V. Brewer, 2 Pick. 197"; Zouch v. Parsons, 3 Burr. 1804 [^ante, p. 3]. We come, therefore, to the result that the deeds of infants and insane persons are alike voidable, but neither are absolutely void. Upon the trial of the present action, the plaintiff put his case upon two distinct grounds : 1st. That he was insane at the time he executed the deed under which the tenant derives his title ; 2d. That the deed was obtained by undue influence and fraud on the part of the tenant. Upon both these points the plaintiff introduced evidence. What was the extent of the evidence upon the latter ground, and what would have been the finding of the jury upon that point, we have no means of judging. This was a distinct and independent' ground, and one which, if found in favor of the demandant, might have been decisive of the case, but which, in the final disposition of the cause, was not consid- ered or passed upon by the jury. All the evidence, therefore, bearing upon this point, is now to be treated as if never offered, and the sole inquiry for our con- sideration is, whether the instructions of the Court were such, in matter of law, that the verdict may be maintained, taken as it was upon the first ground solely. The presiding judge ruled, as a matter of law, that a deed of an insane person was abso- lutely void. Under this ruling, all that was required of the 318 ' IDIOCY, LUNACY, ETC. demandant to entitle himself to a verdict in his favor, was to show a temporary insanity at the time of the execution of the deed. No matter what might have occurred subsequently, or how soon afterwards the demandant might have beeh restored to a sound mind ; no matter what acts of confirmation may have been done by him, or however fully he may have adopted and ratified the transaction, by the receipt of the money or other valuable consideration paid for the land ; still the legal title to the land would be in him. This was the necessary result of the doctrine, that the deed of a non compos was absolutely void, while, if it had been held only voidable, these subsequent acts of the party might materially affect the verdict of the jury. But adopting, as we do, the principle that the deed of an insane per- son is only voidable, this, while it gives the insane grantor full power and authority to avoid his deed, and thus furnishes full protection to him against all acts injurious to his interests, done while he was non compos, also entitles the other party to set up the deed, if he can show a ratification or adoption of it by the grantor, after he is restored to a sound mind. If the grantor, when thus capable of acting, and with full knowledge of his previous acts, and of the nature and extent of them,, will delib- erately adopt and ratify them ; if he will knowingly, and in the exercise of his proper faculties, take the benefit of a contract made while he was insane, — it is competent for him to do so. But the consequence will be, to give force, effect, and legal validity to his contract, which was before voidable. In the present case, therefore, upon the point first relied upon in the defence, viz., that the demandant was insa.ne when he executed the deed, the jury should have been instructed that this fact, if established, rendered the deed voidable, and that it was competent for the demandant to avoid it on that ground, if not estopped by his subsequent acts, done whilst in his right mind; but that a voidable deed was capable of confirmation; and that, if the grantor, in his lucid intervals, or after a general restoration to sanity, being then of sound mind, and well know- ing and understanding the r\ature of the contract, ratified it, adopted it as a valid contract, and participated in the benefits of it by receiving from the purchaser the purchase-money due on the contract, this would give effect to the deed, and render the same valid in the hands of the grantee, and would thus become THOMPSON V. LEECH. 319 effectual to pass the lands, and diyest the title of the grantor. Such instructions would have presented the question in issue in a different aspect to the jury, and might have led to a different result upon the only point upon which they passed. Verdict set aside, and a new trial granted. "^iC-Xy^ A^^.^ -I—- f.-^^~yS^ Thompson v. \i^^ law to relieve him from a position into which his own indiscretion or want of dili- gence has led him. Certainly it would lead to disastrous conse- 28 434 SUPPLEMENT. quences if a woman who had once fallen from virtue could not be permitted to represent herself as continent, and thus restore herself to the rights and privileges of her sex, and enter into matrimony without incurring the risk of being put away by her husband on discovery of her previous immorality. Such a doc- trine is inconsistent with reason and a wise and sound policy. Bish. Mar. and Div. § 105 ; Scroggins v. Scroggins, 3 Dev. 535, 544 ; 1 Eraser's Dom. Rel. 231 ; Graves v. Graves, 3 Curteis, 235 ; Best v. Best, 1 Addams, 411. But a very different question arises where, as in the case at bar, a marriage is contracted and consummated on the faith of a representation that the woman is chaste and virtuous, and it is afterwards ascertained, not only that this statement was false, but that she was at the time of making it and when she entered into the marriage relation pregnant with child by a man other than her husband. The material distinction between such case and a misrepresentation as to the previous chastity of a woman is obvious and palpable. The latter relates only to her conduct and character prior to the contract, while the former touches directly her actual present condition and her fitness to execute the marriage contract and take on herself the duties of a chaste and faithful wife. It is not going too far to say, that a woman who has not only submitted to the embraces of another man, but who also bears in her womb the fruit of such illicit inter- course, has during the period of her gestation incapacitated her- self from making and executing a valid contract of marriage with a man who takes her as his wife in ignorance of her con- dition and on the faith of representations that she is chaste and virtuous. In such a case, the concealment and false statement go directly to the essentials of the marriage contract, and operate as a fraud of the gravest character on him with whom she enters into that relation. As has been already stated, one of the leading and most important objects of the institution of marriage under our laws is the procreation of children, who shall with certainty be known by their parents as the pure offspring of their union. A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. Therefore a woman who is incapable of bearing a child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable EEYNOLD^ V. KEYNOLDS. 435 to perform an important part of the contract into which she enters ; and any representation which leads to the belief that she is in a marriageable condition is a false statement of a fact material to this contract, and on well settled principles affords good ground for setting it aside and declaring the marriage void. This conclusion is strengthened by a consideration of the con- sequences which might result from a different doctrine. The rule of the common law is, that, if a man marry a woman who is with child, it raises a presumption that the child with which she is pregnant was begotten by him. This presumption is founded on the supposed acknowledgment of paternity by the subsequent act of marriage, and although such presumption is liable to be rebutted, yet in the absence of proof it stands. Hemmenway v. Towner, 1 Allen, 209 ; Phillips v. Allen, 2 Allen, 453. A man, therefore, who has contracted a marriage with a woman under such circumstances, if he could not obtain a divorce on the ground of fraud, would be subjected to the pain- ful alternative of disowning the child, and thereby publishing to the world the shame of her who was still to remain his wife, or suffer the presumption of legitimacy to stand, and admit the child of another to share in his bounty and receive support in like manner as his own legitimate children. There is no sound rule of law or consideration of policy which requires that a marriage procured by false statements or representations, and attended with such results upon an innocent party, should be held valid and binding on him. An enforced union under sucii circumstances would not tend to promote morality or give dig- nity or sanctity to the institution of marriage. On the contrary, it would tend to bring it into contempt, by compelling parties to continue in the relation of husband and wife after the basis of confidence and harmony has been taken away by the destruction of mutual respect and affection. It is not to be overlooked, in the consideration of the question whether ante-nuptial pregnancy should constitute a sufficient ground of divorce, where it is unknown and kept concealed from the husband, and the marriage is contracted on the faith that the woman is chaste and virtuous, that the existence of the fact cannot be ascertained before marriage by any of the ordi- nary means of personal intercourse, or by careful and diligent inquiry. Nor would it be known after marriage in the earlier 436 SUPPLEMENT. stages of gestation, nor even at a later period, where, as in the case at bar, the husband was immature and inexperienced. Such a case does not come within the principle which requires persons to act with caution, and after due inquiry concerning the personal qualities and character of those with whom they intend to contract marriage. We do not mean to be understood as saying that pregnancy in a woman before marriage is a valid ground of divorce, where the husband, after having good reason to know the fact, con- tinues his cohabitation and takes no immediate steps to repu- diate his wife. Nor do we express any opinion concerning another class of cases which have arisen, where the pregnancy of the woman has been known to the husband, and he has been induced to enter into the contract of marriage by false represen- tations that he was the father of the unborn child. We confine our judgment to the precise case stated in the libel. Assuming the facts therein stated to be true, and that, on discovery of the fraud, the husband left the wife and took immediate steps to annul the marriage, we think he shows a sufficient ground to ask for a sentence of nullity of marriage. See Morris v. Morris, Wright, (Ohio,) 630 ; Ritter v. Ritter, 5 Blackf. 81 ; Scott v. Shufeldt, 5 Paige, 43 ; Baker v. Baker, 13 California, 87. Demurrer overruled. '^■^'^"H^ /WiNSMORE V. GeEENBANK. (Willes, 577. Court of Common Pleas, 1745. IIusban(Vs Action for Enticement of Wife. Skinner, Willes, and Hayward, Serjeants, moved for a new trial upon several affidavits, setting forth (as they were opened) -that the verdict was against evidence and the damages excessive, being 3,000Z. The action was an action on the case for enticing away and detaining the plaintiff's wife, which were laid in the declaration with several other particular circumstances ; but my brother Abney who tried the cause, being in court and certifying that the verdict was not against evidence nor the damages excessive, and that WINSMOKE V. GEEENBANK. 437 he was not dissatisfied with it, we would not make any rule, nor did we suffer the affidavits to be read. Hayward, likewise, mentioned another objection, that the judge would not allow the declarations of the wife to be given in evidence on either side ; but the two senior counsel would not insist on that objection, and my brother Burnett and I were of opinion that my brother Abney did right in refusing to admit such evidence. They then moved in arrest of judgment. In order to understand the grounds of the motion in arrest of judgment, it is necessary to state some parts of the record. The declaration contained four counts. The first stated that on the 1st of January 1741, Mary, then and until the 24th of December, 1742, being the wife of the plaintiff, (but since de- ceased,) unlawfully and without his leave and against his consent departed and went away from him, etc., and lived and continued absent and apart fronr him from thence until and upon the 8th of August, 1742, and during the said time that the said Mary so lived and continued absent a large estate both real and personal, to the value of 30,000?., was devised to her by W. Worth, D. D., her late father, for her sole and separate use and at her sole and separate disposal ; that thereupon she was desirous of being and intended to be again reconciled to the plaintiff, and to live and cohabit with him, whereby he would have had and received the benefit and advantage of the said real and personal estate (the plaintiff being willing and desirous to be reconciled, etc.); yet the defendant, knowing the said premises and having notice of the said Mary's intention, but contriving to injure the plain- tiff and to prevent Mary the wife from being reconciled to him, etc., and to prevent the plaintiff receiving any advantage from the said real and personal estate, etc., on the 8th of August, 1742, unlawfully and unjustly persuaded, procured, and enticed the said Mary to continue absent and apart from the plaintiff, and to secrete, hide, and conceal herself from the plaintiff, by means of which persuasion, procuration, and enticement the said Mary from the said 8th of August, 1742, until the time of her death on the 24th of December, 1742, continued absent and apart and secreted herself, etc., whereby the plaintiff during all that time totally lost the comfort and society of his said wife and her aid and assistance in his domestic affairs, and the profit and advantage that he would 438 SUPPLEMENT. and ought to have had of and from the said real and personal estates, etc., and was put to great charges and expenses in en- deavoring to find out and gain access to his said wife, in order to persuade and procure her to be reconciled to him. The second count stated that on the 7th of August, 1742, Dr. Worth died, on whose death the plaintiff's wife became seized and possessed of real and personal estates to the value of 3O,000Z. to her sole and separate use and at her sole and separate disposal ; yet the defendant, maliciously and wickedly intending to injure the plaintiff and to deprive him of the said aid, assistance, and comfort of his wife, and to raise, foment, and continue discords and quarrels between the plaintiff and his wife, and to alienate the affections of the wife from the plaintiff and to deprive the plaintiff from having or receiving any advantage or benefit from the said estates, etc., on the 8th of August, 1742, unlawfully and unjustly persuaded, procured, and enticed the said wife to depart and absent herself from the plaintiff and to secrete her- self from him, by means of which persuasion, J)rocuration,, and enticement the said Mary on the said 8th of August departed and absented herself from the plaintiff without the plaintiff's consent, and continued absent until her death, etc., whereby the plaintiff, etc. (as in the first count). The third count stated that on the 8th of August, 1742, the plain- tiff's wife, without and against his consent, went away from him and , went to the defendant ; yet the defendant, well knowing the said Mary to be the wife of the plaintiff, received her, and concealed her from the plaintiff and kept her so concealed from him until the time of her death, and wholly refused to deliver her to the plaintiff or to discover her place of residence (although on, etc., at, etc., he was requested, etc.), but unlawfully entertained, harbored, con- cealed, and secreted her from the plaintiff from the 8th of Au- gust, 1742, until the time of her death, whereby the plaintiff, etc. (as before, only omitting that the plaintiff was deprived of the benefit of her fortune, etc.). The fourth count stated that the defendant harbored and con- cealed the plaintiff's wife until her death, and also caused her to be buried secretly and kept her death a secret from the plaintiff for a year after her death, etc., whereby the plaintiff lost the com- fort and society of his wife from the said 8th of August until the time of her death, and the benefit of her fortune, etc. WmSMOKE V. GEEENBANK. 439 The defendant pleaded not guilty, and the jury found a verdict for the plaintiff on the first three counts, and gave 3,000Z. dam- ages, and a verdict for the defendant on the last. This case was argued on the 18th and 26th of November, 1745, and the 29th of January following, by Skinner and Willes, King's Serjeants, and Draper and Hayward, Serjeants, for the defend- ant, in support of the motion in arrest of judgment, and by Brime and Birch, King's Serjeants, and Booth, Serjeant, for the plain- tiff, and on the 1st of February following the rule to arrest the judgment was discharged. Willes, Lord Chief Justice, delivered his opinion to the follow- ing effect. Several objections have been taken by the defendant to this declaration in arrest of judgment, — two general ones and three to the particular penning of the declaration. I admit the rules laid down in most of the cases that were cited, and therefore shall have occasion to mention only a few of them, because they are not applicable to the present case. The first general objec- tion is that there is no precedent of any such action as this, and that therefore it will not lie ; and the objection is founded on Lit. § 108, and Co. Lit. 81 6, and several other books. But this general rule is not applicable to the present case ; it would be if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy ; but there must be new facts in every special action on the case. The second general objection is that there must be damnum cum injuria, which 1 admit. I admit likewise the consequence that the fact laid before per quod consortium amisit is as much the gist of the action as the other ; for though it should be laid that the plaintiff lost the comfort and assistance of his wife, yet if the fact that is laid by which he lost it be a lawful act, no action can be maintained. By injuria is meant a tortious act ; it need not be wilfuLand malicious ; for though it be accidental, if it be tor- tious, an action will lie. This rule, therefore, being admitted, the only question is whether any such injury be laid here ; and this rule will prop- erly come to be considered under the several objections made to the particular counts ; for if any of them hold, then no injury is laid. I admit also, that, as the verdict is on three counts and the 440 SUPPLEMENT. damages are entire, if either of the counts be bad, the judgment must be arrested. To the second count no objection was taken. But the counsel for the defendant began with the third count, to which they took several objections, which are all false in fact. 1st. Tliat it is not laid that the wife went away without the husband's consent ; but it is expressly so laid. 2d. That it is not laid that the defendant knew of it ; but it is laid in express terms that he did, and tliat, knowing it, he con- cealed and detained her. 3d. That no request by the plaintiff to the defendant to deliver up the wife and refusal by the defendant are laid. It is not necessary to determine in this case whether a request and refusal were necessary, because both are expressly laid here ; but accord- ing to my present thoughts, in the case of a detainer, I think them necessary. And as not guilty to the whole is pleaded in special actions on the case, it puts every fact that is laid in issue. I think it likewise necessary to prove the request and refusal, and we must take it that this was so proved at the trial, the jury hav- ing found a verdict for the plaintiff. The principal objections were to the first count, and they were three : — 1st. That procuring, enticing, and persuading are not sufficient, if no ill consequence follows from it. 2d. That unlawfully and unjustly will not help the case, but the particular methods made use of should have been stated by which the defendant procured, etc. ; otherwise, this is leaving the law to a jury. 3d. That no notice or request is laid, which is necessary in the case of the continuance, though it be not necessary if the defend- ant had at first persuaded her. To the first there were two answers : — 1st. That here is a consequence laid that by means thereof the plaintiff lost the comfort and society of his wife, and the profit and advantage of her fortune, etc. 2d. Whether "enticing" goes so far or not, I will not nor need determine, because "procuring" is certainly "persuading with effect." I need not cite any authorities for this, because every one who understands the English language knows that this is the common acceptation of that word. But to be sure it must be an unlawfully procuring, and that WINSMOEE V. GEEENBANK. 441 brings me to the second objection. It is not necessary to set forth all the facts to show how it was unlawful ; that would make the pleadings intolerable, and would increase the length and ex- pense unnecessarily. It was said, however, that at least it was necessary for the plaintiff to add " by false insinuations ; " but it is not material whether they were true or false ; if the insinua- tions were true, and by means of those the defendant persuaded the plaintiff's wife to do an unlawful act, it was unlawful in the defendant. In answer to the objection that this is leaving the law to the jury, it must be left to them in a variety of instances where the issue is complicated, as hurglariter, felonice, proditore, devisavit vel non, demisit vel non. But the judge presides at the trial for the very purpose of explaining the law to the jury, and not to sum up the evidence to them. And as to the distinction between the beginning and continu- ance of a nuisance by building a house that hangs over or dam- ages the house of a neighbor, that against the beginner an action may be brought without laying a request to remove the nuisance, but that against the continuer a request is necessary, for which Penruddock's Case, 5 Co. 100, 101, was cited, and many others might have been quoted, the law is certainly so, and the reason of it is obvious. But that reason does not extend to the present case ; because every moment that a wife continues absent from her husband without his consent, it is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it to be so. Several arguments were urged and several cases were cited on both sides of the question, whether defects in this declaration were or were not aided by the verdict ; but I shall not take notice of them, because I am of opinion that there are no defects to be cured, and that the declaration would have been good even on a demurrer. Had the words " unlawfully and unjustly" been omitted, this question might have been material, because it is lawful in some instances for the wife to leave her husband ; but as the declaration is framed, it is not necessary to enter into the consideration of that question. Many observations were likewise made on the quantum of the damages given by the jury, and it was said that it was uncertain whether or not the husband had sustained any. Those were proper observations on the motion 442 SUPPLEMENT. for a new trial (which has already been disposed of), but cannot have any weight on this motion in arrest of judgment, where everything laid in the declaration must be taken to have been proved. I can see no reason to arrest this judgment, and therefore I am of opinion that the rule must be discharged. Mr. J. Abnby and Mr. J. Burnett gave their opinions seriatim, agreeing with the Lord Chief Justice. Rule discharged. Heermancb v. Jambs. (47 Barb. 120. Supreme Court of New York, 1866.) Husband's Action for Alienation of Wife's Affections. By the Court, Potter, J. The complaint charges, that the de- fendant, " contriving and wickedly and unjustly intending to injure the plaintifiP, and to deprive him of the affections, com- fort, fellowship, society, and assistance of Rachel, his wife, did, ' at, etc., wrongfully and unlawfully purpose, plan, and undertake to alienate the affections of his (the plaintiff's) said wife, and did then and there, for the accomplishment of such purpose," (by various professions and pretences set forth,) " and by false insinuations against the plaintiff, and by other insidious wiles, so prejudice and poison the mind of the said Rachel against the plaintiff, and so far alienate her affections from her said husband, as to induce the said Rachel to desire and seek to obtain a divorce or separation from the said plaintiff ; and that the defendant, on or about the first day of February, 1866, did counsel, advise, aid, and assist the said Rachel in efforts to procure the commence- ment of proceedings for such divorce or separation, he, the de- fendant, well knowing that no cause or lawful ground existed for either a divorce or separation. And that the said defendant did, by the means aforesaid, so far prejudice and poison the mind, etc. of the said Rachel against the said plaintiff, and did so far alien- ate her affections from the plaintiff, as to persuade and induce her to refuse to recognize or receive the plaintiff as her husband ,* HEEKMANCE V. JAMES. 443 and that on or about the fifteenth day of March, 1866, the said Rachel, acting under the wrongful and unlawful advice, influence, and direction 'of the said defendant, did refuse to recognize or receive the plaintiff as her husband, or to live with him as his wife ; and said Rachel has from thence hitherto, acting under the like advice, influence, and direction of the said defendant, per- sisted in such refusal. And by means of the premises the plain- tiff has from thence hitherto wholly lost and been deprived of the comfort, fellowship, society, aid, and assistance of the said Rachel, his said wife, in his domestic affairs ; and the plaintiff has thereby been otherwise much damnified and injured. Wherefore the plaintiff demands judgment," etc. Admitting, as a demurrer does, the facts alleged, do they con- stitute a cause of action ? This seems to be the only question in the case. It is insisted that the acts specifically charged are not unlawful, and that therefore no action can be maintained. The conclusion from the premises of this proposition is a non sequitur, and is not sound. It is not the act alone, but it is the consequence which may directly or naturally result from an act, for which the party may be responsible ; and most especially is this the case when the act is done mischievously, designedly, and wickedly, and with intent to produce the consequences that ensue ; and a party is answerable criminally, as well as civilly, for such consequences. The questions, then, in this case, are, were the consequences alleged the direct and natural result of the defendant's acts ? and if so, are they the subject of an action, or the ground of damage ? I am not able to see anything unnatural in the result, from the premises charged, but the contrary. If, as is admitted by the demurrer, the defendant contrived, and with a wicked intent, tried to deprive the plaintiff of the society, affections, aid, and assist- ance of his wife, and with such intent did perform the acts alleged ; if he did attempt to persuade and induce the plaintiff 's wife to refuse to " recognize or receive the plaintiff as her said husband," and if the plaintiff's said wife did afterwards so refuse to recognize or receive her said husband, or to live with him as his wife ; if the plaintiff subsequently lost and was deprived of the comfort, fellowship, society, aid, and assistance of his wife in his domestic affairs, it is only legally the direct and natural result of such interference, and is necessarily to be deduced from the facts alleged not only, but it is a fact that stands charged and 444 SUPPLEMENT. admitted upon the record as the consequence of the act of the defendant. This brings us to the real point in the case to be considered. Does such alienation of the affections of the wife, such refusal to recognize and receive the plaintiff as her husband, and to live with him as his wife, such a deprivation of the comfort, fellow- ship, and society of a wife, such a loss of her aid and assistance in his domestic affairs, as is charged, though there be no actual physical absence or separation of the wife from him, constitute a cause of action, when caused as charged in the complaint ? Separation is the usual consequence of such interference, and the cases found in the books are, it is true, cases of actual separa- tion from the house and home of the husband ; and upon this authority it is insisted that an allegation of pecuniary loss, or loss of services by an actual leaving or continuing away from service, is necessary to make out a cause of action. 1 do not think that this argument is sound. The gist of the action is the loss of the comfort and society of the wife. Weedon v. Timbrell, 5 Term R. 357, 360. AsHHDEST, J. in this case said : " The gist of the action is the loss of the comfort and society of the plaintiff's wife ; that is always inserted in declarations of this kind as a material and substantial allegation, and the forms of pleading are evidence of the law." In Hutcheson v. Peck, 5 Johns. 207, 208, Spencer, J. held, even in a case where a father had given protec- tion to his child, who was the plaintiff 's wife, " that if he did it maliciously, or improperly, against the will of her husband, and thereby deprive him of comforts he is entitled to enjoy from her aid and society, most undoubtedly an action will lie." This propo- sition, laid down by Judge Spencer, is not to be regarded as at all in conflict with the remark of Van Ness, J. in the same case, who said : " The true and only inquiry is, has the conduct of the defendant occasioned damnum cum injuria to the plaintiff? If both liave been shown, the action is maintainable." If the gist of the action be the loss of the comfort of the society of the wife, then damage with injury is fully stated and shown. In Wens- more V. Greenbank, Willes, 581, it was laid down " that by injuria is meant a tortious act." This is fully charged in the present case. In Hutcheson v. Peck, supra, Thompson, J. said : " The quo animo with which the defendant acted ought to have been made the material point of inquiry." In the case before us, HEERMANCE V. JAMES. 445 the quo animo is fully alleged and admitted. In the case of Wensmore v. Greenbanlj, supra, which is a leading case, cited with approbation in Hutcheson v. Peck, the same objections, sub- stantially, were made to the declaration in that case as in this, of omissions of allegations. Ch. J. Willes said : " To be sure, it must be an unlawful procuring ; but it is not necessary to set forth all the facts to show how it was unlawful." It was insisted that it was necessary to state in the complaint " that it was by false insinuations ; " but the judge remarked, " that it was not material whether they were true or false ; if the insinuations were true, and by means of those the defendant persuaded the plain- tiff's wife to do an unlawful act, it was unlawful in the defend- ant." And again, he says : " Every moment that a wife continues absent from her husband (without justifiable cause), without his consent, is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it." Our own courts, to their credit, have quite uniformly adopted the same high moral views of the law of public policy, in this regard, as they have in England. In Bennett v. Smith, 21 Barb. 441, T. R. Strong, J. holds this language : " The wife owes to the husband the duty of living with him, and seeking to promote his interests and happi- ness ; and by preventing the performance of that duty, a wrong is done to him, involving a pecuniary loss, as well as a loss of peace and comfort in the marriage relation. Whoever is the wrongdoer, whether the father of the wife, or any other person, he should be subject to an action for damages by the husband." The judge who tried the action last cited charged the jury, " that if the defendant, by persuasion or force, prevented the plaintiff's wife from returning to her husband, he was liable ; or if he persuaded her to stay away from her husband, such persuasion was an unlawful act ; and that the law imputes an unlawful purpose to all persons who do an unlawful act ; and that if the defendant had done either of these, he was liable, without refer- ence to his motives or intentions." The general term of the seventh district hold this charge to be sound. Such an injury is analogous to, and differs only in degree from, an injury to a hus- band by criminal conversation with the wife. In each case, it is alienating the wife's affections from her husband, and destroying the comfort he enjoyed in her society. (Id. 446.) So in the case of Schuneman v. Palmer, 4 Barb. 227, Harris, J. laid down the 446 SUPPLEMENT. rule : " The husband has the right to the society and assistance of his wife, and whoever persuades or entices her to separate herself from him, and thus deprive him of that right, is liable to an action." And again : " Whenever a wife is unjustifiable in abandoning her husband, he who knowingly and intentionally assists her in thus violating her duty is guilty of a wrong, for which an action will lie." This principle was repeated m Barnes v. Allen, 30 Barb. 663. The case before us differs from the cases cited, not in principle, but only in the fact that there was no actual departure of the wife from the husband's house in the case before us. But how does this fact change the case, or the principle to be determined by it ? The injury in either case is the same, upon the authority above cited. I am not sure that the wrong and injury is not aggravated by the fact that the wife still remains in the house of the husband. Here was the same poisoning of her mind ; the same alienation of affections from the husband ; the same refusal to receive or acknowledge him as a husband and to live with him as such ; the same refusal to give him comfort, fellowship, and society ; the same refusal of her aid and assistance in his domestic affairs, — all that constitutes the gist of the action, — and all equally induced by the unlawful act and advice of the defendant. Her actual presence in his house and with him, under such circumstances, maintaining and exhibiting towards him such feeling, could afford him no relief from the injury inflicted, but would rather add the provocation of insult to the keenness of suffering. It would con- tinue before him a present, living, irritating, aggravating, if not consuming source of grief, which even her absence might in a measure relieve. At all events, it would relieve him from the burden of her support, if she were absent. It is laid down by Bishop, in his work on Marriage and Divorce, §§ 777, 781, 782, 799, that the refusal of the husband or wife to dwell with the other party to the marriage, as husband or wife, is desertion. The same authorities hold that there may be desertion though the parties continue to occupy the same house. 1 Bishop on Mar- riage and Divorce, § 779. 2 Little, (Ky.) 337. Moss v. Moss, 2 Iredell, (N. C.) 35. How is desertion, then-, to be distinguished from separation ? What reason can be given that should make it material that there be a technical physical separation of the parties, in order to con- BENNETT V. BENNETT. 447 stitute a cause of action ? I apprehend that the separation which occasions the real injury, the suffering, the loss, is based upon a higher principle ; it is one that strikes at the source of the highest enjoyments of life ; it is alienated affections, the loss of comfort, of fellowship, society, aid, and assistance in domestic affairs ; the loss of conjugal rights. " It may be laid down as a rule," says Bishop, " that if one party refuse to the other whatever belongs to marriage alone, from causes resting in the will, and not from physical inability, the refusing party would thereby voluntarily withdraw from whatever the relation of marriage, distinguished from any other relation existing between human beings, is under- stood to imply ; therefore he should be holden to desert thereby the other." § 782. The law affecting this relation, I am disposed to say, should be administered and held in all its fidelity and integrity ; the courts at least should see to it that the reproach should not be cast upon them, that he who_ commits an injury, such as that complained of in this case, should not be permitted to escape the consequences of his act, upon a frivolous and immaterial technicality. The order of the special term should be afi&rmed. Bennett v. Bennett. . (116 N. Y. 584. Court of Appeals [Second Div.J of New York, 1889.) Wife's Action for Enticement of Husband. Vann, J. The plaintiff, a married woman, brought this action to recover ' damages from the defendant for enticing away her husband, and depriving her of his comfort, aid, protection, and society. The defendant insists that neither at common law nor under the act concerning the rights and liabilities of husband and wife can such an action be maintained. It was provided by that statute that any married woman might, while married, sue and be sued in all matters having relation to her sole and separate property, and that she might maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole. Laws 448 SUPPLEMENT. of 1860, chap. 90, p. 158, § 7, as amended by chap. 172, Laws of 1862, p. 343. An injury to the person, within the meaning of the law, includes certain acts which do not involve physical con- tact with the person injured. Thus criminal conversation with the wife has long been held to be a personal injury to the hus- band. Delamater v. Russell, 4 How. 284 ; Straus v. Schwarz- waelden, 4 Bosw. 627. And the seduction of a daughter a like injury to the father. Taylor v. North, 3 Code Rep. 9 ; Steinberg V. Lasker, 60 How. 432. The Code of Civil Procedure, in defining " personal injury," includes under that head libel, slander, " or other actionable injury to the person." § 3343, sub. 9. It is well settled that a husband can maintain an action against a third person for enticing away his wife and depriving him of her comfort, aid, and society. Hutcheson v. Peck, 5 Johns. 196 ; Barnes v. Allen, 1 Abb. Ct. Ap. Dec. 111. The basis of the action is the loss of consortium, or the right of the husband to the conjugal society of his wife. It is not necessary that there should be proof of any pecuniary loss in order to sustain the action. Hermance v. James, 32 How. 142 ; Rinehart v. Bills, 82 Mo. 534. Loss of services is not essential, but is merely matter of aggravation, and need not be alleged or proved. Bigaouette v. Paulet, 134 Mass. 125. According to the following cases, a wife can maintain an action in her own name and for her own benefit against one who entices her husband from her, alienates his affection, and deprives her of his society : Jaynes v. Jaynes, 39 Hun, 40 ; Breiman v. Paasch, 7 Abb. N. C. 249 ; Baker v. Baker, 16 id. 293 ; Warner v. Miller, 17 id. 221 ; Churchill v. Lewis, id. 226 ; Simmons v. Simmons, 21 id. 469. There appears to be no reported decision in this State holding that such an action will not lie, except Van Arnum v. Ayers, 67 Barb. 544. That case was decided at Special Term in 1877, and the learned justice who wrote the opinion therein, as a member of the General Term when the case now under consideration was affirmed, concurred in the result, and stated that, owing to recent authorities, he thought the right of action should be upheld. Some of the cases rest mainly upon the statute already alluded to, and sustain the action upon the theory that enticing away the wife is such an injury to the personal rights of the husband as to amount to an injury to the person, while others proceed upon the BENNETT V. BENNETT. 449 ground that the loss of consortium is an injury to property in the broad sense of that word, " which includes things not tangible or visible, and applies to whatever is exclusively one's own." Jaynes v. Jaynes, supra, sustains the action upon either ground, although prominence is given to the latter. Several of the cases justify the action generally without allusion to any statute. If the wrong in question is an injury to property simply, it would not abate upon the death of the plaintiff, but could be revived in the name of the personal representatives, a consequence which suggests the precarious nature of that basis for the action. Cre- gin V. Brooklyn Crosstown R. R. Co., 75 N. Y. 192 ; 83 id. 595. In other States the rule varies. In Ohio and Kansas recovery by the wife is permitted, while in Indiana the right thus far has been denied, but by a court so evenly divided in opinion as to leave the ultimate rule in that State uncertain. Clark v. Harlan, 1 Cin. 418 ; Westlake v. Westlake, 34 Ohio St. 621 ; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13 ; Logan v. Logan, 77 Ind. 558. In England the point does not appear to have been directly passed upon, but in one case the judges approached it so nearly and differed so widely in their discussions that it is cited as an authority upon both sides of the question. Lynch v. Knight, 9 H. L. 577. The Lord Chancellor (Campbell), in delivering the leading opinion, said : " If it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action lies. Nor can I allow that the loss of consortium, or conjugal society, can give a cause of action to the husband alone." Lord Ceanwoeth was strongly inclined to think that this view was correct, but did not feel called upon to express a decided opinion, as it was agreed that the judgment of the court should be placed upon another ground. Lords Beougham and Wbnsleydale thought that the action would not lie. In that case, it is to be observed, the husband joined the wife in bringing the action " for conformity," as there was no enabling statute authorizing her to sue in her own name. While this action was tried, decided at the General Term and argued in this court upon the theory that the acts of 1860 and 1862 concerning the rights and liabilities of husband and wife were still in force, in fact they have no application, because the sections heretofore regarded as applicable were repealed by 29 '450 SUPPLEMENT. the general repealing act of 1880. Laws of 1880, chap. 245, §§ 36, 38. The judgment in this action, therefore, cannot be aflBrmed upon the ground that the wrong complained of may be redressed under those statutes. Can it be sustained upon the theory that the right of action belongs to the wife according to the general prin- ciples of the common law, and that she may now maintain it, being permitted to sue in her own name ? The Code of Civil Procedure (§ 450) provides that a married woman " appears, pros- ecutes, or defends, in an action or special proceeding, alone or joined with other parties as if she were single." The capacity of the plaintiff to sue cannot be questioned under this statute, but whether she has a cause of action to sue upon is the impor- tant inquiry. Can she maintain an action for any personal injury, even for an assault and battery, since the repealing act, already cited, went into effect ? Admitting her power to assert her rights in court, what right has she to assert? Has she such a legal right to the conjugal society of her husband as to enable her to recover against one who wrongfully deprives her of that right? It is urged that the novelty of the action is a strong argu- ment that it cannot be upheld. The same point was urged in almost the first action brought by a husband against one who had enticed away his wife, and the answer made by the Court in that case we repeat as applicable to this : " The first general objection is, that there is no precedent of any such action as this, and that therefore it will not lie. But this general rule is not applicable to the present case. It would be if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy, but there must be new facts in every special action on the case." Winsmore V. Greenbank, Willes, 577, 580. Moreover, the absence of strictly common-law precedents is not surprising, because the wife could not bring an action alone, owing to the disability caused by coverture, and the husband would not be apt to sue, as by that act he would confess that he had done wrong in leaving his wife. The actual injury to the wife from the loss of consortium, which is the basis of the action, is the same as the actual injury BENNETT V. BENNETT. 451 to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the hus- band or of the wife, is a violation not only of a natural right, but also of a legal right arising out of the marriage relation. It is a wrongful interference with that which the law both confers and protects. A remedy not provided by statute, but springing from the flexibility of the common law and its adaptability to the changing nature of human affairs, has long existed for the redress of the wrongs of the husband. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature as those of the husband, the remedy should be the same. What reason is there for any distinction ? Is there not the same con- currence of loss and injury in the one case as in the other ? Why should he have a right of action for the loss of her society, unlfess she also has a right of action for the loss of his society ? Does not the principle that " the law will never suffer an injury and a damage without a remedy " apply with equal force to either case ? Since her society has a value to him capable of admeas- urement in damages, why is his society of no legal value to her ? Does not she need the protection of the law in this respect at least as much as he does ? Will the law give its aid to him and withhold it from her ? It appears from the cases already cited that, according to the weight of authority, the wife can maintain such an action when there is a statute enabling her to sue. The modern elementary writers take the sanie position. " To entice away or corrupt the mind and affection of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife. The gist of the action is not the loss of assistance, but the loss of con- sortium of the wife or husband, under which term are usually included the person's affection, society, or aid." Bigelow on Torts, 153. " We see no reason why such an action cannot be supported where, by statute, the wife is allowed to sue for per- sonal wrongs suffered by her." Cooley on Torts, 227. 452 SUPPLEMENT. The question remains whether a married woman can now maintain an action in this State for an injury to her person ? Had a married woman a right of action at common law for a personal injury, but without power to assert it, owing to her coverture, or did the right itself belong to the husband? If the right was his, she seems to have no remedy for such wrongs since the repeal of the statutes of 1860 and 1862. If, however, the right was hers, but, owing to the legal fiction of the unity of husband and wife, she could not assert it, she may now have a remedy under section 450 of the Code. At common law the husband and the wife were treated as one person, and marriage operated as a suspension, in most respects, of the legal existence of the latter. Prom this sup- posed unity of husband and wife sprang all the disabilities of married women. She could not make a binding contract, or commence an action, because either would imply that she had a separate existence. He could not enter into a covenant with her, because it would be only a covenant with himself. They could not give evidence for each other, because no one was then permitted to testify in his own behalf, nor against each othdr, because no one could be compelled to accuse himself. But marriage only suspended her personal rights, it did not anni- hilate them nor transfer them all absolutely to her husband. While it was an absolute gift to him of her goods and chattels, it was only a qualified gift to him of her choses in action, de- pending upon the condition that he reduce them to possession during coverture, as otherwise upon his death they belonged to her. Bright's Husband and Wife, vol. i. pp. 34, 36 ; Clancy on Women, 109 ; Reeves's Domestic Relations, (4th ed.) 1 ; 2 Kent's Com. (11th ed.) 116. " It is common doctrine upon which the decisions in all the States of our Union and of England are in harmony, that, on the death of the husband, the wife's choses in action not reduced by him to possession survive to her. She takes them, not as his heir, personal representative, or administratrix, but they revert to her in her own right. And we have seen that this doctrine applies as well to the wife's post-nuptial choses in action as to her ante-nuptial ones." Bishop's Married Women, § 171. " The husband shall not have them unless he and his wife recover them." Co. on Lit. 351, b. BENNETT V. BENNETT. 453 Under the head of choses in action, torts committed upon a married woman, either before or during coverture, are included. "Although the husband is . . . entitled to all the property which the wife acquires during the coverture, yet, if damages be claimed for an injury to her person or reputation during her coverture, those damages belong to her, and she must be joined with the husband in the suit. When damages for such an injury are collected they belong to the husband, but in case of his death before they are reduced to possession they survive to the wife, in the same manner as if the injury had been received before marriage." Reeves's Dom. Rel. 87. " The wife has capacity to be a recipient of wrong as well as of property, the same as though she were sole. If she is slan- dered, or an assault and battery is committed upon her, or any trespass or other actionable wrong, she may, on becoming dis- covert, sue the wrongdoer the same as though she had been sole when she received the injury ; though, if the suit is brought in the lifetime of her husband, he must be made a party plaintiff with her, in consequence of the general rule of law which places the wife under the protection of her husband. When the result of the wrong becomes money, in the form of damages paid by the wrongdoer, the wife, though she can receive, cannot hold it, and the title glides to the husband, making the money his." Bishop on Mar. Wom. § 705. The authorities are uniform in supporting the position of these writers. Latourette v. Williams, 1 Barb. 9 Klein v. Hentz, 2 Duer, 633; Ball v. Bullard, 52 Barb. 142 Beach v. Ranney, 2 Hill, 309 ; Smith v. Scudder, 11 S. & R. 825 Checchi v. Powell, 6 B. & C. 258 ; Bond v. Simmons, 8 Atk. 20. The cause of action for a personal injury to a married woman, whether committed before or after marriage, belonged to her at common law, or else it would not survive to her upon the death of her husband. If it was his, it would either abate or pass to his personal representatives. On the other hand, if she dies, as Lord Bacon said, " The action dies with her." Bacon's Abr., Baron and Feme, K. Unless the right was hers, subject only to the disability to sue without her husband, why should it cease upon her death ? Why should it not survive to the hus- band if the right itself was his ? So, in the case of an absolute divorce, such rights of action remain the property of the wife. Legg V. Legg, 8 Mass. 99 ; Lodge v. Hamilton, 2 S. & R. 491. 454 SUPPLEMENT. If the injury was to the wife only, the action was brought in the name of both husband and wife, and was, in effect, her action. If the injury was in part to her and in part to him, for the former both joined, but for the latter he sued alone. Johnson v. Dicken, 25 Mo. 580 ; Hooper v. Haskell, 56 Me. 251 ; Laughlin v. Eaton, 64 id. 156. It is clear, therefore, that at common law the right of action for a tort committed upon a married woman belonged to her, and it is in the light of this principle that the full significance of section 450 of the Code becomes apparent. This section recog- nizes the separate existence of the wife to the broad extent of authorizing her to sue generally in her own name. By enabling her to prosecute as if she were single, it removed the only obstacle in the way of a personal assertion of her right in this regard. She had a right of action for any actionable injury before, but she could not set the law in motion unless her husband joined. When the legislature provided that she could sue in her own name, without this inconvenient formality, it cut off the right of the husband, and permitted her to prosecute and recover for herself. This view is confirmed by considering the history of legislation in relation to married women since 1848. Did the legislature suppose that, in repealing the sections in question of the acts of 1860 and 1862, they were restoring the rule of the common law, and were depriving married women of substantial rights? Endlich's Interpretation of Statutes, § 475. Every step in legislation, unless this is an exception, has been in the direction of the complete abrogation of the common-law unity of husband and wife. No step backward has been taken in that regard, unless this must be construed to be such. The bar, the public, and the courts have thus far all proceeded upon the theory that a miirried woman can still sue in her own name and for her own benefit for any injury to her person. It is a matter of common knowledge, that, since the repealing act of 1880, in nearly every county of the State such actions have repeatedly been brought and tried, recoveries had and paid, and other actions brought that are now pending, upon the theory, adopted by both parties, that the right of a married woman to sue for personal injuries still exists. Even the exhaustive brief of the learned counsel for the appellant contains no suggestion BENNETT V. BENNETT. 455 to the contrary. This practical construction by the bar, the public, the legislature, and the courts is of great value, because a contemporaneous is generally the best construction of a statute. Sedgwick on Stat, and Con. Law, 227. The disastrous consequences 'that would result from the op- posite construction cannot be lost sight of, because for nearly nine years the people have conducted their business, the lawyers have advised their clients, and the courts have administered jus- tice, without exception, so far as known, in unquestioned reliance upon the unchanged rights of married women with reference to torts committed upon them. If such a radical change was effected by the repealing act, why was it not sooner discovered ? By section 1906 of the Code of Civil Procedure, an action for slander by the use of words imputing unchastity can be main- tained by a woman without proof of special damage, and, " if the plaintiff is married, the damages recovered are her separate property." Was this section left simply as a landmark to show how far the tide of legislation had gone in the direction of emancipating married women before it began to flow back toward the old level of the common law ? Is it not rather part of a harmonious sys- tem, designed to permit married women to seek redress in their own names and for their own benefit for any violation of their rights, whether of person or property ? According to the Code of Procedure, when a married woman was a party, her husband was a necessary party with her, unless the action concerned her separate property, or it was between herself and husband. Code Proc. § 114 ; Laws of 1849, chap. 438, § 114. It was not by vir- tue of that Code, but owing to the acts of 1860 and 1862, that a married woman could sue for personal injuries. From 1849 until 1877, section 114 of the old Code remained unchanged in this respect. When section 450 of the new Code was enacted, it was a substitute for section 114, and the revisers, in reporting the new section said : " It is believed that no argu- ment is necessary in support of the proposition that what is left of that section by the various married women's acts should be swept away." The object of the repealing act of 1880, as well as that of its precursor of 1877, as is evident from an attentive study of their provisions, was to do away with statutes and parts of statutes 456 SUPPLEMENT. regarded as obsolete. Laws of 1877, chap. 417 ; Laws of 1880, chap. 245. Owing to the enactment of the Code of Civil Procedure and other statutes revising and changing existing laws without repeal- ing or referring to them, the legislature sought to repeal statutes and sections no longer regarded as operative. Its intention w as to formally do away with that which had already been practically done away with, rather than to make further changes. If the legislature had intended to make a radical alteration in its long established policy of legislation affecting the rights of married women, it would not ordinarily be buried in the midst of an act designed to erase useless provisions from the statute-book. One would not expect that such a decided change, affecting nearly every family in the State, would be so obscurely made. These views are not in conflict with Fitzgerald v. Quann, 109 N. Y. 441, which holds that in an action against the wife for a tort committed by her, as the husband is still liable, he is a proper party defendant. At common law the husband was liable for the torts of his wife, whereas her choses in action, including the right to recover for torts inflicted upon her, never vested in him, although he was- entitled to the proceeds when collected. As a party plaintiff, therefore, he was joined " for conformity," but it was " more than a mere necessity to join him as a party defendant." Fitzgerald V. Quann, 33 Hun, 657, 658. His joinder in the one case was a mere formality, while in the other it was on account of his liabil- ity. While he had no cause of action in the former, there was a cause of action against him in the latter. We regard the language of section 450, when construed in con- nection with the common-law rules already alluded to, as strong enough to relieve a married woman of the formality of having her husband unite with her in bringing an action for an injury in- flicted upon her, but not strong enough to relieve him of his abso- lute liability. We think the judgment appealed from should be affirmed, upon the ground that the common law gave the plaintiff a right of ac- tion, and that the Code gave her an appropriate remedy. Bradley, J. The embarrassment which seems to attend the disposition of this case arises from the repeal by Laws of 1880, chapter 245, section 1, subdivisions 86, 38, of the amendatory BENNETT V. BENNETT. 457 section 3, chapter 172, Laws of 1862, and the amended section 7, chapter 90, Laws of 1860, which provided that a married woman might maintain an action in her own name to recover damages for injuries to her person or character, and that the proceeds of the recovery should be her property. The remaining statutes, which enable her to prosecute an action in her own name alone also, provide that it shall be neither necessary or proper to join her husband as a party with her in any action affecting her sepa- rate property. Code, § 450. This action is founded upon the disregard of the duties of the marital relation by the husband of the plaintiff, induced by the defendant, to the prejudice of the plaintiff. Marriage is a civil contract. 2 R. S. 138, § 1 ; Clay- ton V. Wardell, 4 N. Y. 280. From such contract spring recipro- cal duties of the parties to it, amongst which are those assumed by the husband, of her maintenance and his consortium, and thus to contribute to her comfort and enjoyment. To these means of her happiness, so far as practicable, she is entitled. As appeared by the verdict of the jury, the plaintiff's husband was induced by the defendant to essentially refuse to perform his marital under- taking, or to regard her rights in that respect. And the damages arising from the denial to the plaintiffs of such rights result from a breach by the husband, so induced, of the contractual relation of marriage. But such contract is sui generis, and differs from all other contracts in so far that the nature of a recovery of dam- ages in an action founded upon its breach is as in tort, and the action is deemed as for a personal injury, and consequently does not survive the party injured. Thorn v. Knapp, 42 N. Y. 474 ; Wade V. Kalbfleisch, 58 id. 282. And while a right of action for a personal injury may not be within the definition, as fre- quently given, of a chose in action, that term in its broadest sense does embrace it. People v. Tioga C. P., 19 Wend. 73, 74 ; Ber- ger V. Jacobs, 21 Mich. 215 ; C, B. & Q. R. R. Co. v. Dunn, 52 111. 260 ; 4 Am. R. 606 ; 3 Am. and Eng. Encyl. of Law, tit. Chose in Action. I concur in the result of the opinion of Judge Vann, and in his view that a cause of action arises against a party who effectually and wrongfully entices a husband to abandon his wife, and that at common law its availability to her was denied by reason of the disability of the wife to seek redress by action or take the benefit of it. The case involves the misconduct of the husband , and there 458 SUPPLEMENT. is no propriety in permitting him to join with his wife in prose- cuting an action for such cause, and to realize a pecuniary benefit as the result of his own wrong. The cause of action is the wrong- ful deprivation of the plaintiff of that to which she is entitled by virtue of the marital relation. It arises from the denial to her of that which the marriage contract gave her, and which she, unmo- lested, had the right to have and enjoy. The conjugal society of the parties to it is an essential requirement of such a contract and relation. And when that due from the husband is wrongfully taken from her, the consequences are her loss and hers alone. The plaintiff's right to the chose in action, springing from the defendant's act, which produced such loss to her, was derived from the marriage contract. It belonged to her, was her property. And since she is permitted, by statute, to have and assert pro- prietary rights, independently of her husband, and as provided by the section of the Code before mentioned, to alone and for her benefit prosecute actions, there seems to be nothing in the way of the plaintiff's right to maintain this actioa. The judgment should be affirmed. All concur except Haight and Paekeb, JJ., dissenting, and FOLLETT, Ch. J., not sitting. Judgment affirmed. Weedon v. Timbeell. (5 Term Reports. Court of King's Bench, 1793.) Husband'' s Action for Crim. Con. In an action for criminal conversation with the plaintiff's wife, it appeared that the plaintiff and his wife had agreed to live separately: subsequent to their separation, the plaintiff proved several acts of adultery committed by the defendant ; but there was no direct proof of any act of adultery before the separation ; though it appeared that, in a conversation concern- ing the separation, the plaintiff had alleged in the presence of the defendant several instances of gross indecency between the latter and the plaintiff's wife, to which he had made no reply. Lord Kenyon, being of opinion at the trial, at the last Sittings WEEDON V. TIMBEELL. 459 at Guildhall, that the gist of the action was the loss of the comfort and society of the wife, which was alleged in the decla- ration in the usual form, and that, as there was no evidence of the act of adultery till after the plaintiff and his wife were separated, proof of the act afterwards would not support that allegation, nonsuited the plaintiff. ""T Garrow obtained a rule to shew cause why there should not be a new trial on two grounds : first. That the evidence of loose conduct previous to the separation, coupled with the actual proof of adultery afterwards, ought to have been left to the jury as evidence of the act committed before such separation. 2dly, That the gist of the action was the act of criminal con- versation; and consequently that the separation did not take away the cause of action, however it might operate in mitigation of damages. When the cause came on again upon the report, Lord Kenton observed that the first point could hardly arise in this case, be- cause there was no actual evidence of the immoral or indecent conduct of the wife with the defendant before the separation, but merely an assertion of the husband to that effect, which had not been admitted by the defendant. This he said was so doubtful that it ought not to be pressed. And accordingly, on this intimation, the plaintiff's counsel did not insist any further upon that point. JSrskine showed cause on the second ground. Tlie nonsuit was proper, because the plaintiff failed in making out the gist of the action, which is the loss of the comfort and society of the wife, of which the defendant could not be said to have deprived the plain- tiff, inasmuch as the latter had, before any act of debauchery, vol- untarily renounced that society. It cannot be contended that the assault upon the person of the wife is the gist of the action, and that the rest is mere matter of aggravation ; for if that were so, the husband could not maintain the action in his own name only, but must also have joined his wife. In actions of a similar nature, where a father brings an action for seducing his daughter, per quod servitium amisit, the per quod is the gist of the action ; and the action cannot be maintained if she be living apart from the father at the time.^ Here the husband had abandoned all his marital rights over the person of his wife, and could not have 1 Satterthwaite v. Dewhurst, E. 25 G. 3, B. R., and Postlethwaite v. Parkes, 3 Burr. 1878. 460 SUPPLEMENT. reclaimed her without her own consent.^ With respect to a case, which was mentioned at the trial, of Warrington v. Brown, Sittings ' at Guildhall after Trin. 1779, before Lord Mansfield, in which the plaintiff, who had brought an action after the separation from his wife, obtained a verdict ; it is to be observed that it did not appear but that the act of adultery was before the separation ; and Lord Mansfield under all the circumstances of the case summed up against the plaintiff. G-arrow, Shepherd, and Reader, contra. The gist of the action is the criminal act, and not the loss of comfort, etc. ; if it were otherwise, parties ought to be let into evidence to show, in bar of the action, that no comfort was lost; which has never been allowed. It will be a very impolitic principle, and greatly con- ducive to immorality, to declare, that not the criminal act, but the loss of comfort, is the gist of the action. If that were so, no such action can be maintained for adultery after any separation, on whatever account it may have taken place. If it be for disagree- ment of temper, for example, it is not unlikely that a reconcilia- tion may take place,. against which a subsequent act of adultery will be an effectual bar. By this too a spurious issue may be thrown upon the husband ; and though he or his representatives may disprove the access, yet the onus probandi lies upom them. The admission of the principle contended for will also lead to nice distinctions of immorality, which are ever to be avoided. Supposing the act of adultery committed before separation, but not known to the husband till afterwards, it may as well be con- tended, in defence to such an action, that the loss of comfort does not arise from the act of adultery, which in such case would be literally true. Suppose a separation by the husband's being in a different country, could it be contended that no action was main- tainable, because he could not suffer any present loss of comfort ; or if the separation were premeditated only for a certain time, at the end of which the parties proposed to live together again, would that defeat this action ? If not, why may it not equally be sup- posed that the parties may at some future time be reconciled, although their separation was at first for an indefinite time ? It has no doubt been customary to lay the loss of comfort, etc., in declarations of this nature ; but that has never been held neces- sary ; and if it were necessary to be laid, it does not follow that > See R. V. M. Mead, 1 Burr. 542. WEEDON V. TIMBEELL. 461 it is necessary to be proved. In tlie case of a father who brings an action for the debaucliing of his daughter, although it may be necessary to lay it with a per quod servitium amisit, yet sub- stantially no such proof is necessary. There is, besides, another inconvenience attending the principle contended for on the other side ; for if that be true, no man who is separated from his wife, on whatever account, can ever obtain a divorce on account of any act of adultery afterwards ; as it has generally been required of persons seeking a divorce to show the verdict of a jury in their behalf. [Lord Kenyon, Ch. J. But such a verdict is not essen- tially necessary ; otherwise no divorce could be obtained if the adulterer died before the action was brought.] The plaintiff's counsel also read a note of the case of Warrington v. Brown, different from that mentioned on the other side. This was stated to be an action for criminal conversation, brought by the husband after a total separation from his wife, though no articles were executed. The note stated that the plaintiff had recovered a ver- dict about a year before, which was also after the separation, on the same account, against the defendant; and that this action was for a repetition of the offence ; and that the jury, under the direction of Lord Mansfield, found for the plaintiff. There the declaration alleged the loss of comfort and society, etc., and the damages were 201. ; a writ of error was brought, but the judgment was affirmed ; and no new trial was ever moved for. Lord Kenton, Ch. J. On the trial of this cause, I understood there was no decision on the subject; on- principle, I thought that the action would not lie, and nonsuited the plaintiff. If the case before 'Lord Mansfield had been decided in the manner now supposed, it would have had very considerable weight with me : but, according to a note of that case, with which I have been furnished, it appears that his Lordship's opinion was against the action ; for he said it was a new experiment ; that permitting such an action to be maintained would be attended with very mischievous consequences ; and that the gist of the action ,was the loss of the comfort and society of the plaintiff's wife. It is true that the jury gave a verdict for the plaintiff with 201. dam- ages : but that was certainly against the opinion of the judge ; perhaps the smallness of the damages, and the improper conduct of the defendant, in that case, were the reasons why no motion was made for a new trial. It is material to consider what is the gist 462 SUPPLEMENT. of this action ; the plaintiff contends that it is the criminal act, but that I deny. I thinii it is a civil action, brought to recover satisfaction for a civil injury done to the husband, and not to punish the defendant for having broken the laws of morality and decency. But what injury is done to the plaintiff, who has voluntarily relinquished his wife ? It cannot be said that he is deprived of the comfort and society of his. wife. I can see the immorality of the defendant's conduct in as strong a light as any person ; but still this action must be confined within legal limits. This is like the case of an action by a father for the loss of service of his child ; in which, however the parent may feel for the violation of his daughter's chastity, it is clear that no action can be maintained, unless some evidence be given that the daughter performed some acts of service for the father. This is not like the instance put of a temporary separation from the wife ; in such case, the wife still continues within the protection of the husband, which she does not here. Before I saw the opinion of Lord Mansfield in the case before him, I thought that this action could not be supported ; and I am now confirmed by what his Lordship there said, because that which is the gist of action fails. AsHHUEST, J. The gist of this action is the loss of the com- [• fort and society of the plaintiff's wife : that is always inserted in J /declarations of this kind, as a material and substantial allegation ; and the forms of pleading are evidence of the law. Then, taking that as the principle, it follows that if the husband separated himself from his wife, he cannot be said to be deprived of that comfort and society which he has before renounced. Under the circumstances of this case, it cannot be said that the plaintiff has sustained the injury which he has imputed to the defendant. And the opinion of Lord Mansfield in the case cited coincides with ours. The principle of this case is like that mentioned of debauch- ing the plaintiff's daughter, in which the plaintiff must give some proof of acts of service done by her in order to support the allega- tion in the declaration ; very slight evidence indeed is sufficient, but still it is necessary to give some. Buller, J. of the same opinion. Grose, J. This is considered as an action on the case, and not of trespass ; and the plaintiff is entitled to full costs, though he recover less than 40s. Rule discharged. ^^ BIGAOUETTE V. PAULET. 463 BiGAOUETTE V. PaULBT. (134 Mass. 123. Supreme Judicial Court of Massachusetts, 1888.) HusbancTs Action for Crim. Con. Tort in four. counts. The first count was for seduction of the plaintiff's wife; the second and fourth were for assaults upon her ; and the third was for a rape ; whereby the plaintiff lost her comfort, assistance, society, and benefit. "Writ dated April 9, 1877. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows. The only witnesses were the plaintiff and his wife. The wife testified that the plaintiff was a workman in the factory of the Smith American Organ Company, in a subordinate capacity, under the defendant, and that the parties were in the habit of visiting each other occasionally with their wives; that on some occasions, previously to July 5, 1876, the defendant told the plaintiff's wife that he would turn her husband away from the factory if she refused to receive the defendant's visits ; that on July 5, 1876, the defendant violently and forcibly ravished her ; that he also immediately showed her a pistol, and threatened to shoot her if she should ever tell her husband ; that she was at that time four months pregnant with child; that her child Was born on December 11, 1876 ; that on December 16, 1876, she first told her husband of what had occurred between her and the defendant, and three days afterwards the plaintiff was dis- charged from the factory by the defendant ; that shortly after July 5, 1876, the plaintiff saw black and blue marks on his wife's arms and legs, and observed that she was ill ; that she had no physician, and they kept no servant to assist her; and that she attended to and performed her ordinary domestic du- ties in her husband's family from the time of the assault up to the time of her confinement, but that her performance of these duties was attended with pain and difficulty to herself. The plaintiff also testified to some of the above facts, and then rested his case. The defendant contended, the foregoing being all the material 464 SUPPLEMENT. testimony in the case, that there was not sufficient evidence of a loss of the wife's services to enable the plaintiff to maintain this action. The judge ruled that, as there was no evidence to support the count charging the defendant with seducing the plaintiff's wife, and as the evidence applicable to the counts for assault and rape proved that no loss of service was caused to the plaintiff, the action could not be maintained ; and directed a verdict for the defendant. The plaintiff alleged exceptions. The case was argued at the bar, in November, 1878, by A. Muss ^ H. B. Sargent, Jr., for the plaintiff, and by W. P. Harding, for the defendant ; and was afterwards submitted on briefs by the same counsel. W. Allen, J. The plaintiff cannot maintain this action for an injury to the wife only ; he must prove that some right of his own in the person or conduct of his wife has been violated. A husband is not the master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium, — the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal rela- tion. Some acts of a stranger to a wife are of themselves inva- sions of the husband's right, and necessarily injurious to him ; others may or may not injure him, according to their conse- quences, and, in such cases, the injurious consequences must be proved, and it must be shown that the husband actually lost the company and assistance of the wife. This is illustrated in the statement of injuries to a husband in 3 Bl. Com. 139, 140, where such injuries are said to be principally three : " abduction, or tak- ing away a man's wife ; adultery, or criminal conversation with her; and beating or otherwise abusing her." The first two are of themselves wrongs to the husband, and his remedy is by action of trespass vi et armis. In regard to the others, the author's words are : " If it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly : but if the beating or other maltreat- ment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of the wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill usage, per quod BIGAOUETTE V. PAULET. 465 consortium amisit; in which he shall recover a satisfaction in damages." He states, as one of the circumstances affecting the damages in an action for adultery, " the seduction or otherwise of the wife, founded on her previous behavior and character." It is usual in actions for criminal conversation to allege the seduction of the wife, and the consequent alienation of her affec- tions, and loss of her company and assistance, and sometimes of her serviced ; but these are matter of aggravation, except so far as they are the statement of a legal inference from the fact itself, and actual proof of them is not necessary to the husband's right of action. The loss of the consortium is presumed, although the wife may have herself been the seducer, or may not have been living with the husband. A husband who is living apart from his wife, if he has not renounced his marital rights, can maintain the action, and it is not necessary for him to prove alienation of the wife's affection, or actual loss of her society and assistance. See Chambers v. Caulfield, 6 East, 244 ; "Wilton v. Webster, 7 C. & P. 198 ; Yundt v. Hartrunft, 41 111. 9. The essential injury to the husband consists in the defilement of the marriage bed, — in the invasion of his exclusive right to marital intercourse with his wife, and to beget his own children. This presumes the loss of the consortium with his wife, of comfort in her society in that respect in which his right is peculiar and exclusive. Although actions of this nature have generally been brought where the alienation of the wife's affections, and actual deprivation of her society and assistance, have been the prominent injury to the husband, yet it is plain that the seduction of the wife, inducing her to violate her conjugal duties, and the injuries arising from that, are not the foundation of the action. The original and ap- proved form of action is trespass vi et armis, and though this form was adopted when the act was with the consent of the wife, it was for the reason, as given by Chief Justice Holt, that " the law in- dulges the husband with an action of assault and battery for the injury done to him, though it be with consent of his wife, because the law will not allow her a consent in such case to the prejudice of her husband, because of the interest he has in her." Rigaut v. Gallisard, 7 Mod. 78 ; 2 Ld. Raym. 809 ; Holt, 50. See also Bac. Abr. Trespass, C, 1, and Marriage, P, 2 ; 2 Chit. PI. (13th Am. ed.) 855; Reeves's Dom. Rel. 63. The fact that trespass, and not case, was the form of action, even when the wrong was ac- 466 SUPPLEMENT. complished by the seduction of the wife, for the reason that the wife was deemed incapable of consent, and " force and violence were supposed in law to accompany this atrocious injury," indi'- cates that the cause of action arose from acts committed upon the person of the wife, and not from influences exerted upon her mind, — that the corrupting of the body rather than the mind of the wife was the original and essential wrong to the husband. We think that this action may be maintained upon the evidence offered, not for the actual loss of comfort, assistance, society, and benefit, alleged in the second and fourth counts as consequences of the assaults set forth in them, but for the loss of the consortium with the wife which is implied from criminal conversation with her whether with or against her will. Exceptions sustained. Gut v. Livesby. (2 Cro. Jao. 501. Court of King's Bench, 1618.) Husband's Action for Damages in Consequence of Assatdt and Battery to Wife. Trespass of Assault and Battery : For that the defendant did assault, beat, and wound the plaintiff ; neo nan for that he assaulted and beat the wife of the plaintiff, per quod consortium uxoris suae for three days amisit: The defendant pleaded Not guilty, and it was found against him in both, and damages assessed to 80?. (it being in truth a great battery to the Baron'), and the damages given, for that the plaintiff 's wife went with the defendant and lived with him in suspicious manner. And it was now moved in arrest of judgment that the Baron ought not to ijoin the bat- tery of his Feme with the battery which was done unto himself ; and he cannot have an action for the battery of his Feme, but ought to join his Feme with him in the action ; for the damage done to the Feme, she ought to have (if she survive her husband) ; and so the defendant may be twice punished for one and the same battery, if the plaintiff here should recover ; for this recovery of the Barons shall not bar her of bringing her action, if slie survive him; wherefore if the Baron will bring the action, he ought to have joined his Feme with him. But all the Court held that the action was well brought ; for the action is not brought in respect BAKEE V. BOLTON. 467 of the harm done to the Feme, but it is brought for the particular loss of the husbands, for that he lost the company of his wife, which is only a damage and loss to himself, for which he shall have this action, as the master shall have for the loss of his ser- vants service; and a precedent was shown in 28 Bliz. Rot. in this Court, where one Cholmley brought an action for the battery of his Feme, per quod negotia sua infecta remanserunt ; and had judgment to recover. And another precedent was cited to be in the Exchequer in Doylies case, that such an action was adjudged good. Wherefore it was adjudged here that the plaintiff should recover. Baker v. Bolton. (1 Camp. 493. Court of King's Bench at Nisi Prius, 1808.) HusbancPs Action for Damages in Consequence of Personal Injuries to Wife, causing her Death. This was an action against the defendants as proprietors of a stage-coach, on the top of which the plaintiff and his late wife were travelling from Portsmouth to London, when it was over- turned ; whereby the plaintiff himself was much bruised, and his wife was so severely hurt that she died about a month after in a hospital. The declaration, besides other special damage, stated, that " by means of the premises, the plaintiff had wholly lost, and been deprived of the comfort, fellowship, and assistance of his said wife, and had from thence hitherto suffered and undergone great grief, vexation, and anguish of mind." It appeared that the plaintiff was much attached to his deceased wife, and that, being a publican, she had been of great use to him in conducting his business. But, Lord Bllenborough said, the jury could only take into consider- ation the bruises which the plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil court, the death of a human being could not be complained of as an injury ; and in this case the damages as to the plaintiff 's wife must stop with the period of her existence. Verdict for the plaintiff, with lOOZ. damages. 468 SUPPLEMENT. Capel V. Powell. (17 C. B. N. 8. 743. Court of Common Pleas, 1864.) Husband's Liability for Wife's Tort. — After Decree for Dissolution of Marriage. This was an action for an assault and false imprisonnaent. The declaration stated that the defendant Caroline Nickel, sued as Caroline Powell,, at and during the time she was the wife of the defendant Ellison Powell, unlawfully gave the plaintiff into the custody of a policeman, on a false charge of felony, etc., etc. The defendant Caroline Nickel pleaded, first, not guilty ; sec- ondly, a justification. The other defendant pleaded that at the time of the commence- ment of the action the said Caroline Nickel was not his wife. The plaintiff new-assigned that the trespasses complained of were committed by the said Caroline Nickel whilst she was the wife of the said Ellison Powell. To this the defendant Ellison Powell pleaded, that, at the time of the commencement of the action, the said Caroline Nickel was not his wife. Issue thereon. At the trial, before Martin, B., at the last Summer Assizes at Kingston, the female defendant did not appear. It was proved on the part of the defendant Ellison Powell, that, at the time the transaction complained of took place, Caroline Nickel and himself were living apart by mutual consent, and that before the com- mencement of the action he had obtained a decree for dissolution of the marriage under the 20 & 21 Vict. c. 85. The learned judge was of opinion that the plea was an answer to the action ; and he desired the jury to assess the damages against the female defendant, reserving leave to the plaintiff to move to enter the verdict against the other defendant, if the Court should be of a contrary opinion. Daly, on a former day in this term, obtained a rule calling upon the defendant Ellison Powell to show cause why judgment should not be entered against him for 50Z. non obstante veredicto, on the ground that the husband's liability for the tortious act of the wife during coverture is not discharged by a decree dissolving the mar- riage on the ground of adultery. He referred to the 25th and 26th sections of the 20 & 21 Vict. c. 85. CAPEL V. POWELL. 469 HawJcins, Q. C, and Sir G-. Honyman, now showed cause. This action is not maintainable against the male defendant. In all cases where the husband is sued with his wife in respect of con- tracts made by her or torts committed by her before the marriage, he is merely joined for conformity : if he dies before judgment, the right of action survives as against the wife. In 1 Chitty on Plead- ing, ed. 1844, p. 104, it is said : " Actions for torts committed by a woman before her marriage must be brought against the husband and wife jointly. Bac. Abr., Baron and Feme (L); Co. Litt. 351 b ; Com. Dig., Baron and Feme (Y). For torts committed by the wife during coverture, as for slander, assaults, etc., or for any forfeiture under a penal statute, they must also be jointly sued. 1 Hawk. P. C. 3, 4 ; Bac. Abr., Baron and Feme (L). A person may sue husband and wife jointly for her libel or slander, although she may have committed adultery, and they live separate, but have not been divorced a vinculo matrimonii. Head v. Briscoe, 5 C. & P. 484 (E C. L. R. vol. 24). In an action of trespass against hus- band and wife for her tort before coverture, or a wrong committed by her alone during the coverture, if she die before judgment, the suit will abate ; but, if the husband die or become bankrupt, her liability will continue. Middleton v. Croft, Rep. temp. Hardw. 395, 399." The husband cannot after her death be sued for a tort committed by the wife. A divorce a vinculo matrimonii is for this purpose the same as death. The relation of husband and wife has in that case ceased to all intents and purposes. The 25th and 26th sections of the 20 & 21 Vict. c. 85, have been relied on to show that protection was only intended to be given to the husband quoad bygone transactions in the case of a judicial sepa- ration. But the answer to that is obvious : it was necessary to make such a provision in the case of a judicial separation, because the relation of husband and wife still subsists, though the marital obligations are suspended ; but no such provision could be needed where the marriage is altogether dissolved. In Head v. Briscoe, Tindal, C. J. says : " There is no doubt in point of law that a husband, so long as the relation of husband and wife con- tinues, is answerable to a third person for what is done by the wife. And, whether their separation be permanent or temporary, it does not affect the question unless it operates so upon the marriage as to make the civil relation cease; for, by the law of England, you cannot bring an action against the wife without joining the hus- 470 SUPPLEMENT. band ; and a man would be without remedy if he could not sue the husband." Here, the plaintiff is not without remedy." There is no impediment in the way of his suing the wife, who is to all intents and purposes a single woman. Head v. Briscoe came before the full court (2 Law J., n. s., 0. P. 101), when the ruling of Tindal, C. J., was sustained. This was probably the reason why the pro- visions contained in the 25th and 26th sections were inserted in tlie Divorce Act. Baly and Houston, in support of the rule. The husband is clearly liable for the tortious acts of his wife during coverture. Bac. Abr., Baron and Feme (L). A divorce a vinculo, or a sentence of disso- lution of marriage, exonerates the husband from the consequences of acts done by the wife after sentence, but not before. Death of the wife dissolves the liability, upon the principle that actio per- sonalis moritur cum persona. The death of the wife is the act of God. Divorce is the act of the party. [Brlb, C. J. Marriage does not give a cause of action against the husband. Whilst the husband lives and the relation continues, he must be joined in all actions for his wife's debts and trespasses. If the husband dies, the action goes on against the wife. If the wife dies, the action abates, — because the husband is not liable.] Before the sentence of dissolu- tion was pronounced here, the plaintiff had a vested right of action. [Eele, C. J. Against the wife, not against the husband. The sepa- rate existence of the wife is wholly ignored during coverture. In Marshall v. Rutton, 8 T. R. 545, 548, Lord Kenton puts the state of widowhood and divorce a vinculo matrimonii in the same category. Keating, J. — It is difificult to see any reason why the husband should be joined for conformity after the dissolution of the mar- riage.] When the case of Head v. Briscoe was decided, there were no means of dissolving a marriage but by an act of Parliament. Eele, C. J. — I am of opinion that this rule should be dis- charged. I think the husband who has obtained a decree of dissolution of marriage is not liable to be sued for a wrong com- mitted by the wife whilst the coverture existed. Upon this point, the law seems to me to be perfectly clear. During coverture the wife has no such existence as to enable her to be a suitor in her own right in any court ; neither can she be sued alone. For any wrong committed by her she is liable, and her husband cannot be sued without her; neither can she be sued without joining her hus- band. Seeing that all her personal property is vested in the hus- MONTAGUE V. BENEDICT. 471 band, it would be idle to sue the wife alone : the action would be fruitless. Where the husband is joined for conformity, if he dies, the action goes on against the wife ; but if the wife dies, the action abates. It is clear to demonstration, therefore, that there is no cause of action against the husband. He is not liable for the wrong ; but he is joined only by reason of the universal rule that the wife during coverture cannot be either a sole plaintiff or a sole defend- ant. The reason does not apply where there has been a divorce a vinculo matrimonii. The woman is then no longer under coverture. She is remitted to her former name and station, and is perfectly capable of suing and being sued, as if she never had been married : consequently, the necessity for joining the husband no longer exists. One can well recognize the expediency of making a legis- lative provision for the case of a decree of judicial separation ; for, there, notwithstanding the sentence, the relation of husband and wife is not entirely dissolved. But there was no need of legisla- tion in the case of a sentence which dissolves the marriage. Head V. Briscoe, 5 C. & P. 484, is a distinct decision of a very learned •judge to that effect. By a divorce a vinculo, or a sentence of dissolution, the husband'is altogether exonerated from the respon- sibilities which the marriage entailed upon him. Keating, J. I am entirely of the same opinion. The moment it is established that the sole liability of the husband in respect of wrongs committed by the wife is to be joined for conformity in the action against her, it follows as a necessary consequence that the dissolution of the relation of husba'nd and wife, by putting an end to the state of things which caused the necessity for joining him, discharges him from that liability. JRule discharged. Montague v. Benedict. (3 B. & C. 631. Court of King's Bench, 1825.) Husband's Liability for Wife's Necessaries. Assumpsit for goods sold and delivered. Plea, general issue. At the trial before Abbott, 0. J., at the Middlesex Sittings after Trinity Term, 1824, it appeared that the plaintiff was a working jeweller, and the defendant a special pleader in considerable prac- 472 SUPPLEMENT. tice. The plaintiff, between the 20th of October and the 14di of December, 1823, had delivered to the wife of the defendant, at his house in Guilford Street, different articles of jewelry, amounting in the whole to the sum of 8Sl., and had received from her on account 3il. These things were usually delivered about twelve o'clock in the day, and plaintiff never saw any person but the defendant's wife. Upon these facts being proved, the defendant's counsel contended that the plaintiff ought to be nonsuited, because there was no evidence to show that the husband had any knowl- edge that the goods had been delivered to his wife, and conse- quently no evidence of his assent to the purchase, and Metcalfe v. Shaw, 3 Campb. 22, Waithman v. Wakefield, 1 Campb. 120, and Bentley v. Griffin, 5 Taunt. 356, were cited. The Lord Chief Justice thought it a question for the jury whether the articles had been supplied with the assent of the husband. The defendant proved that he was married in September, 1817, and that the for- tune of his wife was less than 4000Z., and that she received, by virtue of her marriage settlement, for her exclusive use, a sum of 601. annually ; that they inhabited a ready-furnished house in Guilford Street, at the rent of 2001. a year ; that the furniture of it was not new or expensive, some of it indeed being very shabby ; that the defendant kept no man-servant ; that his wife, before October, 1823, had jewelry suitable to her condition, and that she had never, in her husband's presence, worn any of the articles furnished by the plaintiff. The defendant usually left his house and went to his chambers about ten o'clock in the morning, and did not return before five in the evening. When the plaintiff or his servant called at the defendant's house, they always asked for his wife, and not for him ; and upon one occasion, when the clerk called in March, and stated to the female servant who opened the door, that he called for the purpose of getting settled a bill for jewelry to the amount of 80Z., the servant expressed her surprise that the plaintiff had trusted her mistress for such a sum, and said she was sure that her master knew nothing of it, and she swore that the clerk replied, " His master was aware of that." This, however, was denied by the clerk. The Lord Chief Justice told the jury, that a husband was not liable for goods supplied to his wife unless he gave her an express or implied authority to purchase. In considering the question of authority, the estate and degree of the parties was a fit subject for consideration, and MONTAGUE V. BENEDICT. 473 SO also was the nature of the articles. There were some things which it might and must always be presumed the wife had author- ity to buy, such as provisions for the daily use of the family over which she presided ; but in this case the articles were not neces- sary to any one ; the proof was, that the husband never saw them, and the juf-y were to say, under these circumstances, whether the wife of the defendant had any authority from him to make a con- tract for the articles in question. The jury found for the plaintiff to the amount of his bill. A rule nisi had been obtained for a nonsuit, on the ground that there was no evidence to be left to the jury of the husband's assent to the contract ; or for a new trial, on the ground that the verdict was against the weight of evidence. Piatt showed cause. It was a question for the jury, upon the evidence, whether the articles provided for the wife of the defend- ant were necessaries suitable to the degree and estate of the hus- band. The latter is responsible, in respect of the contracts made by the wife, for goods suitable to that condition which he suffers her to hold out to the world. It is not necessary to show an ex- press assent of the husband to the contract, or that the articles provided were worn in his presence. If they were conformable to the apparent condition of the husband, his assent is to be pre- sumed. Here there was abundant evidence to go to the jury, that the things provided were necessaries suitable to the degree of the husband, for it appeared that he lived in a ready-furnished house, the rent of which was 200Z. per annum, and that his wife had originally a fortune of 4000Z., and if they were necessaries suitable to the degree of the husband, then cohabitation was evi- dence of his assent to the contract made by his wife. He cited Morton v. Withy, Skinner, 348. Scarlett and Crurney, contra. It appeared upon the trial 1;hat the plaintiff, in the course of two months, had delivered to the defendant's wife articles of jewelry amounting to 88Z., and that before that time she had articles of that description suitable to her degree. The things provided by the plaintiff, therefore, were not necessaries. There was no evidence of any assent (express or implied) of the husband, to the purchase made by the wife. Cohabitation is only prima facie evidence of such assent, and here it was rebutted by the evidence given • on the part of the defendant. 474 SUPPLEMENT. Batlet, J. It seems to me, that in this case there was no evi- dence to go to a jury to entitle the plaintiff to a verdict. I take the rule of law to be this : if a man, without any justifiable cause, turns away his wife, he is bound by any contract she may make, for necessaries suitable to her degree and estate. If the husband and wife live together, and the husband will not supply her with necessaries, or the means of obtaining them, then, although she has her remedy in the Ecclesiastical Court, yet she is still at lib- ' erty to pledge the credit of her husband for what is strictly neces- sary for her own support. But whenever the husband and wife are living together, and he provides her with necessaries, the husband is not bound by contracts of the wife, except where there is reasonable evidence to show that the wife has made the con- tract with his assent. Btherington v. Parrott, Ld. Raym. 1006. Cohabitation is presumptive evidence of the assent of the husband, but it may be rebutted by contrary evidence ; and when such as- sent is proved, the wife is the agent of the husband duly author- ized. Then the question is, was there any evidence in this case to warrant my Lord Chief Justice in submitting, as a question for the consideration of the jury, whether the wife had the authority of the husband to make this purchase ? It appears that the wife had originally a fortune under 4000?., that would yield an in- come less than 200Z. per annum. There was no evidence on the part of the plaintiff to show that she had a fortune even to that extent ; that fact afterwards appeared upon the defendant's evi- dence. Then is it to be presumed, that a husband working hard for the maintenance of himself and family, keeping no man-ser- vant, and living in a house badly furnished, would authorize his wife to lay out, in the course of six weeks, half of her yearly in- come in trinkets ? If the tradesman in this case had exercised a sound judgment, he must have perceived that this money would have been much better laid out in furniture for the house, than in decking the plaintiff's wife with useless ornaments, which would so ill correspond with the furniture in the house. I think, at all events, there was gross negligence on the part of the plaintiff, if he ever intended to make the husband responsible. If a trades- man is about to trust a married woman for what are not neces- saries, and to an extent beyond what her station in life requires, he ought, in common prudence, to inquire of the husband if she has his consent for the order she is giving ; and if he had so in- MONTAGUE V. BENEDICT. 475 quired in this case, it is not improbable that the husband might have told him not to trust her. But no such inquiry was made ; on the contrary, the plaintiff always inquired for the wife, and that is strong evidence to show tliat she was the person trusted, and not the husband. On the whole, I think that the plaintiff did not make out, by reasonable evidence, that the wife had any authority to make the purchase in question. HoLROYD, J. I think the plaintiff ought to have been nonsuited. If the plaintiff had made a claim in respect of necessaries pro- vided for the defendant's wife, the case would have stood upon a very different ground ; but I think, upon the evidence, it appeared that the things provided were not necessaries. They consisted of articles of jewelry, and the wife had upon her marriage been supplied with a sufiiciency of such things, considering her sit- uation in life. Undoubtedly the husband is liable for necessa- ries provided for his wife, where he neglects to provide them himself. If, however, there be no necessity for the articles pro- vided, the tradesman will not be entitled to recover their value, unless he can show an express or implied assent of the husband to the contract made by the wife. Where a tradesman takes no pains to ascertain whether the necessity exists or not, he sup- plies the articles at his own peril ; and if it turn out that the necessity does not exist, the husband is not responsible for what may be furnished to his wife without his knowledge. Where a tradesman provides articles for a person whom he knows to be a married woman, it is his duty, if he wishes to make the husband responsible, to inquire if she has her husband's authority or not ; for where he chooses to trust her, in the expectation that she will pay, he must take the consequence if she does not. If it turn out that she did act under the authority of her husband when she gave the orders, he will be liable, but otherwise he will not. If we were to hold that he would, no man in any case would be safe if the wife chose to say that she had the authority of her husband, I think that the burden of the proof of the assent of the husband lies on the party who provided the goods, and who acted upon the supposed authority. In this case, it appears to me that the proof was to the contrary, and that it negatived all presumption of as- sent on the part of the husband. I think, therefore, that the plaintiff did not make out a case to entitle him to recover. LiTTLEDALE, J. I agree in thinking that a nonsuit must be 476 SUPPLEMENT. entered. The husband is not liable in respect of a contract made by his wife without his assent to it, and a party seeking to charge him in respect of such a contract is bound either to prove an ex- press assent on his part, or circumstances from which such assent is to be implied. Then was there any express assent in this case ? So far from that, it appears that no application was made to the defendant for several months after the articles had been deliv- ered ; but the plaintiff always called when he knew the defend- ant was from home ; and always asked for the wife. There was, therefore, no express assent of the husband. Then can we say that there was any implied assent ? There are many cases in which the assent of the husband may be presumed. In Comyns' Digest, tit. Baron and Feme (Q), it is laid down, that if the wife trades in goods, and buys for her trade when she cohabits with her husband, his assent is to be presumed ; and if a wife buy neces- sary apparel for herself, the assent of the husband shall generally be intended. But here the apparel provided consists of articles of ornament of considerable value. It does not appear, considering the defendant's occupation, and his wife's fortune, that articles of jewelry to that amount can be considered as necessary apparel, and one reason is, because the wife had articles of that descrip- tion provided for her when she married, and there is no evidence to show that the husband ever saw the wife wearing these articles and if he did not, then there is nothing to show any implied assent. Abbott, C. J. I entirely agree with the opinion which has been delivered by my learned brothers, and I think the rule for a non- suit ought to be made absolute. If this decision should have the effect of introducing somewhat more caution into the conduct of those who are to obtain their living by selling their goods and wares, it will be most beneficial. It will occasionally be beneficial to infants, to fathers, to husbands, and to friends ; it will also be beneficial to those who have goods to sell, for the experience we have in courts of justice leads us to know that persons who trade without due caution often find their hopes deceived ; they find in the result, that they have parted with goods for which they never can obtain the money. The rule must be made absolute. Rule absolute for a nonsuit. SEATON V. BENEDICT. 477 Sbaton V. Benedict. (5 Bing. 28. Court of Common Pleas, 1828.) Husband's Liability for Wife's Necessaries. Assumpsit for goods sold and delivered. The defendant pleaded the general issue, except as to lOL, which he tendered and paid into court. By a bill of particulars, it appeared that the plaintiff 's demand amounted to 2^1. 5s. Qd., for kid gloves, ribbons, muslins, lace, silks, and silk stockings, thirteen pair of which, of a very expen- sive description, were charged for, as having been delivered on one day. At the trial before Buerough, J., Middlesex Sittings after Hil- ary Term last, it appeared that the defendant, a gentleman in the profession of the law, was, at the time when the plaintiff furnished the goods, living with his wife at Twickenham, and had supplied her wardrobe well with all necessary articles ; that the plaintiff, a tradesman at Richmond, had, without the defendant's knowl- edge, furnished the defendant's wife with the articles for which this action was brought, the greater part of which were delivered to her in the plaintiff's shop, and the remainder into her own hand at the defendant's door. It did not appear that the defendant had seen her wear any of them, except, perhaps, the gloves, and some of the silk stockings, the price of which did not amount to lOZ. On behalf of the defendant, it was contended that these arti- cles were not necessary for the wife of a person in his degree ; that no actual authority for them had been proved ; and that an authority could not be implied for the purchase of anything but necessaries. The learned Judge told the jury that he should have been of this opinion, but for the plea of tender ; that plea admitted that the wife had authority to purchase some of the articles ; and as it was not stated in respect of which of them the tender had been made, it must be taken to apply to all, admitting the authority to purchase them all, and contesting only the price at which they were charged. 478 " SUPPLEMENT. A verdict, therefore, was taken for the plaintiff for 18?. 5s. Qd., with leave for the defendant to move to set it aside, if the learned Judge should be thought to have given an effect to the tender which it ought not to have. Wilde, Serjt., accordingly obtained a rule nisi for a new trial, on the ground that the goods furnished were not necessaries, and that no authority could be implied from the tender except an authority to purchase goods to the extent of 101. Taddy, Serjt., showed cause, and cited Bennett v. Francis, 2 B. & P. 650 ; Montague v. Benedict, 3 B. & C. 631 ; Holt v. Brien, 4 B. & A. 252 ; Bartley v. Griffin, 5 Taunt. 356. Wilde referred to Cox v. Parry, 1 T, K. 464; Black- burne v. Schoales, 2 Campb. 341 ; Btherington v. Parrott, 1 Salk. 118. Best, C. J. I think there ought to be a new trial in this case. The learned Judge left the point correctly to the jury, but gave too much effect to the payment of money into court. Indepen- dently of this, the defendant, in point of law, was entitled to a verdict. A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them. If he supplies her properly, she is not his agent for the purchase of an article, unless he sees her wear it without disapprobation. In the present case the husband fur- nished his wife with all necessary apparel, and he was ignorant that she dealt with the plaintiff. No article was delivered in his presence, nor was there distinct proof that any had been worn. If, therefore, money had not been paid into court, the defendant was clearly entitled to a verdict. What, then, is the effect of that payment ? If the money had been paid in on the first items of the bill, an authority to contract at the date of these items would have been acknowledged, — an authority which could not afterwards have been retracted but by express notice. But there is no evidence to show that the money was not paid in on the last items ; and if so, there was no agency for the first. The payment into court, therefore, recognizes no agency beyond the amount of . lOZ. And if so, there is no pretence for supporting this verdict. It may be hard on a fashionable milliner that she is precluded from supplying, a lady without previous inquiry into her authority. The Court, however, cannot enter into these little delicacies, but BEETLES V. NUNAN. 479 must lay down a rule that shall protect the husband from the ex- travagance of his wife. Gaselee, J. It is difficult to lay down an abstract rule with respect to the liability of the husband ; but on the subject of the payment of money into court I entertain no doubt. Payment into court generally in assumpsit admits nothing beyond the amount of the sum paid in. Where, indeed, there is a special contract, the payment into court admits that contract ; but where, as in the common indebitatus assumpsit, the demand is made up of several distinct items, the payment admits no more than that the sum paid in is due. In Cox v. Barry, Blackburn v. Schoales, and Bennett v. Francis, the claim arose on a single transaction. On these grounds, it seems to me that too much weight was attached to the circumstance of the payment into court. The jury were probably embarrassed by it, and the verdict ought not to stand. Hule absolute. Beetles v. Nunan. (92 N. Y. 152. Court of Appeals of New York, 1883.) Conveyance to Husband and Wife. Estate by the Entirety. Eael, J. On the 1st day of August, 1868, certain land, which is the subject of this controversy, was conveyed by deed to Cornelius Day and Hannah Day, his wife, and to their heirs and assigns ; and the sole question for our determination is whether the grantees took the land as tenants in common, or whether each took and became seized of the entirety. By the common law, when land was conveyed to husband and wife, they did not take as tenants in common, or as joint tenants, but each became seized of the entirety, per tout, et nan per my, and upon the death of either the whole survived to the other. The survivor took the estate, not by right of survivorship simply, but by virtue of the grant which vested the entire estate in each grantee. During the joint lives the husband could, for his own benefit, use, possess, and control the land, and take all the profits thereof, and he could mortgage and convey an estate to continue during the joint lives, but he could not make any disposition of 480 SUPPLEMENT. the land that would prejudice the right of his wife in case she survived him. This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law, and to society. In 1 Blackst. Com. 442, the learned author says : " Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquired by the mar- riage. I speak not, at present, of the rights of property, but of such as are merely personal. For this reason a man cannot grant anything to his wife or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself." They were not allowed to give evidence against each other, mainly because of the union of person, for if they were admitted to be witnesses for each other they would contradict one maxim of the common law, Nemo in propria causa testis esse debet ; and if against each other, they would contradict another maxim. Nemo tenetur se ipsum accusare. As one of the consequences of the same rule, the husband was made responsible to society for his wife. He was liable for her torts and frauds, and, in some cases, for her crimes. This, and the other rules regulating the effect of marriage at common law, were not designed to degrade and oppress the wife. Blackstone (2 Com. 445) says : " Even the disabilities which the wife lies under are, for the most part, intended for her protection and benefit ; so great a favorite is the female sex of the laws of England." The common-law rule as to the effect of a conveyance to husband and wife continued in force, notwithstanding the Re- vised Statutes, which provided that " every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be in joint tenancy." 3 R. S. 2179 (7th ed.) ; Dios v. Glover, 1 Hoff. Ch. 71 ; Torrey v. Torrey, 14 N. Y. 430 ; Wright v. Saddler, 20 id. 320. In the latter case, Comstock, J. said : " It appears to be well settled that this statute does not apply to the conveyance of an estate to husband and wife. They are regarded in law as one person." BEETLES V. NUNAN. 481 But the claim is made that the legislation in this State, in the years 1848, 1849, 1860, and 1862, in reference to the rights and property of married women, has changed the common-law rule so that now, when land is conveyed to husband and wife, they take as tenants in common, as if unmarried. In construing these statutes the rule must be observed, and usually has been observed, that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. Section 8 of chapter 200 of the Laws of 1848, as amended by chapter 375 of the Laws of 1849, provides that " any mar- ried female may take by inheritance or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, or any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and With like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, or be liable for his debts." It is not the effect of this section, and plainly was not its purpose, to change the force and operation of a conveyance to a wife. It does not enlarge the estate which a wife would otherwise take in land conveyed to her, and whatever the effect of a conveyance to a husband and wife was prior to that statute, so it remains. If the operation of such a conveyance was to convey the entire estate to each of the grantees, so that each became seized of the entirety, there is nothing in the force or effect of the language used to change the operation of such a deed so as to make the grantees tenants in common. The section gives the wife no greater right to receive convey- ances than she had at common law, but its sole purpose was to secure to her during coverture, what she did not have at com- mon law, the use, benefit, and control of her own real estate, and the right to convey and devise it as if she were unmarried. By section 1 of the act (chapter 90 of the Laws of 1860) it is provided that "the property, both real and personal, which any married woman now owns as a sole and separate property ; that which comes to her by descent, devise, bequest, gift, or grant ; that which she acquires by her trade, business, labor, or services, carried on or performed on her sole and separate acconnt ; that 31 482 SUPPLEMENT. which a woman married in this State owns at the time of her marriage, and the rents, issues, and profits of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected, and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts ; " and in section 3 of the act of 1860, as amended by the act chapter 172 of the Laws of 1862, it is provided that " any married woman possessed -of real estate as her separate property may bargain, sell, and con- vey such property, and enter into any contract in reference to the same, with the like effect, in all respects, as if she were unmarried." There is great plausibility in the claim that these provisions in the acts of 1860 and 1862 have reference only to the separate property of a wife, which she owns separate from her husband, and that they have no reference whatever to land conveyed to husband and wife, in which, by the common law, each became seized of the entirety. The language is not so strong and direct as that of the Revised Statutes, which provided that a grant to two or more persons shall create a tenancy in common, and which was yet held not to make husband and wife tenants in common. But it is not necessary now to determine that these provisions of law do not apply to lands conveyed to husband and wife, and we pass that question. It is sufficient now to hold that they do not limit or define what estate the husband and wife shall take in lands conveyed to them jointly. Their utmost effect is to enable the wife to control and convey whatever estate she gets by any conveyance made to her solely, or to her and others jointly. The claim is made that the legislation referred to has de- stroyed the common-law unity of husband and wife, and made them substantially separate persons for all purposes. We are of the opinion that the statutes have not gone so far. The legislature did not intend to sweep away all the disabilities of married women depending upon the common-law fiction of a unity of persons, as a brief reference to the statutes will show. The act of 1848 gave no express authority to a married woman to grant or dispose of her property ; such authority came by the act of 1849. The legislature clearly understood that the common-law unity of husband and wife and the disabilities dependent thereon still remained, notwithstanding those acts, because in 1860, by the act of that year, it empowered . a mar- BERTLES V. NUNAN. 483 ried woman to perform labor and to carry on business on her separate account, to enter into contracts in reference to her separate real estate, to sue and be sued in all matters having reldtion to her property, and to maintain actions for injuries to her person. Until 1867 (chap. 782) husbands retained their common-law right of survivorship to the personal property of their wives. It was not until chapter 887 of the laws of the same year that husband and wife could, in civil actions, be compelled to give evidence for or against each other; and in 1876 (chap. 182), for the first time, they could be examined in criminal proceedings as witnesses for each other ; and provision was first made in the Penal Code (§ 715) that they could, in criminal proceedings, be witnesses for and against each other. From this course of legislation it is quite clear that the legisla- ture did not understand that the common-law rule as to the unity of husband and wife had been abrogated by the acts of 1848, 1849, and 1860, and that whenever it intended an inva- sion of that rule, it made it by express enactment. Still more significant is the act chapter 472 of the Laws of 1880, which provides that " whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants, or as ten- ants by entireties, they may make partition or division of the same between themselves " by deeds duly executed under their hands and seals. Here the disability of husband and wife, growing out of their unity of person, to convey to each other, is recognized, as is also the estate by entireties created by a deed to them jointly. So the common-law incidents of marriage are swept away only by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is ex- pressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy. Although sec- tion 7 of the act of 1860 authorizes a married woman to main- tain an action against any person for an injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury; and so it was held, notwithstanding the acts of 1848, 1849, and 1860, that the com- moh-law disability of husband and wife growing out of their unity of person to convey to each other still existed. White v. Wager, 484 SUPPLEMENT. 25 N. Y. 333 ; Winans et al. v. Peebles et cd., 32 id. 423 ; Meeker v. Wright, 76 id. 262, 270. It is believed, also, that the common-law rule as to the liability of the husband for the torts and crimes of his wife are still substantially in force. We fail, therefore, to find any reason for holding that the common-law rule as to the effect of a conveyance to hus- band and wife has been abrogated, and this conclusion is sus- tained by considerable authority. In Goelet v. Grori, 31 Barb. 314, Sutherland, J., at Special Term, held that a lease for a term of years, euecuted to husband and wife, was unaffected by the acts of 1848 and 1849, and that husband and wife by con- veyances to them still took as tenants by the entirety. In Farmers and Mechanics' National Bank of Rochester v. Gregory, 49 Barb. 155, it was held at General Term that the statutes referred to had no relation to or effect upon real estate conveyed to husband and wife jointly, and that in the case of such a con- veyance, notwithstanding those statutes, they take as tenants by the entirety. Johnson, J. commenced his opinion by saying : " To my mind it is a very clear proposition that our recent stat- utes for the better protection of the separate property of married •women have no relation to or effect upon real estate conveyed to husband and wife jointly." That decision was rendered in 1867, and the conveyance which was there the subject of consideration was executed in 1864. In Miller v. Miller, 9 Abb. Pr. (N. S.) 444, Murray, J., at Special Term, in 1871, feeling bound by the decision last referred to, held that the common-law rule was applicable to a conveyance made to husband and wife in 1867. In Freeman v. Barber, 3 N. T. Sup. Ct. (T. & C.) 674, the same rule was applied in 1874 by the Supreme Court in the third department. The opinion of the court was written by Miller, P. J., in which he stated that he regarded the law as settled in this State that, in the case of a conveyance to husband and wife, they take, not as joint tenants or as tenants in common, but as tenants by entireties, notwithstanding the acts referred to. In Beach v. HoUister, 3 Hun, 519, decided in 1875, a similar decision was made. Gilbert, J., writing the opinion of the court, said : " These statutes operate only upon property which is exclu- sively the wife's, and were not intended to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly." In Ward BEETLES V. NUKAN. 485 V. Crura, 54 How. Pr. 95, decided in 1876, Van Vorst, J., at Special Term, held that, under a deed executed to husband and wife in 1872, both became seized of the entirety, although the wife paid the entire consideration of the conveyance. It is true that these decisions are not absolutely binding upon this court, but they settled the law in the Supreme Court. For twenty years after 1849 there was no decision or published opinion in this State in conflict with them, and they are, under the circumstances, entitled to great weight here. They un- doubtedly lay down a rule which has been followed and ob- served by conveyancers, and we have no doubt that property to the value of millions is now held under conveyances made in reliance upon the common-law rule as thus expounded. These decisions were never questioned in this State by any court until the decision in the case of Meeker v. Wright, which -was rendered in this Court in 1879 (76 N. Y. 262). In that case the learned judge writing the opinion reached the conclusion that the common-law rule governing conveyances to husband and wife had been abrogated by the modern legis- lation in this State. But that portion of the opinion was not concurred in by a majority of the judges. The views of that judge were very forcibly and ably expressed, and they have been carefully reconsidered. They do not convince us that the conclusions he reached should be adopted by thia Court. That case is supposed to have unsettled the law some- what in this State. In Feely v. Buckley, 28 Hun, 451, it was held upon its authority, by a divided court, that tenancy by the entirety is abrogated by the Married Women's Acts ; and upon the same authority it is said a siniilar holding was made in Zorntlein v. Bram, decided in the Superior Court of New York, in January of this year, by a divided court. It is also said that in Forsyth v. McCall, in the fourth department in June, 1880, and in Meeker v. Wright, after a new trial, in the third department, in April, 1882, it was decided that the common-law rule was not abrogated. (27 Albany Law Journal, 199.) And these decisions, together with the one which is now under review, are all the decisions made in this State since the case of Meeker V. Wright was in this Court which have come to our attention. Legislation similar to that which exists in this State, as to the rights and property of married women, exists in many of 486 SUPPLEMENT. the States of the Union, and the decisions are nearly uniform in all the other States where the question has arisen, that a conveyance to husband and wife has the common-law effect, notwithstanding such legislation. Without citing all, we call attention to the following cases and authorities : Bates v. Seeley, 46 Penn. St. 248 ; French v. Mahan, 56 id. 289 ; Diver v. Diver, id. 106 ; Fisher v. Peovin, 25 Mich. 350 ; McDuff v. Beau- chamy, 50 Miss. 531 ; Washburu v. Burns, 34 N. J. 18 ; Chandler V. Cheney, 37 Ind. 391 ; Morburgh v. Cole, 49 Md. 402 ; 33 Am. Rep. 266 ; Bennett v. Child, 19 Wis. 362 ; Robinson v. Eagle, 29 Ark. 202 ; 1 Washb. on Real Prop. (3d ed.) 577 ; Schouler on Husband and Wife, §§ 397, 398 ; 1 Bishop on the Laws of Married Women, 438, §§ 613, etc. ; 2 id. 284, § 284. In the last section the learned author says : " Under the late married women's stat- utes, the effect of which is to prevent any part of the wife's inter- est in her lands passing to her husband, the rule of the common law, by force of which the two became tenants by the entirety of lands conveyed to both, is not changed ; " and he says : " The reason for the doctrine, looking at the question in the light of legal principle, is, that the statutes which preserve to married women their separate rights of property do not have, or pro- fess to have, any effect upon the capacity of the wife to take property, or the manner of her taking it, but when she does take it they simply preserve the right in her, to her separate use, forbidding it to pass in part or in full to her husband under the rules of the unwritten law. If, then, land is conveyed to a husband and his wife, they take precisely as at the com- mon law, — that is, as tenants by the entirety." In Diver v. Diver, Strong, J. said : " But it is said the act of 1848, by de- stroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common ; that is, that such a deed conveys a different estate from that which the same deed would have created if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property, by removing it from under the dominion of the husband. To effect this object, she was enabled to own, use, and enjoy her property, if hers before marriage, as fully after marriage as be- BEETLES V. NUNAN. 487 fore, and the act declared that, if her property accrued to her after marriage, it should be owned, used, and enjoyed by her as her own separate property, exempt from liability for the debts and engagements of her husband. All this had in view the enjoy- ment of that which is hers, not the force and effect of the instru- ment by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment, that is, the enjoyment of the estate after it has vested in the wife." ^ At common law where the estate was conveyed to husband and wife, as above stated, the husband had the control and use of the property during the joint lives. It is unnecessary now to determine whether, under the Married Women's Acts in this State, the husband still has such a right in real estate conveyed to him and his wife jointly. It was said in some of the au- ttiorities cited that the statutes had changed that common-law rule, and that while husband and wife, in conveyances to them jointly, each took the entirety, yet that the land could not be sold for the husband's debts, or the use and profits thereof dur- ing their joint lives be entirely appropriated by him. It is not important in this case to determine what the relation of the wife to the land, in such a case, now is, during the life of her husband. It is said that the reason upon which the common-law rule under consideration was based has ceased to exist, and hence that the rule should be held to disappear. It is impossible, now, to determine how the rule, in the remote past, obtained a foot- ing, or upon what reason it was based, and hence it is impossi- ble now to say that the reason, whatever it was, ihas entirely ceased to exist. There are many rules appertaining to the ownership of real property originating in the feudal ages, for the existence of which the reason does not now exist, or is not discernible, and yet, on that account, courts are not authorized to disregard them. They must remain until the legislature abrogates or changes them, like statutes founded upon no rea- son, or upon reasons that have ceased to operate. It was never, we believe, regarded as a mischief, that under a conveyance to husband and wife they should take as tenants 488 SUPPLEMENT. by the entirety, and we have no reason to believe that it was within the contemplation of the legislature to change that rule. Neither do we think that there is any public policy which re- quires that the statute should be so construed as to change the common-law rule. It was never considered that that rule abridged the rights of married women, but rather that it en- larged their rights, and improved their condition. It would be against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as tenant in .common with her husband. If the rule is to be changed, it should be changed by a plain act of the legislature, applicable to future conveyances ; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the faith of the common-law rule. The courts certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished, and the best civili- zation of any age or country has grown up. We are, therefore, of opinion that the judgment should be afiirmed, with costs. All concur, except Danfoeth and Finch, JJ., who dissent upon the ground that the common-law doctrine was abrogated by the statutes which enable a wife to hold a separate estate, and for the reasons stated by the former in Meeker v. Wright, and his dissenting opinion in Schultz v. Schultz. Judgment affirmed. Tipping v. Tipping. (1 Peere Wms. 729. High Court of Chancery, 1721.) Wife's Personal Property. — Paraphernalia. A., by articles before marriage, covenanted for himself and hia heirs, with the wife's trustees, to lay out 3,500Z. in a purchase of land to be settled on the wife for her jointure, remainder to the first, etc. sons of that marriage in tail male successively, and died intestate without issue, leaving assets in fee descending to his nephew, who was his heir at law ; but the personal estate was not near sufficient for the payment of his debts. TIPPING V. TIPPING. 489 The widow, who was administratrix, brought her bill against the heir, to compel him to make good her jointure, and to have the deficiency of the personal supplied out of the real assets ; and having jewels, etc. which were her bona paraphernalia of the value of 200?. and upwards, the question was, whether they in the first place, and in ease of the real assets, should be liable to satisfy this covenant, since bona paraphernalia were personal estate, and the rule was said to be, that all the personal ought to be applied in exoneration of the real estate. Lord Chancellor. I take it that bona paraphernalia are not\V devisable by the husband from the wife, any more than heir-J looms from the heir, so that the right of the wife to the lonay paraphernalia is to be preferred to that pf a legatee. If the hus-/^ band by his will gives a lease or a horse, or any specific legacy, and leaves a debt by mortgage or bond in which the heir is bound, the heir shall not compel the specific legatee to part with his legacy in ease of the real estate ; but though the cred- itor may subject this specific legacy to his debt, yet the specific or any other legatee shall in equity stand in the place of the bond-creditor or mortgagee, and take as much out of the real assets as such creditor by bond or mortgage shall have taken from his specific or other legacy. Wherefore, if a legatee shall have this favor in equity, much more shall the wife be privileged with respect to her bona paraphernalia, which are preferred to • legacies. Indeed, were the rule of equity otherwise, a specific legatee should compel the application of the bona paraphernalia to pay any debt in favor and ease of his specific legacy. Whereas bona paraphernalia are liable only to debts, and in favor of cred- itors, not of an heir ; but any creditors by specialty are wholly unconcerned in this question, they being by reason of their bonds, etc. in all events secure, which must make it indifferent to them whether they are paid out of the real assets, or out of the bona paraphernalia ; for still they are sure of being paid ; and putting the creditors out of the case, the bona paraphernalia shall be retained by the wife. So the Lord Chancellor denied it to be a rule, that in all cases the personal is applicable in ease of the real estate; for it shall not be so applied if thereby the payment of any legacy will be prevented, much less where it will deprive the widow of her bona paraphernalia. 490 ' SUPPLEMENT. Whiton V. Snydee. (88 N. Y. 299. Court of Appeals of New York, 1882.) Wife's Personal Property. — Paraphernalia. Finch, J. The title to certain personal property is here in dispute between the representatives of the husband and wife respectively, and depends so largely upon the presumptions with which we approach the facts, as to compel their consideration and settlement at the outset of the inquiry. The property in dispute consisted of two certificates of deposit for $2,300, payable to Eliz- abeth Snyder, the wife ; a carriage ; an old clock ; three articles of the wife's wearing apparel ; and a cabinet picture of herself. At the date of her death all these things were in her possession, but whether as her sole and separate property, or as that of her husband, intrusted merely to her custody or use in virtue of the marital relation, becomes a question about which the parties dif- fer very widely, and the determination of which is quite essential to the case. It has long been the law that the possession of personal prop- erty draws with it a presumption of ownership. At common law, ■that presumption utterly failed in the case of a married woman, because as against her husband, asserting his marital rights, she could not own such property. Bl. Com., bk. 2, chap, 29, p. 435 ; Curtis V. Del., L. & W. R. R. Co., 74 N. Y. 122. The marriage vested in the husband the right to reduce to his possession and ownership the wife's choses in action, and gave him the title to her personal chattels at once and absolutely. Jaycox v. Caldwell, 51 N. Y. 398. And this proceeded upon the ground, which was always more logical than true, that the very being and existence of the woman was suspended during the coverture, or entirely merged or incorporated in that of the husband. But unjust rules slowly give way before advancing civilization. Very early the hardship of denying to the wife some degree of property in or control over her personal apparel, and the orna- ments befitting her station, was felt and appreciated. It seemed harsh and rude that the husband should own them as he did the collar of his dog or the harness of his horse, and some modified WHITON V. SNYDEK. 491 ownership and control was given to the wife, though still largely subservient to the title of the husband. The familiar phrase, bor- rowed from the civil law, bona paraphernalia, became the set- tled -description of the wife's personal clothing and ornaments, and indicated in them a modified property recognized and pro- tected to some moderate extent. Bl. Com., supra, 435 ; 11 Vin. Abr. 178. The husband could not devise them away, and after his death the widow could hold them as against his executors or legatees, but was obliged to surrender them to his creditors where there was a deficiency of assets. Even the presents given by him to her before marriage, such as jewels, rings, and pictures, could not afterward be saved from his creditors, although Lord Hard- wiCKB thought such a case was " unfortunate and very hard." Ridout V. Earl of Plymouth, 2 Atk. 104. And the paramount title of the husband was still preserved, since he could dispose of these articles absolutely in his own lifetime. Seymour v. Pre- silian, 3 Atk. 358 ; Graham v. Londonderry, id. 394. Our Re- vised Statutes relaxed somewhat the rule, and gave to the wife surviving the husband a title to her paraphernalia which his creditors could not assail. Curtis v. Del., L. & W. R. R. Co., supra. This common-law rule recognized the husband's title, solely from necessity and because the wife could not take. It practically gave her the use, and protected her in the enjoy- ment, of what was only not actually given, because it could not be. Even in equity, where a more liberal rule prevailed, the wife's paraphernalia were not considered as a gift to her sepa- rate use, because that would enable her to dispose of them ab- solutely, which was deemed contrary to the husband's intention. Graham v. Londonderry, supra. But the right of the wife, so far as it existed, rested upon the foundation of a gift, where the articles were provided by the husband. That right was described as an acquisition by the wife of a property in the husband's goods, and where it came from him without price or considera- tion, beyond affection and duty, it was a gift so far as a gift was possible. The separate and personal possession by the wife of articles specially fitted for and adapted to her personal use, and differing in that respect from household goods kept for the com- mon use of both husband and wife, would have drawn after it the presumption of an executed gift, if the property came from the husband, and of the wife's ownership, but for the disabilities of 492 SUPPLEMENT. the marital relation. Now that those disabilities are removed, the several existence and separate property of the wife recog- nized, and her capacity to take and hold as her own a gift in good faith and fairly made to her by her husband established^ it seems time to clothe her right with its natural and proper attributes, and apply to a gift to her, although made by her hus- band, the general rules of law unmodified and unwarped by the old disabilities of the marriage relation. Since the wife may take by gift from her husband as well as from others, and by purchase from any one, her separate and personal possession of specific ar- ticles must draw after it the presumption of ownership, and there is no longer reason for making her case exceptional, or excluding her from the operation of the general rule. Her wearing apparel and ornaments, given by her husband, pass into her personal and separate possession. Such is the intent with which they are given. They are made or selected with that view and for that plain purpose ; their very character and use implies a personal gift, and a separate possession in which the husband does not share. Such possession of articles adapted plainly to the wife's separate and personal use, and not that of the husband or family generally, and so actually used by her, in the absence of other facts contradicting the inference, must be held to denote her ownership of the property, either as purchased out of her own means, or given to her by her husband or others. As to articles of a different character, such as furniture and household goods, adapted to the use of and used by the family generally, and in their common possession, a different rule must apply. Although specific articles may be spoken of as the wife's, or as got for her, the difficulty of establishing an executed gift by showing a deliv- ery, or a separate and personal possession, remains. Such cases must stand upon their facts, and can rarely be brought within the range of a presumption of separate ownership. The title of the wife to her paraphernalia was distinctly recognized in Rawson B. Penn. R. R. Co., 48 N. Y. 212, and the doctrine there declared also answers a further contention of the appellant in the present case. The marriage of these parties took place before 1848, and under the old rules applicable to that relation. It is therefore argued, that, as to the property in the wife's possession as to which no date or period of acquisition is established by the proofs, the legal presumption is that she obtained it anterior to the act of WHITON v. SNYDEE. 493 1848, and that the referee erred in refusing so to find. If that presumption existed, it would still be true, as the case cited shows, that the wife would have had an equitable title, which, tinder the acts of 1860 and 1862, ripened at once into a legal right, and vested the property in her. But no such legal pre- sumption-attaches. The property being in the wife's separate and individual possession, at a time when her absolute ownership was possible, the latter presumption arises, and the party who seeks to repel it must prove the acquisition before the statutes relating to married women, and not ask the Court to presume it. Savage v. O'Neil, 44 N. Y. 301. The discord which the learned referee discerns between the cases of Rawson v. Penn. R. R. Co., and Curtis v. D., L. & W. R. R. Co., 74 N. Y. 116, exists only as to the fact of a gift. In the former case it was said to have been established, but in the latter, not. In the last, case no ques- tion of title arose as between husband and wife, and the trunk lost contained the husband's own apparel and that of his child, as well as that of his wife. She was treated as representing the husband, and her possession of the baggage as being his, and the subject of her separate and personal possession of a part of the articles does not appear to have arisen. The views thus expressed dispose of the questions of title pre- sented in the case before us, except as to the carriage and clock. The money represented by the certificate of deposit, payable to the order of the wife, was her money, held by the bank for her and payable only to her, or upon her direction. When or where she obtained it we do not know., nor is it at all material. It was in her separate and exclusive possession ; she received the inter- est upon it, and it was payable to her alone. The referee was right in sustaining her title to the certificates and the debt repre- sented thereby. The articles of clothing were also hers. It is shown that she bought them and had them in her possession, and they were of such a character as to make that possession personal in her, and exclude the inference of possession by the husband or of both in common. The carriage and clock, however, are articles of a different character. We cannot assign either to the personal possession of the wife alone. They were for the common use of both, adapted to such use, and the carriage appears to have been bought and paid for by the husband, while the clock ohce belonged to the wife's father ; but the manner of its transfer, or to whom, 494 SUPPLEMENT. does not appear. We should have great doubt about both of these articles but for one fact in the case. It appears that the defend- ant was brought before the surrogate to be examined as to his possession of any articles belonging to the estate of Mrs. Snyder. On that examination he swore that he had the carriage and clock in question, and that they were the property of the deceased wife. This evidence was objected to, and its admission is alleged as error, upon the ground that the defendant was administrator of his father and could not bind the estate by his admissions. Church V. Howard, 79 N. Y. 415. But he was sued as an indi- vidual. No claim was made against him as administrator, or against the estate which he represented. The inquiry was whether he was in possession of property belonging to the wife's estate. He admitted he had it, and promised to return it, and set up no claim as representative of his father. The proceeding against him, if he is treated as he was sued, merely as an indi- vidual, was one in which his answer was evidence against him- self. But if, because he was administrator, the proceeding for his examination must be treated as one against the estate which he represented, and his answer taken in that capacity, then cer- tainly his admission was made while engaged in the performance of an act relating to the estate. He stood there in a legal pro- ceeding, resisting claims to take away property of the estate, and answering legitimate inquiries relating to the subject of his trust, and his admissions were competent and part of the res gestce. Church V. Howard, supra. There was, therefore, before the ref- eree, in these sworn admissions of the defendant, evidence of the plaintiff's title which tended to contradict the inferences from Snyder's purchase of the carriage and his possession of the clock. There was also other evidence, as to the carriage, of declarations of the husband that his wife bought it and it was hers. On this state of the evidence, we are not at liberty to resist the referee's finding of title in the plaintiff. Exceptions were taken to the evidence of damages resulting from the detention of the certificates of deposit, and to the de- cision of the referee awarding them. It is said that an actual - demand was not proved on the ' trial, nor found by the referee, and no wrongful withholding of the carriage was shown. The , complaint, which was sworn to on June 28, 1879, alleges a formal demand and refusal. The answer does not deny, and therefore WHITON V. SNYDER, 495 admits it. The date of the demand is not shown further than that it was before the commencement of the action. The referee assumes the 2d of June, when the examination was had before the surrogate, as the date of the demand thus admitted, and allows as damages the difference between the lawful rate of in- terest and that paid upon the certificates from that date to that of the report. On that occasion the plaintiffs stood in the atti- tude of demanding a surrender of this property; the defendant so understood it, for it is proved that he said he should not turn it over unless he was obliged to ; and finally, through his counsel, promised to give it up, but did not. We think the damages were properly allowed, and their amount upon the evidence was a ques- tion of fact for the judgment of the referee. Evidence of the witness Buckley as to the value of the clock was objected to. He was a dealer in such articles and in decora- tive art goods, but had never seen the clock in dispute. It was described in a hypothetical question, and his opinion of its value asked. The first objection was that the inquiry assumed facts not proved. The contrary was the truth. Every item of the description was sworn to by one or more witnesses. It was said the witness had not seen the clock. That was true, but affected only the weight of his evidence and not his competency. It was objected that the inquiry was not confined to market value. We think it was. And, finally, his opinion as an expert was ques- tioned. We think he was competent to give an opinion of value, and his answer was properly received. Some other questions were raised not material to be considered. We discover no error in their disposition by the feree. The judgment should be affirmed, with costs. All concur, except Rapallo, J., absent. Judgment affirmed. 496 SUPPLEMENT. Caroline Abbey v. Deto, Je., as Sheripp op Ulster County. (44 N. Y. 343. Commission of Appeals of iffew York, 1871.) Contract between Husband and Wife for services of former. — Husband as Wife's Agent. — Claims of Husband's Creditors. Hunt, C. The plaintiff alleges that she carried on the flour and feed business in the summer of 1861, under the name of Stephen Abbey, Agent. Her husband she alleged to be her agent, and that as such he bought and sold and carried on the business for her. It was proved that, in making the purchases at Albany, the husband stated to the vendors that he was the agent of the plaintiff, and that the goods were charged to him as agent. The defendant insists that there was no evidence that the plain- tiff had employed or authorized her husband to make the purchases or transact business for her, and that the court should have so instructed the jury. On this point the proof was that Stephen Abbey professed to act for the plaintiff ; the son testified that he knew of his mother being engaged in business, commencing in 1861, and that she purchased goods in Albany ; that he was the bookkeeper and saw the bills ; that his mother often spoke to him about his remaining at home and remaining in the business ; she often spoke to him about being in her employment, and that he had his board and clothes for his services, and that suits in relation to the business were brought in his mother's name. Mr. Avery testified that he sold goods to the plaintiff in 1861, consisting of flour, corn, and oats ; and that Stephen was irre- sponsible, and had judgments against him, and that he gave the credit to the plaintiff. He identified the goods as a portion of those in question here ; and he testified that the plaintiff paid him $200 on account of the goods purchased of him. This payment was made by the check of " S. Abbey, Agent." He further says that he called on the plaintiff for the money, at the house, when both she and her husband were present, and that he gave the check for $200. If Mrs. Abbey, the plaintiff, had been sued by the Albany merchants for the price of goods thus sold to her, and ABBEY V. DEYO. 497 the above evidence had been given to prove the agency, it would have been quite satisfactory. No jury could have failed to find that her husband was her agent in purchasing the goods. In addition to this, it was found that the family consisted of the hus- band, the wife, who is the present plaintiff, two sons, one of whom was the clerk already mentioned, a daughter, and an aunt, all liv- ing together, as I infer, near to the place where the business was carried on. There was no contradictory evidence on this point of agency, and I think it warranted the inference that the husband was authorized by the wife to transact the business in question, and at the time of making the purchases. The act of March, 1860 (Laws of 1860, chap. 90, page 157), in its second section, provides as follows : " § 2. A married woman may bargain, sell, assign, and tranfers her separate personal prop- erty, and carry on any trade or business, and perform any labor or service, on her sole and separate account ; and the earnings of any married woman from her trade, business, labor, or services shall be her sole and separate property, and may be used and invested by her in her own name." In Knapp v. Smith, 27 N. Y. 278, Judge Denio says, that a married woman may cultivate her land and manage her personal property by means of any agency which any other owner of prop- erty might employ, and that the produce thereof and the increase of stock would be hers. The agency thus referred to in the case before him was that of her husband. In Gage v. Dauchy, 34 N. Y. 293, it was held that a wife might employ her husband to transact her business, and, although no agreement for his compensation was made between them, that the property would not thereby become subject to the payment of his debts. ^ In Buckley v. Wells, 85 N. Y. 518, it was decided that a mar- ried woman could manage her separate property through the agency of her husband, and was entitled to the profits of a mer- cantile business, conducted by her husband in her name, when the capital was furnished by her, and he had no interest but that of an agent. It was further held that the application of an indefinite portion of the income to the support of her husband did not impair the wife's title to the property. While the law does not require the wife to support the husband, it does not prohibit her from doing so ; and where the property which is the subject of 82 4^8 SUPPLEMEKT. dispute does not come from him, this circumstance furnishes no evidence of fraud. In arguing this point, the appellant's counsel insists that the services, the time and talents of the husband are valuable, and he has no more TigM to give them to his Tvife, as against his creditors, than to give to her his property to their prejudice. The one, he says, is as much their property as th« otlier. This argument is entirely unsound. The property of a debtor, by the laws of all commercial countries, belongs to his creditors. He must be just before he is generous. He must pay before he gives. Not so with his tgjents and his industry. Whetlier he has much, or little, or nothing, his first duty is the support of his family. The instinctive impulse of every just man holds this to be the first purpose of liis industry. 'The application of the debtor's property is rigidly directed to tlie payment of his debts. He cannot transport it to another country, transfer it to his friend, or conceal it from his creditor. Any or all of these things he may do with his industry. He is ^t liberty to transfer his person to a foreign land. He may bury his talent in the earth, or he may give it to his wife or friend. No law, ancient or modern, of which I am aware, has ever held to the contrary. No country, unless bofti barbarous and heathen, has ever authorized the sale of the person of a d'dstoT for the satis- faction of his debts. The judge charged the jury that they were to find whether ttie plaintiff was in fact carrying on business herself, her husband acting merely as her a.gent, or whether the business was in fact her husband's, and the agency a form or device for carrying on business with his own means and her son's services. If the former, he charged them that the wife could hold the property. If the latter, he charged them that the property belonged to the creditors, and 'dhe wife must be defeated. This was the precise question for the jury to decide, and it was clearly and fairly placed before them. Their decision is conclusive here. An objection was made to certain evidence given by Mr. Jud- son. He testified that he had sold goods in 1861 to the plaintiff throngh her agent ; that Vhe credit was given to Mrs. Abbey ; the goods were delivered on the boat ; that he recognized the flour and the meal ; that they were to be paid for in fifteen or twenty days, and that the goods on the boat were not paid for. ABBEY V. DEYO. 4Q9 The evidence that the goods were not paid for was objected to by the defendant, as immaterial and irrelevant. If Mr Jud' son had desired to recapture the goods, this evidence would have been important. Upon the question of title between Mrs. Abbey, the plaintiff, and the creditors of her husband, it could have no possible effect for good or for evil. It was conceded that title had passed upon the sale liy Mr. Judson, and that the property was in Mrs. Abbey or in her husband. The ques- tion was merely in which of them was it vested. On that ques- tion the payment to Mr, Judson or the non-payment could have no possible effect. Its admission, therefore, furnishes no ground for setting aside the verdict. People v, Kennedy, 39 N. Y. 245. Judgment should be" affirmed, with co,sts. Earl, C. There was some evidence tending to show that the plaiatiff carried on thfi business throug>h her husband as lier 0gent, and that all the property was purchased by her and ia her name through her husband as her agent. Whether the business was thus ssutried on and the property thus purchased really and in good faith for her, or whether it was all a imere cover and really for her hasband, to keep his property out of the reach of hds creditors, were questions of fact fairly submit- ted to the jury, and their verdict for the plaintiff is, as to these questions, final and conelusivfi. Since ihe passage of the *' act concerning the rights and liabilities of husband and wife," (chap. 90, Laws of I860,) there can be no longer a question that a married woman can carry on business on her sole apd separate account, and that in such business she can purchase property for cash or upon credit, and that sbe can manage her business and property t;hrough her husband as her agent. Knapp v. Smith, ^7 N. Y. 277 ; Buckley v. Wells, 33 N. Y. 518 ; Gage v. Dauchey, 34 N. Y. 293; Merdiant v. Brnnell, 3 Keyes, 639; Draper v. Stouvenel, 35 N. Y. 607 ; Sammis v. MeLoughlin, 35 N. Y. 647. The ceeditors of an inSiOlvent have no claim upon his services. They cannot compel him to work and earn wages for their benefit, and hence he does not defraud them if he Chooses to give away his services by working gratuitously for another. The husband may, therefore, in the management of his wife's separate busi- ness or property, work for her, as any other person might, 500 SUPPLEMENT. without any compensation, and his creditors would not thereby gain any rights against the wife or her property, and would have no legal right to complain. This judgment should, therefore, be affirmed with costs. All concur. Judgment affirmed, with costs. (93 N. Y. 17. Court of Appeals of New York, 1883.) Contract between Husband and Wife for Services of the latter. — Conveyance to Wife in Consideration of Services. — Claims of Husband's Creditors. Earl, J. This action was brought to set aside a deed of sixty-two acres of land, made by the defendant Isaac C. Burr, to Franklin P. Smith, and by him to Ellen A. Burr, the wife of Isaac, on the ground that the deeds were made with intent ' to hinder, delay, and defraud the creditors of Isaac, of whom the plaintiff was one. The facts, as they appear from the findings of the referee, upon which alone this appeal is. based, are as follows. In the year 1869, the defendant Isaac lived upon the land conveyed, and had a family consisting of himself, his wife, the defendant Ellen, two children of his wife by a former hus- band, his two children by his wife Ellen, and his mother, who lived in a part of his house and whom he had engaged to sup- port in consideration of a conveyance by her to him of twenty- six of the sixty-two acres of land. His mother was about eighty years of age, and in the month of January of that year she had an attack of paralysis, which rendered her partially helpless. She had another attack in the month of February, and still another in the month of April, which substantially rendered her helpless. After the last attack she could not walk or feed herself for a year or more. The care of her de- volved mainly upon Mrs. Burr, and her services in such care were onerous, exiacting, and disagreeable. Soon after the last attack, it was considered in the family that it would be a most unpleasant and disagreeable duty to take charge of the mother, and provide for and administer to all her wants in her helpless COLEMAN V. BURR. 501 condition, and it was agreed between Mr. Burr and his wife that, if she would undertake to discharge such duty, she would be paid by him for her labor and services the sum of five dollars a week, which, in view of the very irksome, laborious, and dis- gustful duty she performed during the residue of the life of the mother, was no more than a fair and reasonable compensa- tion for such labor and services. The mother lived after the last attack of paralysis, and after this agreement was made, eight years and four months, and the compensation agreed upon amounted to $2,175. The referee found that the contract between Mr. and Mrs. Burr was a fair, just, and honest one, madfe at a time when there was little expectation on their part that the life of the mother would be so greatly prolonged, considering her advanced age, her disease and helpless condition. For the purpose of paying the sum which it was claimed thus became due to his wife on the 29th day of December, 1877, Isaac and his wife conveyed the sixty-two acres of land to the defendant Smith for the nominal consideration of f 1.00, and on the same day Smith executed and delivered a deed of the same land to the wife for the same nominal consideration. The deeds were both delivered at their date, and acknowledged and recorded. Prior to the execution of these deeds Isaac C. Burr was indebted in the various sums mentioned in the complaint, for which, before the commencement of this action, judgments had been obtained against him, upon which executions had been issued and re- turned unsatisfied. The referee decided that, as matter of law, the contract estab- lished by the proof between the husband and wife, indicated a clear and explicit election on her part, with his consent, to render the labor and services performed by her as nurse, in taking care of her husband's mother in her sickness, on ,her sole and separate account, and to claim the fruits of her labor and ser- vices for herself, and showed her intention to avail herself of the privilege conferred upon her by the statute ; and that, the agreement on the part of her husband to pay her for such ser- vices was an abandonment on his part of his marital rights to claim or require such services and labor, and created a valid contract in law, and gave her a right to the stipulated price and value of her services which constituted them, or the amount 502 SUPPLEMENT. due het for such se*ticea> a v&lid debt agaittst her husband, which was sufficient in law and equity to form the considera- tioli for the deed executed to her as befote stated ; and h© de» cided that the deeds were not fraudulent and void, and that the Complaint should be dismissed. The sole question for our determinatioB now i9, whether the conveyance of the land to Mrs. Burr i« sustained by a consider- ation good as against the creditors of the husband. It must bfe conceded that the contract, beiiween the wife and the husband* in reference to these services, would, at common law, hate been void, as she could make nd contract with her husband, and her services^ whether rendered in her husband's family or else- where, absolutely belonged to him. Gefry *. Gerry, 11 Gray, 381 ; Cramer v. Eeford, 17 N. J. Eq. 367 ; Henderson v. War- mack, 27 Miss. 830 ; Shaeffer v. Sheppard, 64 Ala. 244 ', Glaze V, Blake, 66 id, 379 ; Duncan t. Roselle, 16 Iowa, 601 ; Hay v. Hayes, 56 III. 342 ; Kelly'a Contracts Of Married Women, 153 ; Schoulfer on Husband and Wife, §§ 2&4, 296< But modern legislation in this State has enlarged the powers of married wdmen. By the -acts of 1848 and 1849, for the protection of the property of married women, a husband was deprived of that right to and contfol of his wife's property ivhich the common law gave him. The purpose of those acts was to protect married women against nnkind, thriftless, or profligate husbands, by Securing to them the separate and independent control of all their own prop- ertyj But those acts went no further. By chapter 90 of the Laws of 1860, still further protection was given to married Women, and a wife was authorized to carry on any trade or business, and to perform any labor, or services ott her sole and separate account, and her earnings from her trade, business, labflr, or services thus carried on of performed were declared to be her sole and separate property. It was the purpose of thoSe provisions to secure to a married woman, free from the control of her husband, the earnings and profits of her own business and of her own labor and services, carried on or performed on her sole and separate account, which at common law would hare belonged to her husband. It was not theii" purpose, however, to absolve a married woman from the duties which she Owes to her husband, to render him sci-- vice in his household, to cafe for him and their common children COLEMAN V. BUEB. 503 with dutiful affection when he or they need her care, and to render all the services in her household which are commonly expected of a married woman, according to her station in life. Nor was it the purpose of the statute to absolve her from due obedience and submission to her husband as head and master of his household, or to depose him from the headship of his family, which the common law gave him. He still remains liable to support and protect his wife and responsible to society for the good order and decency of his household. He is to determine where he and his family shall haye a domicile, how his household shall be regulated and managed, and who shall be members of his family. The statutes referred to touch a married woman in her relations to her husband only so far as they relate to her separate property and business, and the labor she may perform on her sole and separate account. In other respects the duties and responsibilities of each to the other re- main as they were at common law. Prior to 1860 it was never heard of, aa a mischief to be reme- died by legislation, that a wife could not earn money on her own account from her husband ; that she could not demand pay from him for services rendered in his household; that she could not contract with him for services to be rendered for him ; and the statute of that year above referred to was not enacted to remedy such a mischief. Married women frequently carried on business and thus earned money, and they frequently labored for others not members of their family and earned money, and all their earnings from their business or labor, at common law, belonged to their husbands. This was considered a hardship, and it was the purpose of the law to change this common-law rule and to secure tliese earnings to the wife, and the law-makers could have had no other end in view. ■ Whatever services a wife renders in her home for her hus- band cannot be on her sole and separate account. They are rendered on her husband's account in the discharge of a duty which she owes him or his family, or in the discharge of a duty which he owes to the members of his household. It would operate disastrously upon domestic life and breed discord and mischief, if the wife could contract with her bus- band for the payment of services to be rendered for him in his home; if she could exact compensation for services, disagree- 504 SUPPLKMENT. able or otherwise, rendered to members of his family ; if she could sue him upon such contracts and establish them upon the disputed and conflicting testimony of the members of tlie house- hold. To allow such contracts would degrade the wife by making her a menial and a servant in the home where she should discharge marital duties in loving and devoted ministra- tions, and frauds upon creditors would be greatly facilitated, as the 'wife could frequently absorb all her husband's property in the payment of her services, rendered under such secret, un- known contracts. A few cases may be referred to for illustration. In Grant V. Green (41 Iowa, 88), it was held that a contract between the guardian of an insane husband, and the wife, that the lat- ter should care for the husband and receive a certain sum for her services, was without consideration and void, because she owed the service independently of any contract. It was stated by the judge writing the opinion tliat " the service was such an one as she owed her husband by virtue of the relation ex- isting between them. She had no right to refuse to perform it, nor to demand compensation for performing it." In Filer V. N. Y. Central R. R. Co., 49 N. Y. 47 ; 10 Am. Rep. 327, it was held that the services and earnings of the wife belong to her husband, unless she is carrying on a trade or business, or performing labor or services on her sole and separate account, and that, in an action to recover damages for a personal injury, he, and not she, is entitled to recover consequential damages from her inability to labor. In_ Brooks v. Schwerin (54 N. Y. 343), it was held that under the law of 1860, "the services of the wife in the household in the discharge of her domestic duties still belong to the husband, and in rendering such ser- vice, she still bears to him the common-law relation. So far as she is injured so as to be disabled to perform such service for her husband, the loss is his, and not hers, and for such loss of service, he, and not she, can recover of the wrong-doer. But when she labors for another, her service no longer belongs to her husband, and whatever she earns in such service be- longs to her as if she were a feme sole, and so far as she is dis- abled to perform such service by any injury to her person, she can, in her own name, recover compensation against the wrong- doer for such disability, as one of the consequences of the in- COLEMAN V. BUEE. 505 jury." In Reynolds v. Robinson, 64 N. Y. 589, an action was brought by the husband to recover for services rendered by his wife to a boarder sick with a cancer, in his house, and it was held that he could recover. In that case it was said, " she was engaged in no business or service on her own account. She was in charge of his household, and as part of her house- hold duties, rendered the service to a person in her husband's house, by contract with him. She was then working for her husband, and not for herself or on her own separate account. Notwithstanding the act, chapter 90, Laws of 1860, she could still work for her husband, she could devote all her time and service to him; and the circumstances of this case are such as to warrant the finding of the referee that the services were " rendered by him through her ; " that " if the husband takes boarders into his house, or converts his house into an hospital for the sick, and his wife takes charge of his establishment, and thus aids him in carrying on his business, in the absence of special proof, all her services and earnings belong to her husband. Even under such circumstances the husband might covenant and agree that his wife should receive pay for her services on her own account ; but in the absence of some agree- ment to that effect, the infererice of law and fact would be that she was working for her husband in the discharge of her mari- tal duties." It was not intended by anything that was said m that case to intimate that a wife could demand payment from her husband for any services rendered under the circumstances mentioned in that case; but that with his consent she could demand and receive, and hold to her separate use, payment from the persons thus taken into his house, for any services she there rendered to them in taking care of and nursing them. In Whitaker v. Whitaker, 52 N. Y. 368; 11 Am. Rep. 711, the facts were that on the 20th of August, 1868, the husband gave his wife a note for $4,000, the only consideration of which was that the wife, aside from her household duties, had aided in the out-of-door work on her husband's farm, and that the husband gave it to her for the purpose of providing for her support sCad maintenance ; that on the 6th of November, 1869, the husband died, and that after his death she presented this note as a claim against his estate; and it was held that she could not recover. It was said in the opinion that to uphold 506 SUPPLEMENT. notes given under such circumstances would be likely to lead to the perpetration of frauds ; that " if a wife can be said to be entitled to higher consideration or compensation because she labors in the field instead of in her household, the law makes no such distinction. It never has recognized the right to compensation from her husband on account of the peculiar character of her services. In most cases she probably contrib- utes more to the happiness of her family by the proper dis- charge of the delicate and responsible duties of her household, than by any outside labors, however arduous. It is clear that the law regards neither as any consideration for a promise founded thereon, by the husband." In Birkbeck v. Ackroyd, 74 N. Y. 357 ; 30 Am. Rep. 304, it was held that the act of 1860 does not wholly abrogate the rule of the common law entitling the husband to the services and earnings of the wife ; that she may still allow him to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her account, or of circumstances showing her intention to avail herself of the privilege conferred by the statute, the husband's common-law right is unaffected ; that therefore where the husband and wife are living together, and mutually engaged in providing for the support of themselves and their family, and there is nothing to indicate an intention on the part of the wife to separate her earnings, the husband may maintain an action in his own name to recover them. It will be perceived that none of these cases are precisely in point ; but they lay down principles which throw some light upon this case. It is not claimed that any case can be found in this State, or elsewhere, which decides that a married woman can enforce a contract made with her husband for the payment for services rendered by her for him in his household ; and as we understand it is not claimed in this case that if these services had been rendered in nursing and caring for the husband, or for any of the children of the husband and wife, a contract to pay for such services would have had any consideration to rest upon, or that the wife could have retained property conveyed to her in payment of such services against creditors pursuing the same. But it is sought to make a distinction between such services of the wife and those which she renders for one not strictly a member of the husband's family. Such a distinction COLEMAN V. BUEK. 507 does not stand upon principle. A line drawn there would be merely au arbitrary one. While the wife cannot demand or re- oeire payment as again;st creditors for services rendered in the care of her husband and children, can it upon principle be said that she can demand and receive payment for every service she renders in caring for viaitoi's, from time to time, in her husband's house upon his invitation ? Whenever she aids him in the dis- charge of a duty which he owes to an inmate of his house, who ia yet not strictly a member of his family, can she stipulate for compensation ? Whenever she nurses in sickness one of his children of a former marriage, a member of his family, can she lawfully demand a share of his property for her services ? But in this case the mother was properly part of the household. The husband was under a natural, legal, and contract obligation to support her. It would have shocked the moral sense of every right-minded person, if he had not supported her in his own household where she could have the tender care, suitable to her age and feeble condition, of her son and his wife and her grandchildren. He was under just as much natural, legal, and moral obligation to support his mother as he was to support his own children. When, therefore, the wife rendered service ia caring for her, she was engaged in discharging a duty which her husband owed his mother, and precisely the same kind of duty which he owed to his children and to his wife. In dis- charging that duty she earned no money, she brought no in- crease to her husband's property and no income into the family. The services were rendered simply in the discharge of a duty which the husband owed to his mother, and in rendering them she simply discharged a marital duty which she owed to him. To hold that she could charge for services thus rendered, and not for services rendered in the care of her husband and children, would make an arbitrary distinction, resting, as we have before intimated, upon no principle. In construing the statutes referred to, we must constantly keep in mind the objects which were to be attained, and the mischiefs which were to be remedied by them, and not adhere too closely to the precise language used. Section .7 of the statute of 1860 provides that any married woman may bring and maintain an action in her own name against any person for any injury to her person or character; and yet we have 508 SUPPLEMENT. held that she could not sue her husband for an injury to her person ; and it was held in the case of Filer v. ,The Railroad Co., that unless, at the time, she was carrying on business, or rendering service on her sole and separate account, her inabil- ity to labor could not form an element of damages to be re- covered in a case where she had been injured, although the statute provided that she could bring the action the same as if she were sole. Whether or not a wife will do business or render service on her sole' and separate account depends upon her election, and not upon her husband's consent. Shall we so construe the acts referred to that a married woman may make her husband her debtor every time she renders a service in his home to one lawfully there, but not strictly within the narrow circle of a normal family consisting of herself, her husband, and children ? Such a construction would enable a married woman to absorb her husband's property before he knew it, and certainly before his creditors knew it. And no case can furnish a more forcible illustration than this. Here, the wife during the eight years and four months, it must be presumed, received from her hus- band a home, shelter, food, raiment a,nd, if needed, medical attendance, and yet, at the end of the time, she had over $2,000 in property taken from him, and he nothing but clamorous creditors. This is a degree of thrift which attends the labor of few men or women. A married woman owes no duty to her husband to go out of his house and render service for persons not members of his family, and she owes him no duty to carry on any business in his house or elsewhere for the purpose of earning money for him, and the purpose of the statute is fully accomplished if she be permitted to retain as lier own, money or property obtained by her in such business or by the rendition of such services. But when she renders service in the household in the discharge of a duty which she owes to her husband, or which he owes to another, an inmate of his family, and receives no payment from the person to whom the service is rendered, and is entitled to receive none, and brings no money or property by her service, to her husband, she cannot stipulate with him for compensation from him, and the services thus rendered are not under the pro- tection of the statute of 1860. Thus we have a plain, clear rule, COLEMAN V. BURE. 509 easily applied, which will secure the remedy aimed at by the stat- utes, without any embarrassing or disastrous consequences. It is true that these services of the wife were onerous and disagreeable ; so they would, have been if similar services had been rendered for a sick husband or a sick child. Her condi- tion would have been still more unfortunate if she had been the invalid, and the husband or his mother had been called upon to perform similar onerous and disagreeable duties in earing for her. Before closing this opinion one more point must be noticed. The statute (2 R. S. 137, § 4) provides that the question of fraudulent intent in cases of this character "shall be deemed a question of fact and not of law ; " and the claim is made that here there is no finding by the referee of a fraudulent intent ; but that on the contrary he has found the whole transaction to be fair and honest. He has, however, found facts from which the inference of fraud is inevitable, and although he has charac- terized the transactions as honest and fair, that does not make them innocent nor change their essential character in the eye of the law. Mr. Burr must be deemed to have intended the natural and inevitable consequence of his acts, and that was to hinder, delay, and defraud his creditors. Bump on Fraud. Conv. [3d ed.] 22, 24, 272, 278 ; Cunningham v. Freeborn, 11 Wend. 241 ; Edgell V. Hart, 9 N. Y. 213 ; Ford v. Williams, 24 id. 359 ; Babcock v. Bckler, id. 623-632. Upon the essential facts found the judgment should have been in favor of the plaintiff, and hence the referee erred as matter of law in giving judgment against him ; and the General Term was right when as matter of law it reversed his judgijaent. We are, therefore, of opinion that the order of the General Term should be affirmed, and judgment absolute should be ren- dered against the defendants, with costs. All concur, except Danforth and Finch, JJ., dissenting. Order affirmed and judgment accordingly. 510 SUPPLEMENT. -■^■^-x.-t^-c^ ^f-a-A^i.^ Bank i), Gubnxheb, / — -^ ^ <123 N. Y. 568. Court of Appeals of New York, 1890.)<^^.Ot^ Contract between Hvsband and Wife /or services of tlie former, ^Fayrngnts to him for his services and (he support of his Family. — Claims of Wife's Creditors. O'Brien, J. This actios was brought by the plaintiff, a judg- ment-creditor -of the defendant Georgianna J. Guenther, to annul and set a«ide as fraudulent and void a general assignment for the benefit of creditors, "witfe prefereBces made by said G«orgianna to the defendant, John L. Eomer, on the Sth day of May, 1883, and also a mortgage for t3ie sum of ^,545,58, corering real estate, made by her on the same day to her husband, John G. Guenther, and John Dunbar, as executors of the last will of her father, Hemy T. Gillett, who died in the year 1874. The referee to whom the case was referred sustained the mortgage, but beld tiiat the assignment was void because the assignor had included in it and directed tJie payment, as a preferred claim, of the sum of 17,000 to the husband of tbe assignor, wMch claim the referee held was without any consideration. It appears that, after the assignment was made, the plaintiff and other creditors of the assignor began actions to procure judgments against ber upon claims held by them oa which attachments were issued to the sheriff and levy made upon certain personal property embraced in the assignment and in possession of the assignee, which was sub- sequently sold by virtue of the levy. The assignee brought an action in die Supreme Court against ttie sheriff for a conversion of this property. T^e sheriff set up the same facts in bis defence, touching the validity of the assigoment, as are relied upon to invalidate it in this action. Both actions were referred to the same referee, and they were tried together under a stipulation that the testimony, rulings, and objections should apply to both cases. This action to set aside the assignment was brought in the Superior Court of Buffalo. The referee held in both cases that the assignment was void on account of the preference to John G. Guenther, the husband. The General Term of the Supreme Court in the suit by the assignee against the sheriff BANK V. GUENTHEE. 611 reversed the judgment on the ground that the preference to tiie husband was supported by a sufficient ooiisideration, and Ms claim might lawfully be provided for by the wife in mailing an aasignment for the benefit of creditors. Romer v. Koch, 49 Hun, 483. The. General Term of the Superior Court sustained the judg- ment in this case entered upon the referee's report, holding tliat the assignment was invalid. In order to get a clearer riew of the question, in regard to which two very learned and able courts entertain opposite and conflicting opinions, a clear under- standing of the facts which underlie it is necessary, and they are practically undisputed. The assignor is the daughter of Henry T. Gillett, who died November 23, 1874, leaving a will in which his daughter, this defendant, then married, was named as the residuary legatee and devisee. It is found by the re- feree that Gillett, at the time of his death, was possessed of a large estate, and was then and for some years prior to <^at date engaged in partnership with his son-in-law, John G. Guenther, in carrying on the wholesale and retail rectifying and liquor business in the city of Buffalo und-er the firm name of Henry T. Gillett & Son. That Henry T. Gillett own«d all the property and assets of the firm, his son-in-law being in- terested only in the profits, and being, under the arrangement, entitled to receive one-half of the same. After the death of Henry T. Gillett, the son-in-law, said John G-. Guenther, as survivor, carried on the business in the same firm name nntil May 1, 1876, when, as such survivor, and also as executor of the will of his father-in-ilaw, he assigned a;nd transferred to his wife, the residuary legatee, by written instrument, " all and singular the goods, chattels, property, and effects of whatsoever name, kind, or character, or wheresoever situate of said firm of Henry T. Gillett & Son." The wife assumed all the debis of the firm, and released her husband from all claims on account of past transactions, and having thus become .possessed of the firm property and a considerable estate left by her father, she employed her husband, who had no property of his own, to take charge of and carry on the wholesale and retail rectifying and liquor business for her under the old firm name of Henry T. Gillett & Son. And .she also further agreed with her husband that she would assume and pay all the expenses of supporting 512 SUPPLEJtENT. the family. She also, on the 1st day of May, 1876, executed, acknowledged, and procured to be recorded in the office of the clerk of the county a certificate, pursuant to the statute per- mitting the continued use of partnership names, stating that she was the person " now and hereafter " dealing under the firm name of Henry T. Gillett & Son ; that her residence or place of abode was in Buffalo, and that her husband, John G. Guenther, was her agent for carrying on said business. The business was conducted by the husband under this power and in this manner until May 9, 1883, the day after the date of the assignment wliicli is the subject of this controversy. During all this time the man- agement and conduct of the business was wholly intrusted to the husband. The wife was without business experience, and had no knowledge of the details of the business, or the methods by which it was carried on, or whether profitable or not. She agreed to pay her husband |1,600 per year for his services, and the referee finds that this was a reasonable compensation. It is also found that during the time the husband had charge of the business the expenses of supporting the family, consisting of the husband, wife, and one child, in a proper and reasonable manner, not including the expense of maintaining the dwelling-house and repairing and insuring the same, amounted to between $2,000 and $2,500 per year, which was paid by the husband ■ out of the proceeds of the business. The amount drawn by the husband during this time from the business to pay the family expenses amounted to upwards of $10,000, and to apply upon his salary $2,031.38. When the assignment in question was made the assignor was indebted to divers parties in the sum of $70,000 and upwards, which she was unable to pay. The assignee, acting in good faith and, as is found, without any fraudulent intent, took possession of the property embraced in the assignment, having duly qualified, and he claims the property as such assignee for the purposes of the trust. Numerous other facts were found relating to the origin, history, and validity of the mortgage which the referee held to be valid, and as all parties seem to have ac- quiesced in that part of the decision, we are not concerned with it on this appeal. The referee held that the promise and agree- ment of the wife to support the family was void, and that as the husband had drawn from the business in all over $12,000, there was nothing due to him for salary from the wife, and " that by BANK V. GUENTHER. 513 reason of such preference and the directions to said assignee, so contained in said assignment, to pay to said John G. Guenther out of said assigned property and estate said sum of 17,000, said assignment is void." It thus appears that the conclusion that the assignment was void, and tlie preferred claim of the husband without consideration, was reached by the referee by applying the 110,000 and upwards which the husband drew from the business to pay the family expenses, under a void agreement, upon his salary, thus extinguishing any claim against the wife for the same. We think that the judgment proceeds upon an erroneous view of the transaction. The assignor, upon the death of her father, became possessed of a separate estate, and entered upon the conduct of a separate business, which she could manage or carry on either personally or through such agencies as she might select, and for that purpose it was competent for her to appoint her husband. Abbey v. Deyo, 44 N. Y. 343 ; Buckley v. Wells, 33 id. 518 ; Knapp v. Smith, 27 id. 278 ; Merchant v. Bunnell, 3 Keyes, 539 ; Foster v. Persch, 68 N. Y. 400 ; Kingman v. Frank, 33 Hun, 471. The right to employ an agent implies the right to compensate him for his services, and even if it be assumed that the husband would be unable to maintain an action against the wife to recover the-agreed compensation, it would still remain a moral obligation which the wife could voluntarily pay or provide for without fur- nishing any legal or just ground for complaint on the part of her other creditors, providing the transaction was free from actual fraud. So, too, her agreement to support the family in this case was, no doubt, illegal and perhaps void, in the sense that so long as it remained executory it could not be enforced against her, but as. she entered into the agreement when she was perfectly solvent and without any fraudulent intent, she had the right to perform it, and having done so could not undo what had been done by re- calling what she had paid or requiring the husband to reimburse her for the outlay. This was the situation in which the assignor was placed before making the assignment. She had- performed her agreement to support the family by permitting the husband to pay these expenses out of her funds, but she had not paid the yearly salary which she had stipulated to pay, and it was not a fraud upon her other creditors to provide for its payment in the assignment. We do not consider it necessary to state at greater 514 SUPPLEMENT. length the reasons or refer more particularly to the authorities that uphold this proposition. That has been done by the Supreme Court in Romer v. Koch {supra), in a learned and able opinion which commands our approval. There is nothing in this view of the case that conflicts with Coleman v. Burr, 93 N. Y. 17. In that case the husband agreed to pay his wife a specified sum per week for taking care of his aged mother whom he was bound to support, and this agreement, honestly made, was the sole con- sideration for the transfer by the husband to his wife of certain real estate. It was held that this conveyance was void as against the existing creditors of the husband. This result was reached by the application of the common-law doctrine that the marital duty of the wife required her to perform such duties when neces- sary in the household of her husband, and a contract on the part of the husband to pay her for the performance of such duty was without consideration. That principle has no application here, as it has not yet been held and is not claimed that a husband owes any legal duty to his wife to render services for her, in her separate business, without compensation. ■ The judgment should be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed. BoDiNE V. Matilda Killeen. (53 N. Y. 93. Court of Appeals of New York, 1873.) Contract between Husband and Wife. — Husband as Wife's agent. — Estoppel of Wife. Allen, J. With the removal of common-law disabilities from married women, corresponding liabilities have necessarily been imposed upon them. They take the civil rights and privileges conferred, subject to all the incidental and correlative burdens and obligations, and their rights and obligations are to be deter- mined by the same rules of law and evidence by which the rights and obligations of the other sex are determined under like cir- cumstances. To the extent, and in the matters of business in BODINE V. KILLEEN. 515 which they are by law permitted to engage, they owe the same duty to those with whom they deal, and to the public, and may be bound in the same manner as if they were unmarried. Their common-law incapacity cannot serve as a shield to protect them from the consequences of their acts, when they have statutory capacity to act. A married woman is sui juris to the extent of the enlarged capacity to act conferred by statute, and may be estopped by her acts and declarations, and is subject to all the presumptions which the law indulges against others with full capacity to act for them- selves. Sherman v. Elder, 24 N. Y. 381. Where there is no legal capacity to contract, a party will not be estopped by falsely representing that he has capacity; that is, the incapacity is not removed by any fraudulent representation of the actor. The law will not permit one legally incapacitated to do that indirectly which he or she cannot do directly. That is especially the case in respect to infants -and married women laboring under the common-law disabilities, the law imposing the disqualification from motives of public policy, and for the safety of those re- garded as weak, and needing this protection.. Keen v. Coleman, 30 Penn. 299; Lowell v. Daniels, 2 Gray, 161; Goulding v. Davidson, 26 N. Y. 604. But the reason of the rule ceasing with the removal of the incapacity, the rule falls. In the man- agement and control of her separate property, when acting by agents, a, feme covert is answerable for the frauds of her agent while acting within the scope of the agency, although the fraud may be without her knowledge or assent. Baum v. Mullen, 47 N. Y. 677. By statute (Laws of 1860, chap. 90) a married woman may carry on any trade or business on her sole and sep- arate account, and the earnings from her trade or business are her sole and separate property, and she may sue and be sued in all matters having relation to her sole and separate property, in the same manner as if she were sole. She has all the legal capacity to do every act incident to the business or trade in which she may engage which a feme sole would have, that is, full legal capacity to transact the business, including, as incidents to it, the capacity to contract debts and incur obligations in any form, and by any means, by which others acting sui juris can assume responsibility. This defendarit, for many years prior to May, 1869, had been 516 SUPPLEMENT. doing business in New York city as a retail grocer, buying her goods of the plaintiffs on credit. During most of the time, and until some time in the year 1868, her husband had acted as her agent in making the purchases and payments. The husband was taken ill in 1868, and from tliat time she made the purchases and payments to the plaintiffs, but 'there was no revocation of the agency of the husband. About the first of May she transferred the business to her husband, who subsequently carried it on at a different place in the same city, and bought the bills of goods, for which action is brought, during the month of May. The jury have found that there was no notice to the plaintiffs of the change in the business, and that they had no knowledge of it. Credit was in fact given to the defendant, and not to her, husband. The plaintiffs had the right to presume that the business of the defendant, and the agency of her husband in respect to it, con- tinued until actual notice of change in the business, and a revoca^ tion of the agency. Suffering the plaintiffs to act upon this presumption, she is estopped from alleging the contrary. She had capacity to continue the business in which she had been engaged, and whether she expressly represented to the plaintiffs that the business was still hers and her husband was her agent, or the facts were legally and naturally inferable from her acts or her silence, is immaterial. She is bound by the appearances which she has given to the transaction, and upon the faith of which others have acted, up to the limits of her legal capacity to act. In other words, to the extent of her legal capacity, the apparent authority of the husband to act for and bind her must be taken as the real authority, so far as others have been induced to act upon it, and have parted with their property upon the faith of it. It is simply because the ^defendant had the power to con- tract the debt for which this action is brought, that she may be estopped by her acts from disputing her liability, and the existence of this capacity takes the case out of the principle of the authori- ties relied upon by the counsel for the appellant. This is the only question presented by the record, or urged by the appellant, although it is made the subject of several exceptions in different forms upon the trial. The case was well disposed of at the circuit. The liability of the defendant does not depend upon the fact that she was actually carrying on a business or trade on her sole NOEL V. KINNEY. 517 and separate account, but upon her capacity to do so, with the other circumstances establishing her liability. The judgment must be af&rmed. All concur. Judgment affirmed. Noel v. Kinney. (106 N. T. 74. Court of Appeals of New York, 1887.) Partnership between Husband and Wife. — Purchases for beneft of Wife's separate property. — Estoppel of Wife. Danforth, J. The action is upon a note signed " J. P. Kinney & Co.," payable to the order of plaintiff at bank for |505, value received. The complaint contains allegations usual in such cases, and sufficient to charge the defendants, as partners, under the name affixed- to the note. Fred erica M. Kinney alone answered, and her sole defence is, that at the time stated she was a married woman, and that the note was executed and delivered by her hus- band .; there is, however, no allegation that it was made without her knowledge and consent, nor that it was made without her authority. Upon the trial the plaintiff put the note in evidence, and the defendant proved her marriage with the other defendant. There was evidence from which the jury might have found that she was the owner of improved real estate in the city of Brooklyn ; that the consideration of the note was the purchase-price of mir- rors placed in houses built upon her land, and that the mirrors were unpaid for. The note was fairly taken, and the consideration de- livered upon the representation by the husband that the wife was the sole owner of the property, and that the name of J. P. Kinney & Co. was used as mere matter of convenience in transacting her ^ business. It does not appear that there was any business except in relation to the houses. No question was made as to the au- thority of defendant's husband to execute the note, nor as to the truth of his representations. The defendant Frederica moved to dismiss the complaint upon the ground that, as to her, the note was invalid ; " its form," as her counsel stated, " showing it was not given in respect to her 518 SUPPLEMENT. separate business or estate." The trial judge directed a verdict for the plaintiff subject to the opinion of the court. It was so rend- ered, but, on motion of the defendant's counsel, afterwards set aside by the same judge, and judgment ordered for the defendant. Exceptions taken by the plaintiffs to this ruling were directed to be heard in the first instance at General Term, judgment in the mean time to be suspended. The General Term overruled the exception and ordered judgment for the defendant. It is obvious that the contract, in fulfilment of which the note was given, was of value to the defendant, for by it she acquired articles, for the improvement of her property. She retains those articles, and has so far avoided payment upon the ground that she and her husband, upon contracting and consummating marriage be- came one person, and so incapable of thenceforth contracting one with the other ; that therefore they could not be partners, and, as the contract sued on was in form a co-partnership contract, it could not be enforced against her. If this is the present rule of law, then the statutes which enable the woman to acquire and hold property, to bargain, sell, assign, and transfer it, to carry on any trade or business and perform any labor or service on her own account, and which protect her in the enjoyment of her earnings, from her trade, business, labor, or services, and permit her to use and invest these earnings, are effectual only so far that she may alone or jointly with any person or persons, save her husband, derive profit and increase from her work and gain f I'om the use of her estate. If they are to be so limited in her favor, they may easily, as in this instance, become not merely enabling statutes for her Ijenefit, but also, in her hands, instrumentalities of fraud. Upon the precise question presented, the opinion of the court below assumes that the decisions of other courts are conflicting ; but we are referred to no case in this court where a woman has successfully asserted her coverture as a defence to an action for the price of goods purchased by her, and 1 am unable to see why, as against creditors, she should be permitted to interpose the mere form of her promise as an obstacle to their recovery. It is settled that the things, which the statutes above referred to per- mit her to do in person, she may also do by another as her agent. This is necessarily so, for she is allowed to act in respect to them as if unmarried ; and it cannot be doubted that the im- provement of her land or the management of her personal prop- KOEL V. KINNEY. 519 ertf, whether for preservation or business, may be conducted by her by means of any agency which any other owner of property might employ, and that the produce and increase thereof will be hers. Knapp v. Smith, 27 N. Y, 277, 278 ; Abbey v. Deyo, 44 id. 343, 844. So she may do those things through her husband as her agent. Abbey v. Deyo, supra; Rowe v. Smith, 45 N. Y. 230. She may also have such a community of interest with him in relation to real estate as will render her liable for his frauds relating to it, and when he, professing to act as her agent, makes false representations, although without her knowledge, and she receives the proceeds, she cannot retain the fruits of his fraud. Krumm v. Beach, 96 N. Y. 398. Again as to all contracts relating to her separate estate, or made in the course of her separate business, she stands at law on the same footing as if unmarried, and can, therefore, make negoti- able paper which will be govterned by the law merchant, and can be sued upon in the ordinary way by general complaint, and with- out special statements. Frecking v. Rolland, 68 N. Y. 422. Nor can she escape liability because she and her husband are jdint makers of the note sued on. In Frecking v. Rolland (^supra) the action was on a joint promissory note signed by the defendants, who were husband and wife. He set up usury, and she set up coverture. The court directed a verdict for the wife, and the jury gave a verdict against the husband. The creditor appealed. The General Term affirmed the verdict in favor of the wife, and the creditor appealed to this court. Against the appeal it was argued (1st) that being a married woman she was not liable for the note in suit ; (2d) that the complaint, being general and not specific, was insufficient to charge her property. Neither objection pre- vailed, and the judgment in her favor was reversed. There the husband, acting for himself and as the agent of his wife, borrowed money with which to pay for a factory bought by her. The money was loaned to them, and was in part so applied. The note was given for the money loaned and for services. The court, in answering the defendant's abjections, show that the capacity of a married woman to make contracts relating to her* separate busi- ness is incident to the power to conduct it, since the latter would be barren and useless if disconnected with the right to conduct it in the way and by the means usually employed. In the case cited she became a joint contractor with her husband, but she was as 520 SUPPLEMENT. i much bound to perform the joint engagement as if the undertak- ing had been several, and she did not escape liability because her joint contractor was her husband. It was not necessary _to inquire in that case whether the one paying could obtain contribution from the other, nor is it necessary to go into that question here. In that case both undertook to pay the creditor ; in this case both undertake to pay the creditor. Can it make a difference in tlie measure of liability that in one case the married woman entered in her own name and her husband in his name in the execution of a joint obligation, and in the other case adopted a name which represents a joint liability, which may in effect also be several ? Partners are at once principals and agents — each represents the olher — and if in the relation of partnership there are obligations which a married woman cannot enforce against her husband, or the husband against the wife, they involve no feature of the pres- ent action, which asserts only the obligation of a debtor to dis- charge her debt, or the obligation of a promisor to fulfil her promise. More like the present case is that of Scott v. Conway, 58 N. Y. 619, where, in an action for the price of labor and materials sup- plied to a theatre garried on by Sarah G. Conway and her husband Frederick B., under the name of " Mrs. F. B. Conway's Brooklyn Theatre," and in which the wife and husband were jointly inter- ested, it was held to be no defence against one who dealt with her in ignorance of the partnership, that she had a dormant partner, and that the rule was not changed by the fact that the partner was her husband. In Bitter v. Rathman, 61 N. Y. 612, it was held that a married woman, who in secret trust for her husband becomes a member of a co-partnership, is to be regarded as the owner of the interest she represents, and might maii;tain an action for the dissolution of the co-partnership and for an accounting. The defendant in that case denied that she was a partner, and asserted that he alone was interested in the business, claiming that being a married woman she could not in law be his partner. The court held otherwise, and also that, having suffered herself to be regarded by the public as a partner, she was liable as suph to the creditors of the ostensible firm, although it might be otherwise in respect to her husband and his creditors. It would seem, therefore, that by becoming a partner either with a husband or another person a NOEL V. KINNEY. 521 married woman loses no right of property. And no principle is suggested upon whicli her estate can be increased at the expense of creditors, nor how either in her own name or in her own name and that of another, or with another, she can purchase goods on credit to the advantage of her separate estate and not become liable for its payment. In Coleman v. Burr, 93 N. Y. 17, cited by the appellant, the sole question was whether the conveyance of property by the husband to his wife was sustained by a consid- eration good as against his creditors, who impeached it. Here the wife was as capable of contracting as if she had been unmarried, as capable of adding to her estate by fresh acquisitions, and she should not be permitted to escape payment or performance by joining to her own name that of her husband, or by combining the two into a firm or partnership name. It was by that name she chose to contract, and as between herself and creditors she is bound by it. Individuals may be liable as partners to third persons, while as between themselves they are not. Here, then, the question is not between husband and wife. Assume that as to and with him she has no capacity. It by no means follows that she shall not be held upon a contract made by him upon a consideration moving to her, where a third person, who parted with that consideration in reliance upon the husband's apparent, and which turns out to have been a real agency, seeks to enforce the contract. If the adoption of a firm name was a mere contrivance to carry on the business jointly, and at the same time put the property acquired and added to the wife's separate property out of the reach of creditors dealing with either hond fide as the partner of the other, it should not be permitted to have that effect. If, as the testimony shows, the wife was the sole owner of the property, that the husband had no interest in it, but that for convenience they were doing her business in the name of J. P. Kinney & Co., her liability for a debt contracted in that name is entirely consistent with the fact, if it be a fact, that as between the parties themselves no partnership exists. This is so, although the plaintiff alleges in the complaint that the defendants are partners, and that allegation is not denied. For the purposes of the action it may be true. The plaintiff gave credit to them as such, but the goods he sold were intended by them to be annexed to the wife's separate estate, and they were so annexed. • If the arrangement was valid between all parties there 522 SUPPLEMENT. is no pretence of a defence. If invalid only as between the dei* fendants, the wife, who received the fruits of the transaction, can- not as against a creditor assert its invalidity. Although married she may be estopped by her acts and declarations in any matter in respect of which she is capable of acting sui juris, Bodine v. Killeen, 53 N. Y. 93. In this instance the plaintiff proved the contract, that it was made by her authorized agent, and that it had reference to the improvement and benefit of her separate estate. She had capacity to do all these things, and if the arrangement which led to the use of her husband's name as joint promisor or partner, was beyond her power to enter into, she must meet that liability without regard to any question whether her husband is also liable, or as to what rights of indemnity or otherwise she might have against him. She was a principal and he was her agent. He neither exceeded his power nor were his acts to her prejudice, and if by reason of any technical incapacity they could not contract with each other, or together, as constituting that artificial entity, a firm or co-partnership (a question we do not decide), she is liable, and the contract enforceable against her in favor of the plaintiff whose property has been added to her estate upon the strength of a promise made in her name by her author- ized agent. We think the court erred in directing judgment for the defen- dant. It should be reversed and the plaintiff have judgment upon the verdict. All concur. Judgment accordingly. Kaufman v. Schoeppel. (37 Hun, 140. Supreme Court of New York, 1885.) Ai ~Partnership between Husband and Wife. Haight, J. This action was brought by the plaintiff, as execu- tor, etc., to recover for the conversion of certain personal property alleged to belong to the estate of Mary J. Kaufman, deceased. The defence was that the taking complained of was under an execution issued on a judgment in which the plaintiff^ individ- KAUFMAN V. SCHOEFFEL. 523 ually, was judgment debtor, and that Mary C. Kaufman was his wife, and that they were engaged in business as copartners ; that the property taken was copartnership property, and that on her death the same passed to him, as survivor, and that con- sequently he could not maintain the action as executor. Upon the close of the plaintiff's evidence the court held that the evidence established that they were copartners and that the property was copartnership property, and that the defendant's motion for a nonsuit should be granted. The question thus presented is as to whether or not a husband and wife can legally enter into a business copartnership. This question has recently received consideration in the case of Fairlee V. Bloomingdale, 67 How. 292, in which it was held that such copartnership is not authorized by the statute, and that the com- mon-law disability of husband and wife to so contract together still exists. It was again considered in the case of Graff v. Kin- ney, 1 How. U. S. 59, in which the opposite result was reached. And, again, in the case of Noel v. Kinney, 31 Alb. L. J. 328, in which the decision in the case of Graff v. Kinney was criticised and disagreed with, and the decision in the former case con- curred in. So far as we have been able to discover, the precise question has not been passed upon in the General Term or the Court of Appeals. In the case of Nash v. Mitchell, 71 N. Y. 199, 294, Allen, J., in delivering the opinion of the court, says : " The disabilities of a married woman are general and exist at common law ; the capa- bilities are created by statute and are few in number and excep- tional. It is for him who asserts the validity of a contract of a feme covert, by evidence to bring it within the exceptions." In the case of Bertles v. Nunan, 92 N. Y. 152, 160, Earl, J., in delivering the opinion of the court, says : " The common-law incidents of marriage are swept away only by express enact- ments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind her- self by contract only as she is expressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy," . . . and " that the common-law disability of husband and wife, growing out of their unity of person, to convey to each' other still existed. It is believed also that the common-law rule as to the liability of the husband for the torts 524 SUPPLEMENT. and crimes of his wife are still substantially in force." In this case it was held that under a conveyance to a husband and wife jointly, they take not as tenants in common, or joint tenants, but as tenants by the entirety, and upon the death of either the survivor takes. the whole estate. In the case of Coleman v. Burr, 93 N. Y. 17, it was held that the statute authorizing a married woman to carry on a trade or business and to perform any labor or services on her sole and separate account, did not absolve her from the duty to render to her husband such services in his household as are commonly expected of a married woman in her station in life. In the case of Johnson v. Rogers, 35 Hun, 267 ; 20 Weekly Digest, 568, this court has held that a deed made by a husband to his wife directly, for a mere nominal consideration, passes no legal title. At common law, by reason of the unity of husband and wife, they cannot contract together a business copartnership. This disability still continues unless it has been changed by the statute. The question, therefore, becomes one of construction of the statutes. And in such construction we must not forget the rule that statutes in derogation of the common law must be strictly constructed. The statute in question is as follows : "A married woman may bargain, sell, assign, and 'transfer ]ier separate personal property, and carry on any |;rade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor, or services, shall be her sole and separate prop- erty and may be used or invested by her in her own name." Sec. 2, chap. 90, Laws of 1860. It is claimed that the phrase " on her sole and separate account,'' does not limit or qualify the words " trade or business," and that this is apparent from the punctuation of the sentence. This, however, does not ap- pear to us to be the construction of the section intended. In construing statutes it is not a safe rule to place too much reliance upon the punctuation. The words " trade or business " are connected with the words " labor and services " by the con- junction "and," and it appears to us that the phrase "on her sole and separate account" refers back and qualifies the words " trade or business," as well as the words " labor or services." It reads, " a married woman may carry on any trade or business and perform any labor or services on her sole and separate ac- KAUFMAN V. SCHOEFFEL. 525 count." In other words, a married woman may carry on any trade or business on her sole and separate account. That this is the meaning intended would seem to follow from that which precedes and follows the sentence. The section preceding the one under consideration provides that the property which a mar- ried woman acquires " by her trade, business, labor, or services, carried on or performed on her sole and separate account," etc., shall be and remain her sole and separate property. The phrase " on her- sole and separate account," in this section, unquestion- ably refers back and limits or qualifies the words, " trade, busi- ness, labor, or services," and this is evident from the phrase " carried on or performed." The words " carried on " refer to her trade or business, and the word " perform " to her labor or services. To the same effect is the concluding portion of the sentence which follows that under consideration, If we are correct in this reading of the section, it follows that a married woman cannot enter into a copartnership with her husband and carry on a trade or business. Again, it is argued that it has been held that a married woman may engage in a copartnership business with a person other than her husband, and that this construction of the sec- tion would be in conflict with such decisions. This, we do not think would necessarily follow. The married woman was dis- qualified from engaging in business by reason of the existence of her husband. By her marriage her person was united with that of her husband, and they thereafter were regarded in law as one person. She could not contract separate and distinct from him. As soon as the husband died her disability was re- moved. In using the words, " sole and separate," in the statute under consideration, the legislature doubtless had in mind the husband, and these words were doubtless intended to refer to him and to him only. The legislature, by chapter 381 of the laws of 1884, has now removed the disability of a married woman to contract, and she may now contract to the same ex- tent and with like effect and in the same form as if unmar- ried ; but it is expressly enacted that this act shall not affect or appLy to any contract that shall be made between husband and wife, thus recognizing and continuing the construction that we have given. On. the trial, the plaintiff was sworn as a witness in his own 526 SUPPLEMENT. behalf, and gave evidence as to the articles taken, their value, etc. On the cross-examination bj the defendant, he testified that Mary J. Kaufman and himself were members of the firm, and that the goods were a part of the stock-in-trade. On the re- direct-examination he was asked the following question : " You say you were a member of the firm: state what the agreement was between you and your wife in relation to your becoming a member of the firm?" This was objected to, and the plain- tiff 's counsel offered to show the relation existing between Mary J. Kaufman and the witness at the time his name was used in the firm, based upon an agreement rbade at that time between them, in substance as follows : that Mary J. Kaufman requested the witness to permit her to use his name as the company, and agreed to remunerate him for its use ; that he was not to be- come a copartner as between themselves, or have any interest in the copartnership property. This was objected to, and the objection sustained, and exception taken by the plaintiff's coun- sel. We are of the opinion that this was error. The evidence offered was proper in rebuttal, as tending to explain or disprove that drawn out upon the cross-examination. The plaintiff had the right to show that the agreement actually made between the witness and Mary J. Kaufman did not, in law, constitute a copartnership. Judgment reversed, and a new trial ordered, with costs to abide the event. Smith, P. J., Barker and Bradley, JJ., concurred. Judgment and order reversed, and a new trial ordered, with costs to abide the event. -»2^^^5^-^t^^ , j>K,^^ a-t~^^MJ» ,-...^,-0-/ Jii^%^A-^A_ J^ -. .^.," . / ^ yj , Lord v. Parker. (3 Allen, 127. Supreme Judicial Court of Massachusetts, 1861.) Partnership between Husband and Wife. Hoar, J. The plaintiff in review was one of several defendants in the original action, and she alone petitioned for a review ; and the writ of review issued in her name only. The objection that ,fehe other defendants should have been joined is met by the LORD V. PARKER. 527 express provision of the statute. Rev. Sts. c. 99, § 16 ; Gen. Sts. 0. 146, § 36. The original action was upon two promissory notes dated November 3, 1867, and signed by J. H. Lord & Company, a part- nership carrying on the business of manufacturers of earthen- ware in Boston ; and the plaintiff in review was sued as one of the copartners. She is a married woman, and was married to Joseph H. Lord, November 14, 1855. The lease and contract, by virtue of which it is contended that she was liable as a partner, are dated June 1, 1857. The alleged copartnership was with her husband, Joseph H. Lord, and three other persons, who were joined as co-defendants. The learned judge who presided at the trial ruled that the plaintiff in review was not liable in the suit, and reported the case for the decision of this court. The construction of the con- tract relied upon to sustain the action is not free from difficulty, and it has been argued in her behalf that it would not have made her liable as a partner, if her capacity to enter into a partnership were unquestioned. But we have not found it necessary to pursue that investigation, because the result to which the court have come upon the interesting and more general question which the case presents, has rendered it immaterial. That question is, whether it is in the power of a married woman, under the laws of Massachusetts, to form a copartnership with her husband and other persons, with all the consequences and liabilities incident to that relation ? If she has this power, it is because it has been expressly conferred by statute. The defendant in review relies upon St. 1855, c. 304, §§ 3 and 7, and St. 1857, c. 249, § 2. These statutes have made very great and important changes in the law relating to the rights of married women, their capacity to sue and , be sued, and of holding, man- aging, and disposing of property. The St. of 1855, c. 304, § 3, provides that " any woman hereafter married niay, while married, bargain, sell, and convey her real and personal property, and enter into any contract in reference to the same, in the same manner as if she were sole," with an exception as to real estate and shares in corporations, not material to this inquiry. Section 7 is as follows : " Any married woman may carry on any trade or busi- ness, and perform any labor or services, on her own sole and separate account ; and the earnings of any married woman, from 528 SUPPLEMENT. her trade, business, labor or services, shall be her sole and sep- arate property, and may be used and invested by her in her own name ; and she may sue and be sued as if sole in regard to her trade, business, labor, services, and earnings ; and her property, acquired by her trade, business, and service, and the proceeds thereof, may be taken on any execution against her." The St. of 1857, c. 249, § 2, provides that " any married woman may, while married, bargain, sell, and convey her real and per- sonal property, which may now be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, or gift of any person except her husband, and enter into any con- tract in reference to the same, in the same manner as if she were sole," with a similar exception as in the former statute as to real estate and shares in corporations. * The title of these acts is " An Act," and " An Act in addition to an act to protect the property of married women." Their leading object is to enable married women to acquire, possess, and manage property, without the intervention of a trustee, free from the interference or control, and without liability for the debts, of their husbands. They are in derogation of the common law, and certainly are not to be extended by construction. And we cannot perceive in them any intention to confer upon a married woman the power to make any contract with her husband, or to convey to him any property, or receive any conveyance from him. The power to form a copartnership includes the power to create a community of property, with a joint power of disposal, and a mutual liability for the contracts and acts of all the partners. To enter into a partnership in business with her husband would subject her property to his control in a manner hardly consistent with the separation which it is the purpose of the statute to secure, and might subject her to an indefinite liability for his engagements. The property invested in such an enterprise would cease to be her " sole and separate " property. The power to arrange the terms of such a contract would open a wide door to fraud in relation to the property of the husband. The property which a married woman may acquire and dispose of by St. 1857, includes such as may come to her " by gift of any person except her husband," clearly indicating that a gift from him was not to be recognized as creating any title to property in her. If she could contract with her husband, it would seem to follow that she StTAU V. CAFFE. 529 could sue him and be sued by him. How such suits could b* conducted, with the incidents in respect to discovery, the right of parties to testify, and to call the opposite party as a witness, without interfering with the rule as to private communications between the husband and wife, it is not easy to perceive ; and the consequences which would foWow in respect to process for the enforcement of rights fixed by a judgment, arrest, imprisonment, charges of fraud, proceedings in invitum under the insolvent laws, and the like, are not of a character to be readily reconciled with the marital relation. We cannot suppose that an alteration in the law involving such momentous results, and a change so rad- ical, could have been contemplated by the legislature, without a much more direct and clear manifestation of its will. And we are all of the opinion that the plaintiff in review could not form a copartnership such as was relied on to maintain the original action against her, and therefore was not bound by a note given in the name of the firm of J. H. Lord & Co. A similar construction has been given, by the supreme judicial court of Maine, to the general language of statutes which might, in their literal acceptation, have permitted suits between husband and wife, or allowed them to testify for or against each other. Smith V. Gorman, 41 Maine, 405 ; McKeen v. Frost, 46 Maine', 239 ; Dwelly v. Dwelly, lb. 377. The plaintiff in review is entitled to a judgment upon the verdict, reversing the original judgment against her, with costs ; and leaving that judgment in force only against the other original defendants. Q. 8. Boutwell, for the plaintiff in review. N. T. Dow, for the defendant in review. SuAU V. Cafpe. (122 N. Y. 308, Court of Appeals [Seoond Div,], of New York, 1890.) Partnership between Husband and Wife. FbLLETT, Ch. J. But a single question is involved in this ap- peal, which is whether a married woman who contracts a debt with her husband in a business carried on for their joint benefit 34 530 SUPPLEMENT. can avoid liability for it on the ground of coverture. The sec- ond section of chapter 90 of the Laws of 1860, provides that: "A married woman may . . . carry on any trade or business ... on her sole and separate account." It is urged that this language is not broad enough to authorize married women to engage in business as partners or jointly with others, or at least with their husbands, but that the statute simply confers power on them to contract by themselves and apart from others. This construction is too narrow, and fails to express the evident intent of the legislature, which was not to prescribe the mode in which married women should carry on their business, but to free them from the restraints of the common law, and permit them to engage in business in their own behalf as free from the control of their husbands as though unmarried. Before this statute, the profits of their business belonged to their husbands, and the words "sole and separate account" were intended to convey the idea that the beneficial interest of any business in which they might engage belonged to them and not to their husbands. Since the enactment of this statute it has been held that husbands and wives may legally contract with each other in reference to their separate estates, Owen v. Cawley, 36 N. Y. 600 ; Bodine v. Kil- leen, 53 id. 93 ; that they may become agents for each other, Knapp V. Smith, 27 N. Y. 277 ; and that a husband may assign to his wife a chose in action, Seymour v. Fellows, 77 N. Y. 178. In Precking v. Holland, 53 N. Y. 422, it was held that a wife could not escape liability on a joint promissory note given by herself and her husband in payment for property purchased by her by reason of her coverture, nor by reason of the fact that she contracted jointly with her husband. In Scott V. Conway, 58 N. Y. 619, the defendant and her hus- band were engaged in running a theatre under the name of " Mrs. P. B. Conway's Brooklyn Theatre," pursuant to a contract by which the profits and losses were to be equally shared between them. To an action brought for the recovery of the value of goods sold, the wife interposed the defence that she was not liable for the debt, because it was not contracted in any trade or busi- ness carried on for her sole or separate account or benefit, but for the benefit of a business carried on by herself and husband for their joint benefit. This defence was overruled in the Supreme Court and in the Court of Appeals. SUAL V. CAFFE. 531 Bitter v. Rathman, 61 N. Y. 512, was an action for an account- ing between partners. The plaintiff, a married woman, had been engaged in business with the defendant under the name of H. Rathman & Co. The trial court found " that the plaintiff, in secret ti-ust for her husband, was the partner of the defendant," and that " in respect to the public she was to be regarded as the real partner," and ordered an accounting as to the partnership affairs. Gray, Commissioner, said : " Yet she, having suffered herself to be regarded by the public as a partner, was liable as such to the creditors of the ostensible firm; and having thus exposed herself to such liabilities, if any should be found to exist, she had to any such extent no right, as against either the defend- ant or her husband, to be protected out of the share which would belong to her in her capacity as trustee for her husband, at whose instance she undertook the trust." This case does not decide that a wife may or niay not be a partner in business with her husband, but it, in effect, decides that a married woman may be a partner with a third person, and that her husband may act as her agent in the business of the firm. In Noel V. Kinney, 106 N. Y. 74 ; 15 Abb. N. C. 403, an action was brought against the husband and wife on a note signed " J. P. Kinney & Co.," payable to the plaintiff. The complaint charged that the defendants were liable as partners under the name signed to the note. The husband made default, but the wife answered that she was a married woman, and that the note was executed by her husband. On tlie trial the plaintiff put the note in evidence, and it appeared that the defendants were husband and wife, and there was evidence that the note was given for mirrors placed in houses owned by the wife. A motion to dismiss the complaint on the ground that the note on its face showed that it was not given in respect to her separate business or her estate, was overruled. In consider- ing this question Danporth, J., speaking for a unanimous court, said : " In the case cited, Frecking v. Holland, 53 N. Y. 422, she became a joint contractor with her husband, but she was as much bound to perform the joint engagement as if the undertaking had been several, and she did not escape liability because her joint contractor was her husband. It was not necessary to inquire in that case whether the one paying could obtain contribution from the other, nor is it necessary to go into that question here. In that case both undertook to pay the creditor. Can it make a difference 532 SUPPLEMENT. in the measure of liability that in one case the married woman entered in her own name and her husband in his name in the execution of a joint obligation, and in the other case adopted a name which represents a joint liability, which may, in effect, also be several ? Partners are at once principals and agents — each represents the other -^ and if in the relation of partnership there are obligations which a mari'ied woman cannot enforce against her husband, or the husband against the wife, they involve no feature of the present action, which asserts only the obligation of a debtor to discharge her debt, or the obligation of a promisor to fulfil her promise." Partners are the agents of each other, and are jointly and sever- ally liable for the debts of the firm, these being two of the essential elements of a contract partnership. It being settled that hus- bands and wives may be the agents of each other, and that they may bind themselves by joint contracts entered into with third persons, we see no warrant in the statute for exempting them from liability to creditors for debts incurred by firms of which they are members. It has been so held in Graff v. Kinney, 37 Hun, 405 ; 15 A^bb. N. C. 3:97 ; Zimmermann v. Erhard, 8 Daly, 311 ; 83 N. Y. 74, Opposed to these are Chambovet v. Cagney, 3 J. & S. 474; Kaufman v. Schoeffel, 37 Hun, 140; Pairlee v. Bloomingdale, 67 How. 292 ; 14 Abb. N. C. 341 ; 38 Hun, 230. Upon principle and authority, we think that when a husband and wife assume to carry on a business as partners, and contract debts in the course of it, the wife cannot escape liability on the ground of coverture. The judgment should be affirmed with costs. Haight, J., dissenting. The complaint alleges that the defend- ants were copartners in trade, doing business under the firm name and style of George Gaffe, and that the plaintiff loaned and ad- vanced to them as copartners the money sought to be recovered in this action. The defendants were husband and wife. They answered separately, each denying the copartnership, and that any money was loaned to them as copartners, and the defendant Adele Mai'ie alleged her marriage to the defendant George, and that she was, during the time mentioned in the complaint, his lawful wife. The question as to the existence of the copartner- ship was controverted upon the trial. The verdict was in favor SUAU Vi GAFFE. 533 of the plaintiff, thus disposing of that question. The entire busi- ness was transacted by the defehdant George Gaffe, and the loans were made by him, the defendant Adele Marie taking no part. The plaintiff is the brother of the defendant Adele Marie, and knew of the relation existing between the defendants. He Was at work, as he claims, for the firm upon a salary at the time the loans wfere made. There is no evidence constituting an estoppel on the part of the wife, and the sole question left for our determina- tion is whether a wife can lawfully engage in a business copartner- ship with her husband and be bound by the contracts made by him as a copartner. This question was considered in the case of Kaufman v. Schoeffel, 37 Hun, 140, in which it was held by the General Term of the fifth department, that the statute enabling a married woman to enter into contracts, and to carry on any trade or business, and perform any labor or services on her sole and separate account, did iiot authorize of empower her to enter into a copartnership with her husband for the purpose of Carrying on a trade or busfness. The question was also considered at about the same time in the ease of Graff v. Kinney, 37 Hun, 405, iii which the General Term of the second department reached the opposite conclusion, affirm- ing 15 Abb. N. C. 397. In the case under consideration Davis, P. J., of the first depart^ ment, in disposing of the case, says : " In my individual opinion the decision in Kaufman v. Schoeffel, suprct^ is a correct deter- mination of the law, as I think the contrary ruling is adverse to the spirit and intention of the Married Woman's Acts, which were to separate the estate of a married woman from that of her husband, and to completely establish its separate character during coverture, and not enable her to so commingle it in copartnership as t6 clothe him with the power and title which copartners possess in law." 25 Wkly^ Dig. 296. The question was previously considered in the case of Cham- bovet V. Cagney, 3 J. & S. 474, in which Sedcswick, J., says that " the law has made such fules in respect of the relations of man and wife, that it woilld be inconsistent with those that they should become partners in business. There is no doubt that the various acts for the protectioii of a married woman's property have left her in many respects as the common law placed her, under the control and in the power of her husband. . . . Such a dominion 534 SUPPLEMENT. and control cannot be exercised by one partner in business over another without a change of those legal relations which have formed the important characteristic of a partnership. In case a wife has a separate property, although domestic circumstances may keep her home, or she may be kept there by the lawful exercise of the husband's power over her in a proper contingency, he will not have power to dispose of that property. If they are business partners he might legally keep her home and legally dispose of the partnership property at the place of business. I do not believe that the legislature contemplated such an incongruity of rights and duties which accompany the formation of business partner- ships between husband and wife." In the case of Zimmermann v. Erhard, 58 How. Pr. 11, Beach, J., in the New York Common Pleas, reached the conclusion that the wife may contract with her husband a valid business copartner- ship. His opinion, however, does not appear to have been con- curred in by the remaining members of the court. Van Brunt, J., says, in 'disposing of the case, that he does not think it neces- sary to pass upon the question whether or not, if a married woman enters into a copartnership with her husband, she can avail her- self of the defence of coverture, for the reason that such defence is personal to her, and she may avail herself of it or not, as she sees fit. Laeremore, J., concurred in the result, but evidently not upon this question, for in the case of Jacquin v. Jacquin he reached the conclusion that the common-law relation of husband and wife had not been changed so as to permit a business copai'tnership between them. Noel v. Kinney, 15 Abb. N. C. 408, note. The question was again examined in the case of Pairlee y. Bloomingdale, 67 How. Pr. 292, in which Westbrook, J., at Special Term, considers the question in an elaborate opinion, reaching the conclusion that business partnerships between hus- band and wife are not authorized by the statute, and that the conclusion of Beach, J., in the case of Zimmermann v. Erhard, supra, cannot be sustained and should not be followed. And to the same effect is the decision of the General Term of the City Court of Brooklyn, in the case of Noel i). Kinney, 15 Abb. N. C. 403. In the case of Bitter v. Rathman, 61 N. Y. 512, the plaintiff was a married woman, and had been engaged in business as a copartner with the defendant under the firm name of Rathman SUAU V. CAtFE. 535 & Co. It was found that she was engaged as such copartner in secret trust for her husband, although she had furnished from her separate property the funds with which the copartnership business was carried on. A disagreement having arisen as be- tween the copartners, she brought an action for a dissolution and an accounting. The defendant claimed that under the statute authorizing a married woman to carry on any trade or business and perform any labor and services for her sole and separate ac- count, she was not empowered to enter into a partnership business in which she had no interest other than as trustee for another. The court, in answer to that claim, says : " All this may be con- ceded so far as it regards her husband and his creditors. As to the creditors of her husband, he, and not she, would doubtless be regarded the real partner. Yet, having suffered herself to be regarded by the public as a partner, she was liable as such to the creditors of the ostensible firm, and having thus exposed herseK to such liabilities, if any should be found to exist, she had to such extent the right, as against either the defendant or her husband, to be protected." In the case of Noel v. Kinney, 106 N. Y. 74, it was held that the defence of coverture did not protect the wife for a debt contracted for the improving of her real and separate estate, and for which she was bound to the same extent as if a feme sole ; that she was estopped by her acts and declarations in the matter. Danfobth, J., in delivering the opinion of the court, says : " There was evidence from which the jury might have found that she was the owner of improved real estate in the city of Brooklyn ; that the Consideration of the note was the pur- chase-price of mirrors placed in houses built upon her land, and that the mirrors were unpaid for. The note was fairly taken, and the consideration delivered upon the representation by the husband that the wife was the sole owner of the property, and that the name of J. P. Kinney & Co. was used as mere matter of convenience in transacting her business. It does not appear there was any business except in relation to the houses. No question was made as to the authority of the defendant's hus- band to execute the note, nor as to the truth of his represen- tations." In this case the question under consideration was held not to be involved, and the court expressly states that it is not decided. 536 SUPPLEMEHT. But in the case of Hendricks v. Isaacs, 117 N. Y. 411, it does appear to us that the question was decided. Andrews, J., in delivering the opinion of the court, says : " The point on this appeal respects the right of the plaintiff .to have the contract made with his wife enforced against her estate. The contract was void at law. The common-law doctrine that husband and wife could not contract with each other, has not been changed in this State by legislation respecting the rights of married women. The entire and absolute disability of married women to enter into any legal contract, which was a stubborn and inflexible principle of the common law, has, indeed, in some respects, been modified. She may now, under our laws, purchase real and personal property and carry on business on her own account, and, as incident to these rights, she may enter into contracts with third persons for the purchase and sale of property, or in the prosecution of- her separate business, enforceable in a legal action to the same extent as though she was a feme sole. But the disability to deal with her husband, or to make a binding contract with him, remains unchanged. Contracts between husband and wife are invalid as contracts in the eye of a court of law to the same extent now as before the recent legislation. Yale v. Dederer, 18 N. Y. 265 ; White V. "Wager, 25 id. 328." In other States where the statute is similar to our own, it has been held that a husband and wife cannot enter into a business copartnership. Lord v. Parker, 3 Allen, 127; Lord a. Davison, Id. 131; Edwards v. Stevens, J^d. 315; Plumer v. Lord, 5 id. 460-463 ; 7 id. 481 ; Bowker v. Bradford, 140 Mass, 621 ; Payne V. Thompson, 44 Ohio St. 192 ; Haas v. Shaw, 91 Ind. 384-390 ; Scarlett v. Snodgrass, 92 id. 262 ; Bassett v. Shepardson, 52 Mich. 3 ; Artman v. Ferguson, 40 N. W. Rep. 907. So much for the authorities bearing upon the question. The statute provides that a married woman may bargain, sell, assign, and transfer her separate personal property, can carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor, or services shall be her sole and separate property, and may be used or invested by her in her own name. Laws of 1860, chap. 90, § 2. The question is as to the construction of this statute, for at com- mon law a husband and wife could not contract together a business SUAU V. GAFFE. 537 copartnership. The disabilities of a married woman to contract are general, and her capabilities are created by statute. They are few in number and limited. Her general engagements are void unless authorized. Nash v. Mitchell, 71 N. Y. 199-204; Bertles V. Nunan, 92 id. 152-160. Prior to the act of 1884, to which we shall subsequently allude, she could not bind herself by contract, unless the obligation was created by her, in or about carrying on her trade or business, or the contract relates to or is made for the benefit of her sepa- rate estate, or intention to charge the separate estate is expressed in the instrument or contract by which the liability is created, or the debt was created for property purchased by her. S. 0. Bank V. Pruyn, 90 N. Y. 250-264. The statute alluded to does not absolve her from the duty to render to her husband such services in his household as are com- monly expected of a married woman in her station in life. It was the purpose of the statute to secure to the married woman, free from the control of her husband, the earnings and profits of her own business and her own labor and services, carried on and per- formed on her own and separate account, which at common law would have belonged to her husband. Coleman v. Burr, 93 N. Y. 17-24; Johnson v. Rogers, 35 Hun, 270. The words " on her sole and separate account " appearing in the statute must be held to limit and qualify the words " trade or business," as well as the words " labor or services." The words " trade or business " are connected with the words " labor and services " by the conjunction " and," and the phrase " on her sole and separate account " evidently was intended to refer back and qualify the words " trade or business." So that the meaning is the same as if it read, that a married woman may carry on any trade and business on her sole and separate account, and perform any labor or services on her sole and separate account. The section preceding the One under consideration provides that the property which a married woman acquires " by her trade, business, labor, or services carried on, or performed on her sole and separate ac- count," etc., shall be and remain her sole and separate property. The phrase " on her sole and separate account " in this section unquestionably refers back, and limits or qualifies the words "trade, business, labor, or services," and this is evidenced from the phrase " carry on or perform." The words " carry on " refer 538 SUPPLEMENT. to her trade or business, and the word " perform," to her labor or services. To the same effect is the concluding portion of the sen'- tence, which follows that under consideration. Whether or not a married woman may engage in a copartner- ship business with a person other than her husband, it is not necessary to now consider. If disqualified, it is by reason of the existence of her husband. By her marriage her person became united with that of her husband, so that in law they were regarded as one person. If the husband should die or the marriage be dis- solved her disabilities would be removed. In using the words "sole and separate," the legislature doubtless had in mind the husband, and these words were evidently intended to refer to him. We consequently are of the opinion that the common-law dis- ability of a married woman to engage in a business copartnership with her husband still continues, and has not been removed by the statute. This view appears to be sustained by the more recent legislation on the subject. By chapter 381 of the Laws of 1884, it is provided " A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upou her separate estate be neces- sary. This act shall not affect or apply to any contract that shall be made between husband and wife," thus specially excepting from the provisions of the act any right of the wife to contract with her husband. It consequently appears to us that the motion made at the close of the plaintiff 's case to dismiss the complaint as to the defendant Adele Marie Caffe should have been granted, and that the exception to such refusal is well taken. The judgment as to the defendant Adele Marie Caffe should be reversed, and a new trial granted with costs to abide the event, but the judgment as to the defendant George Caffe should be affirmed with costs. Vann, Parker, and Brown, JJ., concur with Follett, Ch. J., Potter and Bradley, JJ., concur with Haight, J., dissenting. Judgment affirfHed. TALE V. DBDEEBE. 539 Yale v. Dedereb and Wipe. (18 N. Y. 265. Court of Appeals of New York, 1858.) Contract of Wife as surety for Husband on a promissory note. — When her separate estate is bound. CoMSTOCK, J. If we assume that the lands of Mrs. Dederer, the appellant, which the plaintiff seeks to charge as her separate estate, are held under a trust for her separate use, and if the trust was created since 1830, the judgment appealed from is erroneous for reasons depending on that assumption alone. By the law of uses and trusts, aS revised in that year (1 R. S. pp. 728, 729), there can be no express trusts in lands except such as the statute (§ 55) authorizes, and, in respect to those, it is declared (§ 60) that " every express trust, valid in its creation (except as otherwise provided for), shall vest the whole estate in the trus- tees, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity." Now, a married woman may be the beneficiary in any one of the trusts which the statute allows to be created, but, like other beneficiaries, her power is qualified by the section quoted. She cannot alienate or encumber the title, which is entirely in the trustee. As she takes " no estate or interest," she has nothing to dispose of either absolutely by a sale or contingently by a charge which may result in a sale. L'Amoureux v. Van Rensselaer, 1 Barb. Ch. R. 37; Noyes v. Blakeman, 3 Sandf. S. C. R. 531. The power to dispose of the accruing income under one of those trusts need not now be considered, because the decision under . review requires the land itself to be sold in default of personal estate sufiicient to pay the debt in question. Without regard, therefore, to incapacity resulting from coverture, Mrs. Dederer could not, on the assumption of a trust, thus dispose of her estate. I incline to think, however, that we should not presume the existence of any trust, upon the case as it is presented to us. The appellant admits in her answer that she has separate estate, 540 SUPPLEMENT. consisting of certain lots of land and personal property, sufficient to satisfy the demand which the plaintiff seeks to enforce. But she does not explain .the nature of her Interest or title ; and the case made on the trial only shows that she owns three farms in the county of Chenango, without any statement as to the mode in which the estate was acquired or the character of the title by which she claims it. Mr. Dederer appear^ to have been joined in the suit as husband merely. The character of a trustee for his wife is not imputed to him, and no other party is brought before the court sustaining that relation. In this posture of the case, I think We must assume that the appellant's title is legal and not equitable. Indeed, her admission, and the statement in the case, that she has a sepa^ rate estate in l£\.nds, would, as we have seen, be false in fact and in law, if we take for granted the existence of a trust for her benefit created within the last twenty-eight years. Again, if the plaintiff sought to charge her separate equitable estate, the trustee having the title would be an indispensable party. We should expect, moreover, that the deed or instrument creating the trust would be set forth, in order that the court might determine whether its provisions are consistent with the attempt to charge the estate. For, although a married woman may Charge or dis- pose of property held in trust for her separate use, it is well settled that she cannot do so in any manner or for any purpose inconsistent with the restraints which the author of the trust has seen fit to impress upon it. Jacques v. The Methodist Episcopal Church, 1 John. Ch. R. 450; s. c. On appeal, 17 John. 548. The fact found and admitted, that Mrs. Dederer has a separate estate, by no means requires an inference that the property is held under a trust. By the statutes of this State which had been in force several years before this suit was com- menced (Laws of 1848, ch. 200, and of 1849, ch. 375), she could acquire and hold in actual possession and enjoyment a separate legal estate in lands or personal property. So, before those stat- utes were passed, and at the common law, she could hold such an estate in lands vested in interest, although not in actual enjoy- ment while the coverture remained. Regarding, then, the appellant as the owner of the lands which are called her separate estate, without the intervention of any trust, the plaintiff's case is met by another difficulty. Do the YALE V. PEDEEEE. 541 disabilities of coverture prevent her from disposing of or charg- ing an estate in lands in which she has the legal and the whole title ? Until the change which has been mentioned was made by the legislature in the law of trusts, there was a well settled doc- trine that a married woman could deal with her separate estate as though she were a feme sole. But this doctrine was a pure creation of the Courts of Equity. Trusts for the separate use of married women were a marked although a beneficent innova- tion upon the rules of the common law. But when the Courts of Equity sustained their validity and recognized the wife's estate under them, it seemed to be a necessary result that she should have the power of disposition ; and accordingly the power was conceded. In many of the adjudged oases, the exercise of this power has been spoken of as an appointment of the estate au- thorized by the deed or settlement in trust ; but the settled doc- trine now is, that she may dispose of or charge the estate in any manner and for any purpose not conflicting with the instrument under which she acquired it. Jacques v. Methodist Episcopal Church, supra, and eases cited. The right of disposition must^ therefore, be referred to the right of property enjoyed independ- ently of the husband, and not to the theory of appointment pur- suant to a power conferred by the author of the trust. She might be restrained by the provisions of the trust deed or instrument ; but if not so restrained, she acted as a. feme- sole in the disposition of hen separate estate. But the separate estates upon which the Courts of Equity en- grafted these peculiar doctrines included necessarily only such rights and interests of the wife as would belong to the husband but for the limitation to her particular use. Such were personal estate, the rents and profits of lands during coverture, and the inchoate title which, by the birth of a child, the husband might acquire as tenant by the curtesy. As to all such interests, the as- sent of the husband to a separate use, duly manifested, or a direc- tion to that effect by the donor of the estate, would give to the wife all the disposing capacity of a feme sole. But her own re- version in lands, when she owned them at the time of the mar- riage, was a legal estate descendible to her heirs, to which Courts of Equity did not and could not well apply the doctrines which have been stated. In reference to such an estate, she only had the disposing capacity which the common law or some enabling 542 SUPPLEMENT. statute allowed to her. She could divest her title and bar the descent to her heirs, in England only by a fine or recovery, and in this country only by a conveyance with certain solemnities of examination and . acknowledgment. Her acquisition, through a trust, of equitable rights which at law would belong to the hus- band, manifestly could not enlarge her capacity to deal with estates which at law as well as in equity were entirely her own. So an estate in fee might be conveyed directly to a woman after marriage, to her sole and separate use. In such a case, equity would convert the husband into a trustee for her of the rents and profits, during the coverture, which otherwise would belong to him. In dealing with those, she would have the capacity of a feme sole, upon the principles which have been stated. But in respect to the corpus of the estate, she could not dispose of it except in the mode prescribed by law, that is, by a fine or recovery, or such other solemnity as the law required for the disposition of estates in land by married women. Roper on Husband and Wife, 182 ; 2 Story Eq. § 1392 ; Clancy Rights of Married Women, -287, and cases cited in notes to these authorities. If, however, the deed to her during her coverture not only conveyed the estate to her, to her sole and separate use, but in terms gave her an absolute power of disposal, then acting under the power specially conferred, it seems she could, without the solemnities required by law, convey the whole estate, although no trust was interposed to protect the exercise of the power. Story Eq. supra. But this required the aid of no doctrine of equity peculiar to separate estates, for a married woman may execute a power without imputing to her the character or capacity of a feme sole. Equity, it seems, in such cases, if not the law, preserved the power, although the donee also held the fee of the lands in respect to which it was to be exercised. These general principles, which scarcely admit of question, are evidently fatal to the present attempt to charge the fee of Mrs. Dederer's lands, and to dispose of that fee for the satisfaction of her alleged debt. The well known disabilities of coverture, as they exist at the common law, prevented her from thus disposing of her real estate. This would be decisive of the case before us, but for the recent legislation of this State " for the more effectual protection of the rights of married women." See the Statutes of 1848 and 1849, above cited. It has not been claimed on the YALE V. DEDEKEK. 543 argument that the case is influenced favorably to the plaintiff by these statutes. They nevertheless seem to require some consideration. The Act of 1849, amending the law of 1848, provides that " any married female may take, by inheritance, gift, &c., and hold to her sole and separate use, and convey and devise, real and per- sonal property," &c., in the same manner and with the like effect as if she were unmarried. In respect to estates acquired and held under the protection of this statute, the disabilities of coverture would seem to be removed. A married woman may " convey and devise " real and personal property as if she were , unmarried. She may, therefore, dispose of lands, in which she holds the legal title, without joining with her husband in the conveyance, and without the solemnity of private examination and acknowledg- ment. I think it is plain, however, that the statute does not re- move the incapacity which prevents her from contracting debts. She may convey and devise her real and personal estate, but her promissory note or other personal engagement is void, as it always was by the rules of the common law. This legal incapa- city is a far higher protection to married women than the wisest scheme of legislation can be, and we should hardly expect to find it removed in a statute intended for " the more- effectual protec- tion of her rights." It is quite another question, however, whether she may not charge her legal estate, held under this statute, in the cases and to the extent recognized by Courts of Equity in re- spect to estates held under a trust for her separate use. The right to charge her separate estate, in equity, resulted from the jus disponendi which Courts of Equity regarded her as having, and it was a necessary incident of the full enjoyment of her property. It would seem for reasons quite similar, that she should have the power to charge an estate acquired and held under the statute referred to. The estate it is true, is a legal one ; but the disabil- ity of coverture, which as we have seen, prevented her from dis- posing of or charging such estates in equity, no longer exists. That disability, as we have also seen, was overcome when she acted under a power of disposition conferred by the instrument conveying the estate. But that power is given in the broadest terms by the statute, and I see no reason why a power thus be- stowed should not be equal in its results to one conferred by a private instrument. My conclusion, therefore, is that, although 544 SUPPLEMENT. the legal disability to contract remains, as at common law, a mar- ried woman may, as incidental to the perfect right of property and power of disposition which she takes under this statute, charge her estate for the purposes and -to the extent which the rule in equity has heretofore sanctioned in reference to separate estates. But without knowing facts which are not stated in the case, such as the time of Mrs. Dederer's marriage and the time when she acquired the lands in question, it is impossible to say with any certainty whether she holds her title under the statute and with the power of disposition which it confers. If we assume that to be her condition (and the facts may so appear hereafter), then we are brought to the question principally discussed on the argument, and that is whether she can and does charge her separ rate estate, real or personal, by signing a promissory note, in no way for the benefit of such estate, but as surety merely for her husband. This question I have examined with the attention which its importance deserves. The contract of a married woman being void at law, the diffi- culty of subjecting her estate in equity to the payment of a note or bond given by her was felt by the courts to be very great. The difficulty was, however, overcome, and the rule must now be re- garded as settled, that the written engagements of a married woman, entered into on her own account, to pay money, are to be satisfied out of her separate estate. North American Coal Company v. Dyett, 7 Paige, 9 ; Heatley v. Thomas, 15 Ves. 596 ; Bullpin V. Clarke, 17 Ves. 365 ; Stuart v. Kirkwall, 3 Madd. 387 ; Owens V. Dickenson, Craig & Phil. 48; 2 Story Eq. § 1400. Where the obligation is not on her own account, and in no sense for the benefit of her estate, the question, whether a charge is thereby created, must depend, I think, on the principle which lies at the foundation of the rule just stated. If the note or bond of a feme covert is to be taken as a particular appointment of her estate to pay it, in the nature of an execution of a power of disposition, then I see no reason for a distinction where she is a surety merely. This was the theory of some of the cases on the subject, but this was obviously a mere fiction. A simple engagement to pay money is not in its nature an engagement to pay out of any particular fund, and cannot, except by a fiction, be regarded as an appointment or disposition of the fund. There TALE V. DEDEREE. 545 is also this further difficulty, which was suggested by Lord CoT- TENHAM, in Owens v. Dickenson, supra, that if a married woman has contracted several debts in writing, and the instruments are to be regarded as appointments of her estate, the creditors would take priority according to the date of the several instruments. The contrary of this is plainly true. The creditors of a feme covert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction, or by some specific lien expressly created for that purpose. Again, as the law now is with us, since the statute of 1849, suppose before or after marriage she takes real or personal estate by inheritance or distribution ; in such a case, the fiction of appointment under a power, when she disposes of such an estate, is too absurd to be for a moment entertained. The earliest cases on this subject proceeded on a more intelli- gible principle, which did not require the aid of a fiction. Thus, in Norton v. Turville, 2 P. Wms. 145, payment of a marriejd woman's bond, given for money borrowed by her, was decreed out of her separate estate, on the ground that it was to be deemed as held in trust for the payment of her debts. This was regarded as one of the separate uses for which the trust was created. So, in Peacock v. Monk, 2 Ves. Sen. 193, Lord Hardwicke said: "If a wife, having an estate to her separate •use, borrowed money and gave a bond for its payment, this would give a foundation to demand the money out of her sep- arate estate. So also, in Hulme v. Tenant, 1 Brown C. C. 20, Lord Thurlow held that the trustees of a married woman's estate were obliged in equity to apply it to the satisfaction of her general engagements. These early cases did not suggest the fiction of an appointment, but proceeded on the notion of a trust, and the plain equity of requiring a married wopian's engagement, entered into for her own benefit, to be satisfied out of the trust estate. Afterwards that fiction was resorted to, which, besides the objection to it as a mere assumption, having not the slightest foundation in fact, worked the actual injustice of rejecting the claims of creditors whose demands were based upon a mere general assumpsit for money had and received, where there was no written engagement to pay. In such cases the fiction of appointment was too grave to be received, and therefore, as there was no appointment, there could be no 35 546 SUPPLEMENT. charge, and so it was held. Bolton v. Williams, 2 Ves. Jr. 138; Jones V. Harris, 9 id. 486. But the still later cases have in terms or effect repudiated the fiction of an appointment, and with it the distinction be- tween the written engagement of a feme covert and her gen- eral liability for money advanced, services rendered, or goods sold. In Owens v. Dickenson, supra, Lord Cottenham re- stored the liability of separate estates to the basis on which it had been rested in the early cases above cited. His observations in that case demonstrate with great clearness that a simple note or bond cannot, in its very nature, be an appointment or charge upon the estate. Speaking of such instruments, he said : " It has sometimes been treated as a disposing of the particular estate ; but the contract is silent as to the separate estatte, for a promis- sory note is merely a contract to pay, without saying out of what it is to be paid, or by what means it is to be paid, and it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property." " Equity," he adds, " lays hold of the separate property, but not by virtue of anything expressed in the contract ; and it is not very consistent with correct principles to add to the contract that which the party has not thought proper to introduce into it." Murray v. Barlee, 3 Myl. & K. 209 ; Bell on the Law of Property, 518, 519 ; Macqueen on Husband and Wife, 301, 303. The principle, in short, which now governs in cases of this kind, is that a wife's separate estate is liable to pay her debts during coverture, in whatever form they are incurred, not because her contracts have any validity at law, nor by way of appointment or charge, but because equity decrees it to be just that they should be paid out of such estate. . Of course, it is not to be denied that a wife may appoint or specifically appropriate her separate estate to the pay- ment of her own or her husband's debts. She may, if she pleases, even give it to her husband. What I am denying is, that con- tracting the debt is, of itself, an appointment or charge. Can, then, the principle on which the liability depends be ex- tended to cases of mere suretyship for the husband or a stranger ? It seems to me it cannot. The obligation of a surety, in all other cases, is held to be strioti juris, and if his contract is void at law, there is no liability in equity founded on the consideration be- YALE V. DEDERER. 547 tween the principal parties. Thus, in Ludlow v. Simond, 2 Cai. Cases in Error, 1, the bill was filed to sustain a contract against a surety who had been technically discharged at law. The sub- ject was very fully examined in the Court of Errors by Chief Jus- tice Kent and by Justices Spencer and Thompson, and the suit was determined against the plaintiff, on the ground that there was no equitable liability upon a surety where he could not be held at law. Why should a married woman be made an excep- tion to this rule ? We are to remember that her contract is absolutely void at law; and when she is a mere surety there is no equity springing out of the consideration. If the promise is on her own account, if she or her separate estate receive a benefit, equity will lay hold of those circumstances and compel her property to respond to the engagement. Where these grounds of liability do not exist, there is no principle on which her estate can be made answerable. If we hold that the signing of a note as surety brings a charge upon her estate, we must go further, and hold also that her guaranty, her indorsement, her accommodation acceptance, her bail bond, indeed every conceiv- able instrument which she may be persuaded to sign for her hus- band or others, although absolutely void at law, are so far binding in equity as to charge her property with its payment. This would be a doctrine sustained by no analogies and opposed to the sound- est policy. It would go far to withdraw those checks which are intended to preserve a wife from marital influences, which may be and often are unduly exerted, and yet baffle all detection. The doctrine that equity regards her as a, feme sole, in respect to her separate estate, only admits that she may dispose of such estate with or without consent of her husband, and without the solemnities which the law in other cases requires. But her mere promise to pay money, as we have seen, is not of itself such a disposition. Courts of Equity, proceeding in rem., will take hold of her estate and appropriate it to the payment of her debts. But when her obligation is one of suretyship merely, she owes no debt at law or in equity. If not at law, which is very clear, then quite as clearly not in equity. It is true, there are one or two English cases in which the trus- tees of a wife's separate estate were decreed to apply the personal property or the rents and profits of lands to the payment of her obligation as surety. Standford v. Marshall, 2 Atk. 69 ; Heatley '548 SUPPLEMENT. v. Thomas, 15 Ves. 596. But those cases were decided at a period when the doubt was whether a mere obligation of any kind to pay money could bring a charge upon her estate, without any reference to the distinction between debts contracted for the bene- fit of herself or of the estate, and engagements entered into as a surety. That distinction was not considered. On the authority of those cases, dicta to the same effect may be found in one or two elementary treatises. 2 Story Eq. § 1400. We have ailso been referred to the case in this court of Vanderlieyde'n v. Mal- lory, 1 Comst. 452. But the point determined was, that the debts of a wife contracted before marriage were not a charge upon the separate estate held by her during the coverture. The remark of Ch. J. Jewbtt upon the question now involved, was ohiter merely, and it appears to have been founded entirely on the observation cited from Judge Story. The case did not call for an examina- tion of any such question. No decision in this State has ever gone beyond the doctrine which I have stated. Curtiss v. Engel, 2 Sand. Ch. R. 287 ; North American Coal Company v. Dyett, 7 Paige, 9 ; s.-c, 20 Wend. 570. In "Curtiss v. Engel, it was held by Vice-Chancellor Sandpobd that, in order to create a dharge, it must be shown either that the debt was contracted for the benefit of the wife's separate estate or for her benefit upon the credit of such estate. I am satisfied, on the whole, that the decision now under review is, upon the facts before us, opposed to principle and sound policy, and that it rests upon the basis of no established doctrine. The judgment should be reversed and a new trial granted. Harris, J. The effect of marriage at the common law, is to vest the property of the wife in the husband — personal estate absolutely, and real estate during the continuance of the marriage. But in equity, and now by statute, the wife is capable of holding both real and personal property to her own separate and exclu- sive use. Incidental to this capacity, is the power of disposition ; so that now, except in cases where she is restricted by the terms of the instrument under which she acquires title, the wife has the same dominion and power of disposition ih respect to her separate property as if she were unmarried. But while, in respedt to her separate property, the disability of coverture no longer exists, it still remains in respect to all her YALE V. DEDEKER. 549 executory contracts. No personal remedy can be had against her in equity, any more than at law, upon any such contract. Her contracts are only valid, so far as they operate upon her separate estate. " Although she is still incapable of charging herself at law," says Cowen, J., in Gardner v. Gardner, 22 Wend. 526, " and equally incapable in equity of charging herself personally with debts, yet the better opinion is, that separate debts, con- tracted by her expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation." In equity, there ia no difference between the separate estate of a wife, created by operation of the statutes of 1848 and 1849, re- lating to married women, and a similar estate created by deed or any other instrument. If it be conceded that the effect of these statutes is to vest in her a legal title, whereas before, when her interest was acquired by means of a settlement or deed, she had only an equitable estate, still, so long as her contracts are affected by the disability of coverture, the debts of the. wife can only be enforced against her separate estate, however acquired, by a spe- cific charge of such debts upon the separate estate. This can only be done in a Court of Equity. The principle upon which this jurisdiction is exercised is well stated by Lord Cottenham, in Owens V. Dickenson, Craig & Phil. 48. It was there held that the engagements of a married woman ought to be enforced against her separate estate, not as the execution of a power, but as the exercise of a right of property to which is necessarily incident the power of contracting debts to be paid out of it. " Inasmuch," it is said, " as her creditors have not the means at law of compel- ling payment of those debts, a Court of Equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of her property, as the only means by which they can be satisfied." Though it is often said, that in equity the wife is re- garded as a. feme sole in regard to her separate property, yet it has never been supposed that even in equity she incurs a personal obligation by her engagements. There can be no proceeding against her in personam. She is regarded, as a feme sole, only so far as to enable her to bind by her contract her own separate property. Upon this, subject, I concur in the views expressed by 550 SUPPLEMENT. the judges of the Supreme Court, who delivered the prevailing opinions in Colvin v. Currier, 22 Barb. 371. It remains to inquire whether, in this case, the wife has made such a contract, as by a proceeding in rem in a Court of Equity, should be enforced against her separate property. At the first, it was supposed that the wife could only bind her separate estate by some act creating a direct charge upon it. But in Hulme v. Tenant, 1 Brown C. C. 20, decided in 1778, the question was pre- sented how far the general engagement of the wife should be exe- cuted out of her separate property. In that case, the suit was upon a bond executed by the, husband and wife, for borrowed money. The principal part of the money had been borrowed by the wife herself. Lord Thuelow declared the rule to be, that the general engagement of the wife shall operate upon her personal property, and the rents and profits of her real estate ; and that her trustees should be required to apply the personal estate, and the rents and profits as they might arise, to the satisfaction of such engagement. The doctrine of that case has been much discussed in the English Courts of Equity, but is now deemed to be settled by the decision of Lord Beougham, in Murray v. Barlee, 3 Myl. & K. 209. In that case, a married woman, living apart from her husband, and having, a separate estate, had employed a solicitor in various trans- actions and had promised by letter to pay him ; it was held, that the separate property of the wife was chargeable with the payment of the solicitor's bill. It is worthy of remark, in reference to this case, that the services for which the plaintiff claimed to be paid out of the separate estate of the wife were rendered for a married woman who lived apart from her husband, and not only upon the credit, but doubtless for the benefit of such estate. The single question before the Court was, whether the pecuniary contract of a married woman, in which there was no reference to her separate estate, should be satisfied out of such estate. It was regarded as a question of intent, and the Court held, that inasmuch as the wife, when she made the engagement, could not be supposed to have intended to do an idle thing, she must be presumed to have in- tended to satisfy her engagement out of her separate property. The charge was established, because the circumstances of the case were such as to justify the inference that such was the inten- tion of the wife. Thus it appears that there are two modes in which the separate TALE V. DEDEEEE. 551 estate of a married woman may be charged with the payment of her pecuniary engagement. The one, where she has, in terms and by an appropriate instrument, made such charge ; and the other, where, though she has not, in making the contract, referred to her separate estate, or expressed her intention to satisfy it out of such estate, yet the circumstances of the case are such as to leave no reasonable doubt that such was her intention. What shall be deemed sufficient evidence to demonstrate such intention, has been regarded as a question of some difficulty. " The fact," says Story, " that the debt has been contracted during the cover- ture, either as a principal or as a surety, for herself or for her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention so to do. 2 Story's Eq. Jur. § 1400. The extraordinary caution — perhaps I may say hesi- tation — with which this proposition is stated by the learned author, deserves to be noticed in this discussion. The writer himself adds that the proposition furnishes "a strong case of constructive implication, founded more upon a desire to do justice than upon any satisfactory reasoning." It should be conceded, I think, that in England the decisions have gone the length of holding that where the wife, living with her husband, gives her own note or other obligation to pay her own debts, or unites with her husband in giving such a note or obligation to pay his debt, it shall, without any other evidence of her intention, be charged upon her separate estate. But in this State the rule has never been carried so far. The primary object in creating a separate estate and allowing the wife to hold and dis- pose of her separate property, independently of her husband, has been kept in view. " The wife," says the Chancellor, in Gardner V. Gardner, 7 Paige, 112, " may have a separate estate of her own, which estate is chargeable in equity for any debt she may contract on the credit of, or for the use of, such estate." In the same case, upon appeal, Cowen, J,, says : " The better opinion is, that sepa- rate debts, contracted by the wife expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor as to so much of her separate estate as is sufficient to pay the debt." Gardner v. Gardner, 22 Wend. 528. The same rule is stated with still greater distinctness by the late Vice-Ghancellor Sandford, in Curtis v. Engel, 2 Sand. 552 SUPPLEMENT. Ch. R. 287 : " To sustaim their suit," he says, " the plaintiffs must show that the debt was contracted either for the benefit of the separate estate of the wife, or for her own benefit, upon the credit of the separate estate." He adds that " whatever may have been the expressions of judges on the subject, this is the utmost extent to which the doctrine has been carried by the' decisions in this State." Dickerman v. Abrahams, 21 Barb. 551 ; Colvin v. Currier, above cited ; Goodall v. McAdam and wife, 14 How. Pr. R. 385. In the latter case the wife had united with her husband in signing a bond for the payment of money. The action was brought for the purpose of charging the payment of the bond upon the sepa- rate estate of the wife. After a pretty full examination of the authorities on the subject, the conclusion of Mr. Justice Hoffman is, that whei'e a note or bond is signed by the husband and wife, in the absence of any evidence to show that it was given for the benefit of the wife, the legal inference is that it was for the debt of the husband, and the separate estate of the wife will- not be charged. So, also, in The North American Coal Company v. Dyett, 7 Paige, 9, the Chancellor says : " The feme covert is, as to her separate estate, considered as a, feme sole, and may, in person or by her legally authorized agent, bind such separate estate with the payment of debts contracted for the benefit of that estate, or for her own benefit upon its credit." Same case upon appeal^ 20 Wend. 570. The rule thus uniformly asserted by the Courts of this State is, in my judgment, more equitable and more in harmony with the policy of the law which allows a married woman to hold and dis- pose of her property independently of her husband than the rule which has been adopted by the Supreme Court in this case. It is simply a rule of evidence. All agree that when the wife has expressly charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of another, such charge is valid and will be enforced. But to hold that the mere fact of her engaging to pay money, without regard to the question whether such engagement was for her own benefit or that of her estate, is sufficient evidence of an intention to charge such pay- ment upon her separate estate, would, in many instances, defeat the very object of allowing her to hold a separate estate. Indeed, there is much to recommend the practice, which has been adopted in some of the States, of looking into the circumstances of the ( YALE V. DEDEKEE. 553 case sufficiently to see that the wife will suffer no injustice before allowing a charge upon her separate estate to be enforced. Maywood v. Johnson, 1 HilFs Ch. R. 228. In this case it was held that the court would inquire into the propriety of an express charge, and not allow the wife to charge her estate by her own mere act and will, without evidence that it was necessary, or at least proper ; and in Beid v. Lamar, 1 Strofhart's Eq. 27, it was held that where property was settled upon a wife to be at her " full and free disposal," it was not to be charged with a note given by her with her husband. The object of settlements, and the other arrangements which were resorted to for the purpose of securing to the wife a sepa- rate estate, was " to protect her weakness against the husband's power, and provide a maintenance against his dissipation." So, too, the legislature, when it declared that the property of the wife "shall not be subject to the disposal of her husband, nor be liable for his debts, and continue her sole and separate property as- if she were a single female," intended, so far as it could be done by legislation, to protect her against the improvidence and misfor- tunes of her husband. At the common law, the power of the husband over her estate as well as her person was almost un- limited. By this statute, and before by settlements and other contrivances which were sanctioned by a Court of Equity, the wife is enabled to enjoy her own property independently of her husband. This right of enjoyment includes the right of disposition. Having this power, she, of course, has the power to charge the estate with the payment of her debts. When she does this of her own free will, uninfluenced by any unfair practices, however injudicious or improvident the act, the charge must be enforced. But when her intention to create such a charge has not been expressed, and there is no direct evidence of such inten- tion, the mere fact that the creditor is able to present a note or other obligation bearing her signature as well as that of her hus- band, ought not — in view of the policy of the law under which she holds her property, and her position as a wife, liable to be controlled by influences which it may be impossible to detect — to be regarded as sufficient evidence to justify the inference that it was her voluntary intention to charge the payment of the debt upon her own separate property. I think that in such a case, the 554 SUPPLEMENT. equitable rule is that which has been invariably adopted in this State, which is, that where the intention to create the charge has not been expressed, and can only be implied from the fact that she has become indebted, either individually or jointly with her husband, it must appear that the debt was contracted for the benefit of her separate estate, or for her own benefit upon the credit of her estate, before the estate can be charged with its payment. In the case before us there is an entire absence of any such proof. Indeed, the contrary is proved. Instead of being the debt of the wife, it is proved to be the debt of the husband. There is no evidence that the wife consented to have the payment of the note charged upon her separate estate, except such as is derivable from the fact that her signature -is found upon the note. Under what circumstances, or upon what representations, or by what influences, she was induced to sign the note does not appear. I am of opinion that such a state of facts is not sufficient evi- dence of an intention, on the part of the wife, that the payment note should be charged upon her separate estate. The judgment of the Supreme Court, therefore, should be reversed and a new trial granted, with costs to abide the event. Strong, J., expressed no opinion ; Dbnio and Roosevelt, Js., dissented. Judgment reversed and new trial ordered. Yale v. Eliza Ann Dedeker. (22 N. Y. 450. Court of Appeals' of New York, 1860.) Selden, J. The judge before whom this cause was last tried has found that the defendant, in giving the note upon which the action was founded, intended to charge her separate estate with its payment. In this respect only does the case, as now pre- sented, differ from the same case when previously here (IS N. Y. 265). For, although the judge has also found, in his specifica- tion of facts, that she did charge her estate, yet this is a mere statement of the legal effect of the defendant's acts, and would YALE V. DEDEEEK. 555 have found a more appropriate place among the conclusions of law, drawn by the judge from the facts proved. It does not expressly appear from the statement of facts, whether the title of the defendant to her separate estate was acquired be- fore or after the Acts of 1848 and 1849, nor consequently whether that title was legal or equitable. It is, perhaps, to be inferred from the form of expression used by the judge in describing the defendant's estate, viz., " a separate estate consisting of three farms" that it was a legal estate acquired subsequently to the passing of these acts. This, however, is immaterial, it having been settled, when this case was formerly here, that the statutes of 1848 and 1849 did not remove the general disability of married women to bind themselves by their contracts ; but that the power conferred by those statutes, to hold to their separate use, and to convey and devise all their real and personal estate as if unmar- ried, carried with it the power to charge such estate substantially in the manner and to the extent previously authorized by the rules of equity in respect to separate estates. To dispose of this case, therefore, we have only to ascertain whether a married woman having, prior to the statutes of 1848 and 1849, a separate equitable estate, could create a charge upon that estate, by giving a promissory note for the debt of her hus- band, intending thereby to charge her estate, but without indicat- ing this intention in any manner by the contents of the note. It was,, settled, when the case was here before, that the bare giving of such a note did not bind the estate. It becomes necessary now to inquire whether the additional fact, that the wife, at the time of making the note, intended to charge her separate estate, changes the rule. Much has been said, in the course of the decisions on this sub- ject, in regard to the intention of the wife at the time of making the contract; and in order properly to appreciate the force of these remarks, a brief retrospect of the law of separate estates is required. I shall not attempt a review of the cases, confused and contradictory as some of them are, but desire to call attention to one or two features of the controversy carried on in the Eng- lish Courts for nearly a century, and which can hardly even now be considered as ended, in regard to the effect of the contracts of married women upon their separate estates. If the instrument by which the estate was created, conferred upon the wife either a 556 SUPPLEMENT. general or qualified power of disposition, no one ever questioned her rights to execute this power ; the doubts which arose related to her right to dispose of or charge the property,, independently of any such special authority; and this right was established soon after the introduction of such estates,, upon the gronnd that the right of disposal was a necessary incident of the right of property. That this universal jus disponendi was the sole and only founda- tion of the right in question is clear. Lord Thublow, in the case of Fettiplace v. Gorges, 3 Bro. C. C. 8, places the right upon this ground, and no other basis has ever been suggested for it. As- suming this then to be the foundation of the right, it is plain that the wife, to avail herself of it, must make some disposition of the. specific property itself. It is clearly impossible to deduce, from thq Jits disponendi, which accompanies all rights of property, power to make any contracts, except such as related directly to the property to which the right of disposition is attached ; and. yet the Master of the Rolls, in Norton v. Turvill, 2 Pr. W. 144,, and in Standford v. Marshall, 2 Atk. 69, held the separate estate of a married woman liable for the payment of her bond, although the bond in no manner referred to such separate estate ; and in the latter case was given for money lent to the husband. The reasoning upon which these cases are said to have pro- ceeded, and upon which they were followed by I^ord Thurlow, was this : That it being the rule in equity, that a wife who had a separate estate might deal with such estate in the same manner as if she were sole, it followed that such estate was liable for her engagements, in the same manner as it would be if she were a feme sole. The equitable rule, which being founded entirely in the right of the wife to dispose of her property, could go no further than to allow her to make contracts specifically appro- priating or charging her separate estate, was thus expanded, so as to enable her to contract generally without in any manner re- ferring to such estate. The doctrine was justly characterized by Chancellor Kent in the case of The Methodist Episcopal Church V. Jaques, 3 John. Ch. 77, where, speaking of the two cases to which I have referred, among others he says : " It is difficult to perceive upon what reasoning or dootiine the bond or parol prom- ises of a, feme covert could for a moment be deemed valid. She is incapable of contracting, according to the 'common right' YAM V. DEBEEEE. 557 mentioned by Lord Macolespield ; and if investing her with separate property, gives her the capacity of a feme sole, it is only when she is directly dealing with that very property. The cases do not pretend to give her any of the rights of a feme sole in any other view, or for any other purpose." But, although Lord ThurlO'W followed, as we have said, what he supposed to be the rule established by the cases referred to, he nevertheless saw the fallacy upon Which those cases were 'based, as appears by his remarks in the case of Hulme v. Tenant, 1 Bro. C. C. 16, the leading case on this subject. There the separate estate of a wife was held liable for the payment of her bond given for money borrowed, part of which had been borrowed by her husband, and the residue by herself. After referring to the previous cases, Lord Thurlow says: "I take it, therefore, it 4s Impossible to say, but that z.feme covert is competent to act as a feme soZe with respect to her separate property, when settled to her separate use ; but the question here goes a little beyond that ; it is not only how far she may act upon her separate property, — I have no doubt about that; but the question is, how far her general personal engagements shall be executed out of her sep- arate property." Still, although thus clearly seeing the distinc- tion which ought, as it would seem, to have been decisive against the claim, he nevertheless yields to the authority df the previous cases, and holds the separate estate liable. The debt in the last case, as well a-s in the previous cases of Norton v. Turvill, and Standford v. Marshall, was by bond. But it is obvious, that if the principle upon which they were based was sound, it embraced every debt of the wife, however created, whether by bond, nbte, or by a mere oral promise ; and so the doctrine was subsequently applied by Lord Thurlow himself in •the case of Lilia v. Airey, 1 Ves. 277. It is true, that in this case the separate estate consisted of a specific sum allowed by the husband to the wife by way of separate maintenance, and resort has been sometimes had to that fact as explaining the decision. But no reliance is placed upon this circumstance by Lord Thur- low, nor could it properly affect the result. The decision was the legitimate Consequence of the theory of the wife's liability adopted in the previous cases. 'But the unsoundness of this theory was soon discovered, and it was rejected two years afterwards, in the case of Bolton v. 558 SUPPLEMENT. Williams, 2 Ves. 138, by Lord Chancellor Loughborough, who denied the liability of a married woman's separate estate for her general parol engagements, and explained the previous cases upon the ground that the securities which the wife had executed operated as appointments of her separate property, that is, as appropriations or pledges of such property for the payment of the debt for which the security was given. This new theory that a written security was an appointment was as plainly erroneous as that for which it was substituted. It was evidently a pure fiction. The doctrine proceeded upon the assumption that a wife's separate estate is not liable for her gen- eral engagements, but only for such as are specifically charged upon it, and yet held it liable for a bond or note, which in no manner referred to such estate. If these written securities ope- rated as appointments, then it must necessarily follow that every such security would create an equitable charge or lien upon the estate from the time of its execution ; still, they were uniformly treated, not as specific liens, but as mere general debts, having no priority over other and later claims. It was expressly held by Sir John Leach, Master of the Rolls, in an anonymous case, 18 Ves. 258, where the questions arose, that in such cases there was no priority, and that all the debts must be paid equally. But notwithstanding these inconsistencies, this doctrine that a written security was an appointment and a charge, while it was otherwise with a mere parol promise, was maintained substan- tially unchanged, from the time of its introduction by Lord Loughborough, in Bolton v. Williams, until the case of Murray V. Barlee, 4 Sim. 82, when Lord Brougham rejected the dis- tinction between a written security and a promise by parol, and extended the rule so as to make the mere parol engagements of a wife a charge, as well as her bond or note. Speaking on that subject, he says : " I own T can conceive no reason for drawing any such distinction. If, in respect of her separate estate, the wife is in equity taken as a/eme sole, and can charge it by instru- ments absolutely void at law, can there be any reason for holding that her liability, or more properly, her power of affecting the separate estate, shall only be exercised by a written instrument ? Are we entitled to invent a rule, to add a new chapter to the statute of frauds, and to require writing where the act requires uone ? Is there any equity reaching written dealings with the YALE V. DEDEKEK. 559 property which extends not also to dealing in other ways, as by sale and delivery of goods ? Shall necessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing? No such distinction can be taken upon any con- ceivable principle." It is impossible to deny the force and conclusiveness of this reasoning. The distinction which it combats was clearly un- tenable. But the learned Chancellor was, I think, less successful in another part of the same opinion, in which he attempts to explain the ground upon which it had been previously held, that the bond or note of a married woman, and upon which he held that all her engagements, whether in writing or by parol, were charged upon her separate estate. He says, that although origi- nally the Courts supposed that, to affect the separate estate, there must be some real charge, as a mortgage, or an instrument amounting to the execution of a power, afterwards the intention of the wife " was more regarded, and the Court only required to be satisfied that she intended to deal with her separate property." The reasoning by which her intention was supposed to be estab- lished was, that when a married woman gives her bond or note ; or contracts a debt in any other manner, it must be presumed that she intended it to have some effect; and inasmuch as it is void at law, and can have no effect unless it is a charge upon her separate estate, it follows that she must intend it to be such a charge. The intention here spoken of is not an intention which is proved by extraneous evidence dehors the contract, but an intention which is to be inferred from, and is therefore embraced in or manifested by, the contract itself. No court has ever held or intimated that parol evidence was admissible to prove that the bond or note of a feme covert was intended to be a charge upon her estate. To permit this would be in direct conflict with the rule which ex- cludes all parol evidence offered to explain a written instrument. The intent, to be of any importance, must be a part of the con- tract; that is, the true meaning of the contract when justly interpreted must be, that the debt which it creates should be a charge upon the estate. This case, therefore, is not materially strengthened on the part of the plaintiff by the finding of the judge that the defendant intended the debt to be a charge, as that 560 SUPPLEMENT. intention, if it existed, forms no part of the note, which must be regarded as the only evidence of the contract. But the reasoning of Lord Beougham in Murray v. Barlee has been since overthrown, and the doctrine based upon it is not now the doctrine of the English Courts. In the case of Owens v. Dick- enson, 1 Craig & Ph. 48, Lord Chancellor Cottenham appears to have seen that there could be no real foundation for the assump- tion that because a married woman had executed a bond or note, or contracted a debt in any other form, therefore she must have intended to charge such debt upon her separate estate. He first shows, what indeed is very plain, that if the doctrine is sound, then every debt must become a specific lien upon the separate estate, to be paid in the order of its priority; while Lord Brougham held that such debts are all to be paid par~i passu. He then argues very conclusively to prove that a contract which is entirely silent as to the separate estate, and makes no reference whatever to its existence, cannot by any legal reasoning be shown to have been intended as a disposition of such estate. After thus removing the only ground upon which every English Chancellor, from Lord Loughborough to Lord Brougham, had held a bond or note, and upon which the latter had held every other contract to create a charge, Lord Cottenham proceeds to inaugurate an entirely new doctrine on the subject, which is, that equity lays hold of the separate property and appropriates it to the payment of the debt ; not on account of anything contained in the contract ; not because the wife by any agreement, either express or implied, has made the debt a charge, but for reasons which I will give in the learned Chancellor's own words : " The separate property of a married woman being a creature of equity, it follows, that if she has a power to deal with it, she has the other powers incident to property in general, namely : the power of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling pay- ment of those debts, a Court of Equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied." This is by no means a return to the primary doctrine of the Eng- lish Courts on this subject. Lord Thurlow never suggested that equity had any power to take the separate property of a married TALE V. DEDEREE. 561 woman and appropriate it to the payment of debts which she had never in any manner charged upon it. It is an attempt to support, by an entirely new process of reasoning, a course of decision which Lord Cottenham plainly saw could not be sus- tained upon any of the grounds upon which it had been previously placed. But whether we adopt this last phase which the shifting doc- trine in respect to a wife's separate estate has assumed or not, it is certain that the judgment in the present case cannot be upheld. As was shown by Judge Oomstock when this case was here before, mere eqtiity, not resting upon any positive contract, will never seize upon the separate estate of the wife, and appropriate it to the payment of a debt of the husband, for which she is a mere surety ; and it follows from what has been previously said, that the estate of the defendant cannot be held liable upon this note, upon the ground that she intended to make it a charge ; because to make such an intent of any importance, it must be either expressed or implied in the terms of the contract. But I am unwilling to leave it to be inferred that I, assent to the doctrine of Lord Cottenham. It seems to me even less defensible than the theories which preceded it. Those theories conceded that the separate estate of a feme covert could not be appropriated in payment of her debt, unless she voluntarily charged such debt upon her estate. Their error consisted in raising an implication of an actual appointment or charge upon wholly insufficient grounds. But Lord Cottenham's doctrine denies the necessity of any intentional charge of the debt at all by the wife upon her separate estate, although it at the same time makes her power to dispose of that estate the basis of its liability. His argument, when reduced to its simplest terms is, that a married woman who has a separate estate has power in equity to charge any debt she may incur upon such estate ; and inasmuch as the general creditors of such married woman, whose debts have not, been thus charged, have no other means of collecting them, equity takes hold of the separate estate, and appropriates it to their payment. Can this be sound ? I am unable to see any logical connec- tion between the premises and the conclusion. It may be very just, abstractly considered, that equity should thus dispose of the estate; but it is clearly impossible to deduce the doctrine 562 SUPPLEMENT. from the jus diaponendi of the wife, which is its only founda- tion. The truth would seem to be that this mode of dealing with the estates of married women, to the extent to which it has been carried by the English Courts, could not be sustained by any process of legal reasoning, and hence the grounds upon which it was made to rest have been repeatpdly changed, and the rule itself has been fluctuating and uncertain. These views are not new. Judge Story, in his work on Equity Jurisprudence, says : " It has been remarked, that this rule of holding that a general security, executed by a married woman, purporting only to create a personal demand, and not referring to her separate property, shall be intended as prima facie an appointment or charge upon her separate property, is a strong case of constructive implication by Courts of Equity, founded more upon a desire to do justice, than upon any satis- factory reasoning." The Courts of this State have never, as yet, adopted the doc- trines of the English Court of Chancery on this subject; cer- tainly not to their full extent : and it would in my view be inexpedient now to do so, for various reasons. If we attempt to follow a class of decisions which obviously rest upon no solid basis of principles, we can never arrive at any settled conclusion. The views of Lord Cottenham are no more likely to be permanent than those of his numerous predecessors. Some future Lord Chancellor may detect the fallacy of his reasoning as he detected that of Lord Brougham. No rule can ever be stable, the reasons given for which are constantly chang- ing. If we desire precision and certainty in this branch of the laws, we must recur to the foundation of the power of a feme covert to charge her separate estate ; and this has heretofore arisen solely from her incidental power to dispose of that estate. Starting from this point, it is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would, of course, become a lien ; upon a well founded presumption that the parties so intended and in analogy to the doctrine of equitable mortgages for purchase money. But no other kind of debt can, as it seems to me, be thus charged with- out some affirmative- act of the wife evincing that intention ; and there is no reason why her acts in this respect should not be YALE V. DEDEEEE. 563 tested by the same principles and rules of evidence ■which are applied to similar questions in other cases. But there is a strong additional reason why this court should decline at this time to adopt the fictitious theories on this sub- ject which have so long prevailed in the English Courts. Mar- ried women are not hereafter to be indebted to equity merely for protection in the enjoyment of their separate estates. They hold them by a legal title and have a legal right to dispose of them. The Acts of 1849 and 1860 are henceforth, if not repealed, to be the source of their power over such estates. There is no longer any foundation for the argument, that as equity creates and protects these estates, equity has a right to control them. Rules, therefore, which have grown up under this idea, which I regard as to some extent illusory, will be hereafter entirely inappropriate. I shall not attempt at this time to put a con- struction upon those acts. That of 1860 authorizes married women to carry on any trade or business upon their own account ; but with this exception, the only contracts which it empowers them to make, are those which have direct reference to their separate property : and even this power, where the property con- sists of real estate, is subjected to a very important restriction ; the consent in writing of the husband, or the authority of a Court, being rendered essential to its exercise. These provisions show that the legislature has not even now intended to remove the common-law disability of married women to bind themselves by their contracts at large. To be obligatory upon them or their estates under our latest statute, their con- tracts must relate entirely to their separate property, or to the particular trade or business in which they are engaged. This legislation harmonizes with the views I have advanced in regard to the effect of the contracts of married women. It lends no countenance to the idea that the mere possession of separate estates renders their contracts having no relation to such estates binding upon them. It would be impossible, as it seems to me, to hold, under our statutes, that the mere execution of a security by a married woman not connected by agreement with her estate could be a charge upon it ; and yet the power of disposal con- ferred by these statutes, is, to say the least, as complete as that previously possessed by married women by virtue of the jus dis- fonendi, which resulted from mere ownership. There would. 564 SUPPLEMENT. therefore, be a manifest incongruity in holding, In the present case, that prior to our late statutes the debt of a feme covert not connected with her separate estate, nor in aijy manner charged by contract upon it, could be enforced against it, and then deciding, as we evidently must, that under those statutes an actual charge is necessary. The judgment of the Supreme Court should be reversed, and there should be a new trial, with costs to abide the event. All the judges concurred ; Comstock, Ch. J., Denio and Bacon, Js., upon the ground that the case as now presented did not vary from that when here before. A majority concurred in the opinion that the intention to charge the separate estate must be stated in the contract itself, or the consideration must be one going to the direct benefit of the estate. Judgment reversed, and new trial ordered^ Yale v. Eliza Ann Dederer. (68 N. Y. 329. Court of Appeals of New York, 1877.) Church, Ch. J. This is the third time this case has been before the Court. The first time it was decided that in order for a married woman to charge her separate estate with a debt not contracted for the benefit of her estate, it was necessary that there should be evidence of an intention thus to charge it, and that a note or other obligation was not sufficient evi- dence. 18 N. Y. 265. On the next trial it was found that the defendant did intend to charge her separate estate, and this Court held that when tlie obligation was in writing, such intention must be expressed in the instrument creating the obligation. 22 N. Y. 450. Upon the last trial it was sought to take the case out of the rule by evidence tending to show tliat the property was purchased by the husband as the agent of the defendant, and for her benefit and the benefit of her separate estate. The consideration of the note in suit was the purchase by the husband, in 1852, of twenty-one cows at twenty-six dollars YALE V. DEDEEEE. 565 and fifty cents a head, and in 1853 of twelve cows at twenty - nine dollars a head. For the first purchase the husband gave his individual note, payable in the fall, when a new joint and several note was given by him and the defendant, and for the last purchase the husband gave his individual note, and several months thereafter he and the defendant gave their joint and several note for the amount of the last note and of the note for the first purchase. It is found by the judge that the de- fendant signed the note as the surety of her husband, and that none of the consideration for which said notes were given went to enhance the separate estate of the defendant, nor did any part thereof go to her own benefit, and he refused to find that the husband purchased the property as agent of the defendant. There is evidence sufficient to support each of these findings, the rule being that if there is any evidence justifying a finding, this Court will not disturb it, and the rule is also well settled that this Court will not consider the evidence for the purpose of re- versing a judgment entered on a trial by a single judge or referee, and that the Coujt will imply findings warranted by the evidence to sustain the judgment. It is claimed, however, that there are other findings, which so impair the force of those referred to as to justify a reversal of the judgment. These are that the defendant owned three and the husband two farms; that all the farms were managed by the husband ; that the cows were purchased to be used on said several farms, including the farms of defendant; that the cows were sold upon the agreement that the defendant was to give her note, and upon representations of the defendant's ability ; that they were used indiscriminately upon all the farms, including those of the defendant ; that those first pur- chased were kept upon one of defendant's farms until spring; that they were purchased on the credit of defendant and of her estate ; and that she intended to charge her separate estate for the amount. From the findings and the evidence it must be assumed that the husband managed the farms, including those of his wife, for his own benefit ; and both findings and evidence establish that the property became by the purchase his property. The circumstance that the cows were at times used upon the farms of the defendant, and changed about between these and the farms of the husband. 566 SUPPLEMENT. is entirely consistent, not only with, but tends to corroborate, the position that the husband managed the farms on his own and not on his wife's account, and the fact that the property was purchased on his wife's credit and that of her estate, is consistent with her being a surety. The plaintiff sold the property, doubtless, upon the credit of the defendant, and of her estate ; but this might be equally true, whether she was principal or surety, and the same might be said in respect to any other person proposed as surety. Neither of the facts found upon request are inconsistent with the express finding that she signed as surety for her husband, and that the purchase was not for the benefit of her separate estate. The fact that she intended to charge her separate estate was not evidenced by being expressed in the writing. This was the precise point decided when the case was last before the Court. 22 N. Y. supra. The point that the refusal to find, as requested, that if the consideration was in any degree for the benefit of the separate estate of the defendant, the debt is a charge upon her estate was error, is answered by the express^ afiirmative finding that " none of the consideration " of said notes " went to enhance the separate estate " of the defendant, " nor did any part thereof go to her own benefit," without considering whether the abstract proposition, as stated in the request, as a question of law, is cor- rect or not. It is impossible to distinguish the case in its legal aspects from what it was when last before this Court, and the decision then made must stand as the law of the case. It is res adjudicata between these parties. In the case of The Manhattan B. and M. Company v. Thompson, 58 N. Y. 80, in delivering the opinion of the Court, I intimated a regret that the rule had not been established differently, so that, since married women are allowed by statute to take, hold, manage, and dispose of property as fully and completely as if they were unmarried, the signing of a note or other obligation should be deemed sufficient evidence of an intention to charge their separate estates, and further reflection and examination have confirmed the impression then expressed, but I then thought that the rule had been too long established as the law of the State to justify this Court in over- ruling it, and I am still of that opinion. It is better to adhere to a rule of doubtful propriety, which has been deliberately set- tled for a long series of years and repeatedly reiterated by all the Courts of the State, than, by overturning it, to weaken the BANK V. PEDYN. 567 authority of judicial decisions, and render the law fluctuating and uncertain. The two decisions referred to were made by this Court when it was composed of judges of eminent ability and learning, and there are now differences of opinion among judges and lawyers upon the subject, and there is every reason for referring the question to the legislative power, to determine definitely what rule shall finally prevail. It is proper to add that the learned counsel for the appellant is mistaken in supposing that the dissenting judges in 58 New York supra intended by their votes to overrule the decision of Yale V. Dederer, 22 N. Y, supra. They voted to sustain the action in that case within that decision. All the members of the Court concurred in the impropriety of overruling the decision. The judgment must be aflBrmed. All concur. Judgment affirmed. i^ .j-^y ■ /^'^ Bank v. Prutn. (90 N. Y. 250. Court of Appeals of New York, 1882.) CoTitract of Wife by Promissory Note payable to the Order of her Husband and discounted by him. — When her Separate Estate is bound. Tract, J. A married woman cannot bind herself by con- tract, unless, first, the obligation was created by her in or about carrying on her trade or business; or, second, the contract re- lates to or is made for the benefit of her separate estate; or, third, intention to charge the separate estate is expressed in the instrument or contract by which the liability is created. The Manhattan Brass and Mfg. Co. v. Thompson, 58 N. Y. 80; Nash V. Mitchell, 71 id. 199 ; 27 Am. Rep. 38 ; or, fouHh, the debt was created for property purchased by her. Tiemeyer v. Turnquist, 85 N. Y. 516 ; 39 Am. Rep. 674. No intention to charge the separate estate of the defendant was expressed in the notes in question, and the Court before whom the cause was tried has found as a fact that the defendant was not engaged in carrying on any separate trade or business at 568 SUPPLEMENT. the time of the giving of the notes. The only possible ground of liability remaining, therefore, is that the contract was in fact made for the benefit of her separate estate, or that she repre- sented to plaintiff that it was so made, and that in discounting the notes it acted upon the faith of such representation. But the trial Court has also found that the notes were not in fact made for the benefit of her separate estate, and that no part of the avails thereof were used in, or upon, or went to the benefit thereof ; and there would seem to be abundant evidence to sup- port such finding. We have only then to consider whether the defendant, at the time the money was obtained upon the notes, represented to the plaintiff that they were for the benefit of her separate estate, aud the plaintiff discounted the notes upon the faith of such representations. It is not pretended that the defendant made any verbal repre- sentations to the discount committee, or to any officer of the bank. The only representations claimed or relied upon by the plaintiff are those made by the defendant's husband, John F. Pruyn, and such inferences as may rightfully be drawn from the notes in question, and the checks given by defendant. There can be no doubt that the representations made by her husband, John F. Pruyn, at the time of obtaining the money, were suffi- cient, if binding upon the defendant, to subject her to liability for the amount of the notes. But the trial Court has found as a fact that the husband, was not the agent of the defendant in this particular transaction, and that he was not her general agent, and that he had no authority to make the representations and statements alleged to have been made by him to the discount committee of the plaintiff's bank ; " nor were any of the repre- sentations as to said notes mentioned in the complaint, or the avails thereof, or the use or application to be made of the same, or of the avails thereof, made by her, or by her husband as her agent. " There remains to be considered, therefore, only the effect of the notes and of the checks, which were in her handwriting, as representations made by the defendant to the bank. A prom- issory note in the ordinary form, signed by a married woman, payable to the order of her husband and indorsed and presented for discount by him, is not a representation upon its face that the note is made to raise money for her. No implication, pre- BANK V. PHUYN. 569 sumption or impression that she was to be benefited by it in her business or estate could be drawn from its form, and from the fact that she had given it to her husband for the purpose of hav- ing it discounted. Second National Bank v. Miller, 63 N. Y. 639. To give such a note vitality and effect it must be made to appear, by evidence aliunde the instrument, that it was made in her separate business, or for the benefit of her separate estate. The fact that she owes a separate estate is not alone sufficient. Broome v. Taylor, 76 N. Y. 564. The checks drawn by the defendant and upon which the officers of the bank testify that the proceeds of the discount were subse- quently paid to the husband do not appear to have been shown to the discount committee, or to any officer of the bank previous to or at the time the notes were discounted. The first check of the defendant for $500 was dated on the 14th of September, 1876, the date of the original note for the same amount^ but it appears from the testimony of Van Hoevenbergh, the cashier of the bank, that this check was not charged until the 18th. On the 6th of January, a note of $800 was discounted, in part renewal of the $500 note and for $300, in addition, and " on the 8th of January, " testifies the cashier of the bank : " Mrs. Pruyn drew a check on our bank for $300, and we paid that check out of John P. Pruyn's money." No officer of the bank testifies, that he knew of the existence of these checks, or that he was in any way influenced by them in discounting the notes for the de- fendant's husband. It is not necessary to consider what infer- ence might have been drawn from the checks had they been exhibited to the officers of the bank and relied upon in making the discount. They were not so exhibited, and as a representa- tion made by the defendant, constitute no part of the case, and must be eliminated therefrom. It follows that the defendant was not liable to the bank for the money obtained upon the notes in question. ^ The judgment of the General Term, affirming the judgment entered on the report of the referee, should be affirmed, with costs. All concur. Judgment affirmed. 570 SUPPLEMENT. Bank v. Snippen. (54 Hun, 394. Supreme Court of New York, 1889.) Contract of Wife hy Promissory Note payable to Order of Husband and discounted by him. — When her separate Estate is bound. Van Brunt, P. J. : The complaint alleges that the defendant, Catherine Sniffen, made her certain promissory notes in 1877 and 1888, in writing, and copies of such notes are set forth therein. Bach of said notes was in the same form, but varied in amount. The form was as follows: "Four months after date I promise to pay to the order of John Sniffen, $2,500, at the Bowery National Bank, value received. "Catherine Sniffen." The plaintiff alleged that the defendant delivered the said notes to the payee, who thereafter, and before maturity, in- dorsed the said notes and for value delivered the same to the plaintiff. The defendant set up that, at the time of the making and delivery of the said notes to Sniffen, the payee thereof, the defendant was a married woman and the wife of said Sniffen, the payee of said notes, and that the same were made and deliv- ered without consideration. The only evidence offered at the trial were the notes and testimony of the cashier of the defend- ant, that they were presented for discount by John Sniffen and discounted for him and credit given therefor to him in his ac- count with the bank. And it was admitted that the defendant was a married woman and the wife of John Sniffen. Upon' these facts being established, the Court directed verdict for the plaintiff and ordered the exceptions to be heard in the first instance at the General Term. The plaintiff is undoubtedly a bond fide holder of the notes in question, having paid full value therefor to the payee. But notwithstanding this fact as the law stood prior to the enactment of chapter 381 of the laws of 1884, no right of recovery existed. In the case of the Second National Bank of Watkins v Miller 63 N. Y. 639, it was definitely held that where a married BANK V. SNIFFEN. 571 woman had made certain notes payable to the order of her hus- band, which were presented by him for discount to the plaintiff, the notes were nullities, and no implication, presumption or impression that she was to be benefited by them in her business or estate could be drawn from their form, or from the fact that she had given them to her husband for the purpose of having them discounted, but that in order to charge her it must be made to appear by evidence aliunde the instrument that they were, in fact, made in her separate business or for the benefit of her separate estate. This same rule was laid down in the Saratoga County Bank v. Pruyn, 90 N. Y. 250. The question, then, presented is whether the enactment of chapter 381 of the Laws of 1884 has made any change in the law which will support a recovery upon the part of the plaintiff. The statute is as follows: "§ 1. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary. " It is clear that by this section the rules laid down in the cases cited have been abolished, except so far as exceptions arise under the next section, to which attention will be hereafter called ; and that it is no longer necessary, in order to hold a married woman upon her contracts, to prove that the obligation was created by her in or about carrying on her trade or business, or that the contract relates to or is made for the benefit of her separate estate, or that the intention to charge her separate is expressed in the instrument by which the liability is created. The exception, to which attention has been called, is con- tained in section 2 of the act, which provides that this act shall not apply to any contract that shall be made between husband and wife. As already stated, unless the obligation which is the subject- matter of this suit is found to come within the restriction of the section last quoted, the plaintiff has a right to recover. The notes in question were given for value received by the maker, in which case they would have been given for the benefit of her separate estate, and she would be liable upon them, within the 572 SUPPLEMEITT. principles laid down in Tiemeyer v.. Tumquist^ 85 N. Y. 516, or it was a loan of her credit by the wife to the husband. The cases already cited show that there is no presumption that the notes were given for value, and, therefore, it must be assumed that they were mere accommodation paper and that they were a loan of her credit by the wife to the husband.. If that is the case, then the notes were no contract between the husband and wife. There was no obligation which could be enforced by the husband against the wife under any circumstances. Where two parties execute an instrument without any intention of creating an obligation between them there is no contract. An intention to contract is an essential element of every contract. Therefore, if these were accommodation notes, there was no intention on the part of the maker to contract with the payee, and no inten- tion on the part of either of the parties that any obligation, as between themselves, should be entered into because of the giving of the notes. Although the ordinary rule is that a promissory note is a contract between the maker and the payee yet, if the parties to the instrument intend differently, it is difficult to see, how a contract can spring into existence when neitiier intended that the act done should result in a contract as between them. It follows from this, then, that the making of this promissory note by the defendant, and the giving of it to her husband, was not the making of any contract between them and was not in- tended so to be. When, therefore, did the contractual relation spring into existence ? Clearly not until the plaintiffs had dis- counted the paper in question and given the proceeds of such discount to the husband of the defendant. It was then for the first time that a contract did actually spring into existence, and it was not intended by the parties to this paper imtil that event took place, that any contract because of the making and delivery of the paper should arise. In the loaning of her credit to her husband the wife took this method, and in so doing, as already stated, no contractual relation was formed between the husband and the wife, nor was any contract whatever made between them by reason thereof. It would not be contended for a moment that if the husband and wife had been joint makers of this paper, payable to their own order and indorsed by them, that any con- tract within the exception of section 2 of the Act of 1884, would have been entered into. But although the; form of the paper is BANK V. SNIFFEN. 573 different, yet the substantial liability to the holders of the paper of the husband and wife is the same, each being liable to be pursued for the recovery of the amount agreed to be paid upon the face of the paper. It may be a question whether it was the intention of the legis- lature to exempt contracts of this description from the action of the first section of the act of 1884. It may very well be, and , probably was, the intention of the legislature to guard the wife against the making of contracts between herself and her husband which might be enforced by him against her separate estate, and that the policy of the law was not to promote traffic between the two except under the same restrictions that had heretofore existed, and that it was contracts of this character to which the exception in the statute was intended to apply, and not to those transactions which were contracts in form between hus- band and wife, but which could not be enforced until the right of some third party had intervened. That this interpretation of the act of the legislature is in accord with its intention seems to be fortified by their passage in 1887 of the act (chap. 537), which permits husband and wife to convey directly to each other real estate without the intervention of a third person. By the passage of this act the legislature indicated that it was their policy to allow husband and wife to do directly that which here- tofore they had been only enabled to do through the interven- tion of some third party who really had no interest in the transaction. It seems to be reasonably clear, that if these notes had been made by the defendant to the order of herself and indorsed by her and given to her husband, and he had had them discounted, that a liability would have arisen ; and there could be no ques- tion as to its being a contract between husband and wife, and thus -within the exception contained in the statute of 1884, and yet, so long as the husband was the holder of the notes, the re- lation between the husband and wife in respect to the paper was precisely the same and her obligation under the paper to her husband in no manner varied from what it was in the case at bar. Now, if the notes had been made in that form, and had been discounted by the bank for the benefit of the husband, a recovery could be had, and it would not be deemed a contract between husband and wife merely because they could not be 574 SUPPLEMENT. used by the husband for the purpose of having them discounted without his indorsement. It seems, therefore, that there being no rights whatever con- ferred upon the husband by reason of the making and delivery of this paper to him, that the notes were not contracts between husband and wife, although, in form, they appeared so to be. The prohibition of the act is against contracts between husband and wife; that is, agreements or instruments made between husband and wife which would be valid contracts under the pro- visions of the first section. The alleged contract between the husband and wife arising out of the notes in question, being no contract at all, would not be valid even under the broad provi- sions of the first section of the act in question, and, therefore, the exception contained in the second section can have no appli- cation. No contract, therefore, between the husband and wife springing into existence until the plaintiffs became the holder of the paper, and there being no contract between the husband and wife, the provisions of section 1 of the act became applicable. We are of opinion, therefore, that the plaintiff was entitled to recover, and that the exceptions of the defendant should be over- ruled and judgment ordered for the plaintiff upon the verdict. Bbadt and Daniels, JJ., concurred. Judgment ordered for the plaintiff upon the verdict. Catharine Longendtke v. Peter R. Longendtke. (44 B^rb. 366. Supreme Court of New York, 1863.) Wife's Action against Husband for Assault and Battery. By the Court, Hogeboom, J. It is conceded by counsel that by the rules of the common law husband and wife could not sue each other in a civil action. The only question therefore is whether by statute that right has been conferred. It is claimed that this has been done by laws passed in 1860 and 1862. The law of 1860 (Laws of 1860, ch. 90, § 7), was passed, it is obvious mainly if not exclusively to enlarge and establish the rights 'ONGENDYKE V. LONGENDYKE. 575 of property in married women which had been conferred by the previous acts of 1848 and 1849. In furtherance of that object, section 7 declares that married women may sue and be sued in all matters relating to their property, which may be their sole and separate property or come to them from any person except their husbands ; and may bring actions to recover damages for injuries to their person or character, against any person or body corporate, which damages when so recovered shall be their sole and separate property. The right to sue her husband in an action of ^assault and bat- tery may perhaps be covered under the literal language of this section ; but I think such was not the meaning and intent of the legislature, and such should not be the construction given to the act, for the following among other reasons : — 1. It is contrary not only to the rule of the common law but to the spirit and intent of the married women's acts, the object of which was to add to her property rights as a, feme sole, and to distinguish her property from her husband's, and not to confer rights of action upon her, against him. 2. It is contrary to the policy of the law, and destructive of that conjugal union and tranquillity, which it has always been the object of the law to guard and protect. This has been car- ried so far, that although the language of the code and of the law of 1847, p. 630, was, when literally construed, comprehen- sive enough to allow all persons, with one limited exception, to be witnesses, it was held not to allow husband and wife to be witnesses for or against each other, and such is now held to be the rule applicable to this relation, with certain exceptions. Erwin v. Smaller, 2 Sand. 340; Pillow v. Bushnell, 5 Barb. 156; Hasbrouck v. Vandervoort, 4 Sand. 596; City Bank v. Bangs, 3 Paige, 36; People v. Carpenter, 9 Barb. 580; Marsh V. Potter, 30 id. 506 ; Babbott v. Thomas, 31 id. 277. 3. The effect of giving so broad a construction to the act of 1860 might be to involve the husband and wife in perpet- ual controversy and litigation, to sow the seeds of perpetual domestic discord and broil, .to produce the most discordant and conflicting interest of property between them, and to offer a bounty or temptation to the wife to seek encroachment upon her husband's property, which would not only be at war with do- mestic peace, but deprive her probably of those testamentary 576 SUPPLEMENT. dispositions by tbe husband, in her favor, which he would other- wise be likely to make. 4. Under the acts of 1848 and 1849, which are quite compre- hensive, the courts held that they did not remove the wife's common-law disability to contract, otherwise than as respected her separate property. They therefore held her promissory notes, and executory contracts invalid. Evincing a disposition not to enlarge the acts in question beyond their most plain and obvious scope, nor to remove the disabilities of the common law, to any greater .extent than was required by the plain words of the statute. Coon v. Brook, 21 Barb. 646; Dickerman v. Abrahams, Id. 551 ; Bass v. Bean, 16 How. Pr. Rep. 93 ; Arnold V. Ringold, Id. 168 ; Switzer v. Valentine, 4 Duer, 96 ; Yale v. Dederer, 18 N. Y. Rep. 265. The act of 1860 was doubtless intended to enlarge this right to make bargains and contracts, and sections 2 and 8 of that act would appear to give unqualified power to make bargains and contracts in regard to her property ; but if we follow the spirit of the previous decisions, it is very doubtful whether they would be held so far to destroy the unity and identity of husband and wife as to enable her to bargain and sell her property to her husband. I refer to this only by way of illustration, and not as intending to express any positive opinion upon the construction which ought to be given to the latter sections. 5. The act of 1862 (Laws of 1862, chap. 172), does not materially differ from the act of 1860, or require a different construction. It repeals some sections of the act of 1860. It confers the power to sue and be sued in somewhat broader terms than the act of 160 (see sec. 7), but not in a manner to lead to the implication that the husband was intended to be permitted to be sued by the wife for injuries to her person and character, as in an action of assault and battery, or slander. On the con- trary, section 8, which provides that her bargains or contracts shall not be binding upon her husband, nor his property liable therefor, and section 6, which provides that in actions brought or defended by her, neither the husband or his property shall be liable for the costs thereof, nor the recovery therein, give strong color to the presumption that neither her bargains or contracts , or actions, which the law intended to authorize, were bargains, contracts, or actions with her husband. PERKINS V. PERKINS. 577 I think the referee erred in sustaining the action ; and if I am right on that point, it is unnecessary to examine the other point, already incidentally considered, — whether the husband and wife were competent witnesses against each other in a civil action between them. The judgment should he reversed, and a new trial granted, with costs to abide the event. John E. Perkins v. Christina Perkins. (82 Barb. 531. Supreme Court of New York, 1872.) Husband's Action against Wife for services. P. Potter, J. This is an action at law, brought by a husband against his wife, to recover, in an action of assumpsit, for ser- vices claimed to have been performed for the wife. At common law the husband and wife by marriage became one person. The very being or legal existence of the woman was, by the common law, suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing and protection she performs every act 1 Black Com. 442; Littleton, §§168, 291; Bright on Husband and Wife, 2. It was in consequence of this unity of person be- tween them that neither the husband nor wife could make a grant or contract the one with the other. Shepard v. Shepard, 7 Johns. Ch. 60 ; Voorhees and wife v. Presbyterian Church, 17 Barb. 104, 105; White v. Wager, 25 N. Y. 329, per Denio, J. ; McQueen on Husband and Wife, 18. By these and numerous other authorities, the husband and wife are one person. In this condition of unity, a husband and wife could no more contract with each other than one individual could contract with himself; the act would be a nullity. Modern statutes in this country, however, have wrought some changes in this relationship. The incapacity of a wife to make contracts has, to some extent, been removed by these statutes. Except to the extent that this in- capacity has been removed by statute, the marriage relation, in its oneness of unity, remains, unchanged, as it was at common 37 578 SUPPLEMENT. law, before those statutes were enacted. The new powers con- ferred on married women, by these statutes, were in derogation of common law, and are to be strictly construed. Coke's Inst. 97, h; Graham v. Van Wyck, 14 Barb. 531, 532; 4 Sandf. 236. These modern statutes relate only to the control and manage- ment by niarried women of their sole and separate estate. As to that, the wife is to be deemed a, feme sole. The husband has had no new powers conferred upon him, nor has he been released from any of the duties and obligations imposed upon him. His condition in this marriage relation is unchanged, so far as re- gards its unity. The wife is released from no part of' this unity, except in so far as it is expressed in these statutes. In White V. Wager, 25 N. Y. 333, Denio, J., speaking of these statutes, says : " No doubt there was an intention to confer on the wife the legal capacity of a feme sole in respect to the con- veyance of her property, but this does not prove that she can convey to her husband." Then he proceeds to show that as femes sole have no husbands, the implication is against the power to convey to a husband. These statutes, being in derogation of the common law, are to be construed with reference to the common law as it existed when they were passed. Dwarris says: "It is not to be pre- sumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers, that the act did not intend to make any alteration other than what is specified and besides what has been pronounced; for if they had that design, they would naturally have expressed it." And Chancellor Kent says: "This has been the language of courts in every age," repeating the lan- guage of Dwarris, that " it is not to be presumed that the legis- lature intended to make any innovation upon the common law further than the case absolutely requires. " 1 Com. 464. The instances are repeated in our books of reports, holding this con- struction to be sound. It would be contrary to the public policy of the law that there should be a divorce from that con- jugal union and mutual confidence demanded by the marital relation. There has been no expression, either in the titles or enacting clauses of the statutes for the protection of married women, or their property and estates, in their letter or spirit, of an intent to destroy the unity or identity of husband and wife. PERKINS V. PERKINS. 579 or which demands or authorizes any such construction as that they may sue or be sued, at law, by each other. It would be monstrous ; it would open a door to intolerable controversy and litigation, and sow the seeds of perpetual domestic discord and broil. Longendyke v. Longendyke, 44 Barb. 369. It would convert the holy institution and honored relation of marriage into a nursery to cultivate the worst passions and infirmities of humanity. Surely no such downward progress was intended by the legislature, in this day of advancement in civilization, — of our natural progress in knowledge and intelligence, and of our advanced social and political condition. The spirit and intent of all the statutes enacted to protect married women in their estates, and to give them in that par- ticular, the powers of femes sole, are limited, in their construc- tion, to the exercise of that power. Though very full powers in that regard are conferred, as they should be, in order to their proper enjoyment, yet all these statutes, being in pari materia, are to be construed together as one, in their letter, spirit, and intent, precisely as if they were all contained in one act. The statutes of 1848 and 1849, on their face, and in their letter, recognize the disqualification of husbands and wives .to contract with each other, in the right to take and receive estates from any person other than the husband. Why except him, but to prevent the construction that the common law was intended to be abrogated ? These statutes are the beginning, and they continue to be a part, of a new system and policy, in relation to the separate estates of married women. What part of the com- mon law, then, is abrogated, except that which the statutes ex- press? Has any jurist — has any lawyer — supposed that a husband is not now bound to support, provide for, and main- tain his wife ? That from the obligations and duties which the marriage contract imposes he has been discharged by these new statutes ? That his power to command, and her duty to obey all reasonable commands, has been severed and abrogated ? Do they confer upon her the option to say he shall not enjoy his " marital rights, and to select her own chosen substitute to exer- cise them ? Do they, in fact, amount to a practical divorce ? Better, far, for the permanance of .the blessings of the marriage relation ; better far for the peace of the socie'ty, the union and tranquillity of family relations ; that the divorce should be total 580 SUPPLEMENT. at the option of the parties, than that there should be a partial one created by an undefined line to be guessed at by loose inter- pretation; thus leaving domestic bickerings to afflict, if not overwhelm, the courts ; and allowing the parties to a marriage contract to sue each other for every fireside controversy. Did any one ever suppose that the possession of some separate estate by the wife released the husband, in any degree, from the common-law liability and duty to support and maintain his wife? If he refuses or neglects to furnish such support, may not the tradesman or mechanic sue the husband for necessaries fur- nished for her support ? Would it be ' a good defence to an action for such legal liability, for the husband to plead that the wife had a separate estate ? Is the common law changed, in this respect, because the husband abandons or lives separate from her ? If the tradesman sues for necessaries furnished to the support of the wife, is the common law changed, that re- quires him to prove that the husband has omitted to furnish them ? Could the tradesman sue the wife, upon such an ac- count, because the husband refused to pay it ? If the husband sues for such necessaries furnished, whom would he sue ? What law has given him a better right than a stranger ? Must he not sue the same person — sue himself — and prove his own omis- sion to furnish the necessaries ? Why can he not do this ? Because of that legal unity which no statute has dissolved. If he may sue her for his services, as a legal right, in a court of law, why may he not sue her for damages for withholding any marital right ? Where then are the parties to stop ? What a vast new field will be thus opened to litigation ! Little did sober legislators conceive of the result of these new creations by con- struction, when they were engaged in making a protective stat- ute, to secure the estates of married women. Barely to state these results and consequences is in effect to give reasonable and practical interpretation to the meaning and intent of the statutes in question. But at common law, before the passage of these statutes, though husband and wife were held to be but one person, in law, still that person was represented by the husband, in. all courts and places, except in equity, where the separate rights of the wife could be sued for, defended, and protected. In all other respects her legal existence was suspended; she was not known. The PERKINS V. PERKIKS. 581 recent statutes, made in her behalf, not his, have, to the extent expressed therein, enfranchised her, as to those rights, and as to those only. They have extended no powers, they have con- ferred no new rights upon th*e husband. If when her separate estate is affected, she can sue, and sue alone, by them she is allowed even to sue her husband, if he interferes with it to her disadvantage. They have not — certaihly not in express terms — conferred the corresponding right on him to sue her. They were passed for her protection, not his. She has just such power as the statute expressly confers on her, no more. Nor has he any more. They have conferred none on him. They have released nothing to him. In White v. Wager, Denio, J., says, page 332: "It is quite apparent from the provisions of [these] acts that the design was not to confer any additional advantage upon married men, but it was intended solely for the benefit of the other party to the marriage relation." The statute of 1862 (chapter 172, § 3) does, in fact, confer upon a married woman the power, in general terms, to sue and be sued in all matters having relation to her sole and separate property ; and also to recover damages for injuries to her person (which damages, before, belonged to her husband). This is a conference, or rather a restoration, of marital rights upon her, not on him ; and if it includes the right to sue him, for interfer- ence with her separate estate, it does not, in terms, confer on him any right to sue her. But even as to her right to sue him, in an action at law, it has been adjudged to the contrary, since the passage of that act, in two general term cases. Gould v, Gould, 29 How. Pr. 441 ; Longendyke v. Longendyke, 44 Barb. 366. These cases received much consideration by able and dis- tinguished jurists, and we feel bound to follow their views. The " right to sue and be sued " was a right that the hushaihd always possessed, before the statute, and independent of it. A statute conferring such a right on him would add nothing to his power in this regard. But could he, therefore, though possess- ing such a right, sue his wife ? Why not ? He had, before, all the power at common law, that she had conferred upon her by statute. Did any one ever suppose that under this power he could sue his wife, in an action at law, upon a contract made between them? Does the conferring, by law, an equal power 582 SUPPLEMENT. upon the wife, increase his powers ? If the unity of the relation is so severed by this act that he can sue her for his labor, may she not sue him for hers ? May she not sue him for the labor and care of nursing and taking care of his children ? Nay, may she not sue him even for the labor of bearing them ? To what do not these several rights to sue extend ? "Where is the jurist that dares to draw the line, to say how much of the disability is removed, and how much jremains ; or to declare that no line of limitation exists ? Until the highest court of review shall otherwise determine, I shall feel bound to hold that the unity of person created by the marriage contract between husband and wife,- has been no fur- ther severed than the statutes, in express terms, or hy necessary implication, have effected that purpose ; that the duty of the hus- band is,' now as ever, to labor and provide support for his wife, and that it has not been changed by those statutes ; that those statutes have not conferred the right upon husband and wife to make contracts between themselves to that end ; but on the con- trary, the legislature, in the last of these statutes [Laws of 1867, ch. 887), recognize the unity of the persons and relations of husband and wife, in expressly reserving, and exempting them from communicating or disclosing, even as witnesses, any confidential communications made by one to the other during their marriage. The legislature, it is very clear, then, regarded the sacredness and unity of the relation, not as dissolved, but as existing, to some extent. If we are right in this vie^, the jus- tice erred in nonsuiting the plaintiff as demanded. I am not unaware that there are various cases holding that married women having separate estates may employ their hus- bands as agents to assist in managing them ; but this is quite a different thing from the holding that the husband may bring an action against his wife, at law, for his services. This agency may be the best way in which he may labor to support his wife, or aid in doing so. She ought not to be deprived of this aid in managing her estate. This power to make contracts existed at common law; but it was as agent, not as an independent and separate individual. The wife might be the agent of the hus- band, and in that character make contracts which would bind him; and such agency need not even be expressed, but was implied from a variety of circumstances. This is in aid of the PERKINS V. PERKINS. 583 purposes and comfort of married and domestic life. So, now, the husband may be the agent of the wife in regard to her sepa- rate estate. And the term contract, between them, means jnst this — a contract of agency. So reading some of the obiter re- marks found in the reports, giving the word contract, as between husband and wife, this limited meaning, it is well enough; beyond this, it is calculated to mislead. Nor am 1 unaware of the obiter remark, made in the case of Fairbanks v. Mothersell, reported in 60 Barbour, 407, as fol- lows : " I suppose, as the law now is in regard to the separate property of married women, they may make special contracts with their husbands, and let jobs to them of particular work, such as building and the like, the same as though they were strangers." From what we see of this reported case, this re- mark was not at all necessary to the decision. It was not a question between husband and wife, or whether one could en- force, at law, such a contract against the other. It was a mere question of agency, so far as we can judge. The wife, in that case, had given the husband the job of digging a cellar, and lay- ing the cellar wall, upon her separate property, as distinguished from the other part of the building. She agreed to pay him 1138 therefor, and did pay him; but could he have enforced the con- tract, at law ? The husband employed the plaintiff to assist ; the plaintiff supposing, at the time, that the husband was the owner. Afterwards, finding out to the contrary, and that the benefit and advantage was to the wife, he sued the wife, treating the husband as her agent: and so the jury found the fact to be. This was right. The jury correctly found, in the justice's court. The judgment was rightly affirmed on this ground, in the county court, and by the Supreme Court. But I do not see how the question arises in the case, that establishes the right of a hus- band to sue his wife, at law. That question did not arise. The court does, indeed, remark, as I have said, obiter, that they suppose women 'may make contracts with their husbands. I concur in this, if the appointment to an agency, in such case, can be called a special contract. I do not believe it is a legal binding contract, existing between husband and wife. And as the , point we have been considering was not in that case, it is, perhaps, a little unfortunate that' the first marginal note of the reporter should be based upon an obiter remark. The case does 584 SUPPLEMENT. not sustain this note. I should greatly hesitate to question the direct adjudication of that learned and able court ; but they did not decide the question. It was not there to be decided. But if we were even to look at this case upon the merits, con- ceding the right of the husband to sue, the case is without merit. An implied contract could never exist at law, between a husband and his wife, whom he was bound to support, for ser- vices done for her. The implication is the other way. The fact that they had previously lived separate, by turns, proves nothing but a condonation when they again came together. If an express contract was proved, according to the plaintiff's own testimony it was not only to be for a year, but was conditioned that he should not drink whiskey. I think his own testimony showed that there was no performance on his part, but on the contrary he proved a breach ; and he should have been nonsuited. But I do not put much stress upon this review on the merits. Since preparing the foregoing opinion, two cases have ap- peared, reported in 4 Lansing's Reports, namely, Adams v. Curtis, p. 164, and Minier v. Minier, p. 421, which are supposed to be in conflict with the views above expressed. They are not so, in the material point. In Adams v. Curtis, the case was correctly decided, upon what appeared in it. That was an ac- tion by a wife against a copartnership, of which her husband was a member. The husband did not appear in the case, and his copartner did not appear for him. It does not appear what were the pleadings, nor what the issue tried. It only appears that the testimony showed that the plaintiff was the wife of the copartner, Adams, and that she performed the work for the firm for which the action was brought. She was beaten, in the jus- tice's court; she appealed, and the county court reversed the judgment ; for what reason, does not appear. In the Supreme Court, the judgment of the county court was affirmed, and the law was there discussed as to the right of a wife to sue her htt^- hand The leading opinion, by Miller, J., merely holds that such a contract could be made, and if made, could be main- tained under the statute of 1862, at law. One member of the court, HoGEBOOM, J., puts his assent to the decision on the ground that, the husband not having appeared in the case, nor any one for him, there was no one to object to his being sued, or to a judgment against him ; and that even if he could not be PERKINS V. PERKINS. 585 sued, his copartner, Curtis, was bound, at all events, and he could seek contribution over from the husband. On either of these propositions, the case is not in conflict with the views we have expressed above, that the statutes were passed to enfran- chise married women, and to protect their property, and not to protect, or extend rights to, their husbands. The case of Minier v. Minier (supra), is to the same effect, — that a married woman may maintain an action against her hus- band to recover moneys intrusted to him by the wife, or for lands which had been purchased with such moneys, and title taken in his name. Such has always been the law of equity, and the modern statutes have but extended it to actions at law. The only criticism to which this last cited case is subject, is tht obiter remark of the learned judge that the act of 1862 "war- rants the bringing of a suit, both by a wife against her husband, and hy a husband against his wife." This last branch of tho. sentence was not a question before, the court, and I cannot give it my assent. It is in conflict with direct holdings in previous cases in the higher court ; to wit, in White v. Wager, 25 N. Y. 328, and in Hunt v. Johnson, 44 id. 27. lu' this last case the court drew the distinction between an instrument made by a wife to her husband, and one from a husband to the wife, even at common law. Referring to another case, Hunt, J. , says : " That case differs from the present action ; that was a conveyance by wife to the husband ; this was by the husband to the wife. " They do not necessarily stand upon the same basis, in equity. It is the duty of the husband to provide an assured and comfortable sup- port for the wife during his life, and after his death. No duty rests upon the wife to provide for the husband. The custom of the country, and the laws of the land, look upon her as the party to be aided and sustained by the toil and wealth of the husband. An application of the husband's property for her comfort is eminently equitable, and has been favored by the courts from their earliest existence. No judge has yet announced that this equity, or this favor, is to be extended to gifts from the wife to the husband. There is, in the nature of things, a broad and palpable distinction against an equitable claim in the husband's favor. Interpreting these statutes (including that of 1862), to be in pari materid, as if all were contained in one act, beginning with 586 SUPPLEMENT. those of 1848 and 1849, entitled " for the more effectual protec- tion of the property of married women ; " taking the common law as it has ever been declared; abrogating none of the com- mon law by forced construction, not expressed by a statute ; and giving due force to the maxim Uxpressio unius est exclusio alte- rius, husbands are excluded from their provisions. The stat- utes of the State of Pennsylvania (Laws of Session, 1848, p. 536, &c.), which are almost identical with our own, have been so construed in their highest courts. In the case of Diver v. Diver, reported in 56 Penn., at page 109, Steong, J. (now of the United States Supreme Court) said: "The design of this statute (1848) was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property. To effectuate this object she is enabled to own, and use and enjoy, her property, by removing it from under the dominion of her husband. " " It is to be, as her separate property is enjoyed ; as property settled to her separate use. The act no more destroys her union with her husband than does a settlement for her sepa- rate use. " " It is a remedial statute, and we must construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove the mischief." There is, then, no doubt as to what the common law was, and is. It is equally as clear that there is no expression of an in- tent, in this statute, to destroy the unity or oneness of husband and wife, except as to her, in the single particular of her con- trol of her separate estate. There is no question that statutes are to be interpreted as not changing the common law, unless it is so expressed in terms, or by necessary implication. There is nothing in the act of 1862, or in its title, that intimates an intent to add new, rights or remedies, in favor of a husband. Looking, then, at the common law as still being in force, except as expressly changed by these statutes, let us see what are the expressions in the act of 1862, from which it is attempted to imply a power of destruction of the unity of the parties, husband and wife, further than is expressed. § 7. " She may sue and be sued, in all matters having relation to her ^ole and separate property. " But by whom may she be sued ? By herself ? Of course not. By him who is in oneness or unity with her ? Can he, the one half of this united one, sue the other half, by virtue PEKKINS V. PERKINS. 587 of this statute ? He certainly could not sue, by the common law. What language then is found in this statute, that author- izes him to sue her ? It is a universal canon of construction of statutes that unless the provisions of a new statute are so repug- nant to the common law that both cannot exist together, the common law is not abrogated, but remains in all its force. Dwarris, Am. ed., 185, and notes. This is the law of interpre- tation. True, the language of the statute of 1862, that "she may sue and be sued," is broad enough, in general terms, to in- clude all parties that are several and equal, and under no disa- bility ; but it does not include persons that are under disability. The husband is, under the common-law disability, unable to sue his wife. This statute is not broad enough, and does not di- vorce him from that disability ; whatever it may do for her. It is not broad enough to absolve him from the liability, as well as the duty, to labor for the support and maintenance of the wife ; far less does it authorize him to sue her for his support. Though in its language it does, in one particular, and in that only, enfranchise her, and confer rights upon married women, for a particular purpose, there is not one expression in it that confers new powers upon him. The marriage contract, with its liabil- ities, cannot be so severed by legislative or judicial construction in favor of a husband. He cannot be so released from a binding civil contract. Besides, such a contract is clearly against pub- lic policy. If, indeed, the statute contained an express provi- sion to that effect, it would, I think, be void, on the ground of its being retrospective in its operation upon marriages solem- nized before its passage. I have been the more .inclined to meet and resist the construc- tion claimed by the plaintiff, thus earnestly, at this time, be- cause I have seen the disposition manifested in several dicta which are already found in the reports, tending in that direc- tion. I regard such a construction as in effect, judicial legis- lation; though in none of the cases has the question been necessary to a direct adjudication. It is entering into a new and unexplored region for judicial action. Its explorations are with- out compass or chart to direct its forward course, or its retreat. The way will be found dark, and full of stumbling-blocks, and with no experienced guide. Until the legislature shall open the way, or light up the path, I am not disposed to enter. 588 SUPPliEMENT. I think, upon the main question I have discussed above, that the judgment of the county court, and that of the justice, should be reversed, with costs. Balcom, J., concurred. Miller, P. J., concurred in the result, for the reasons stated in a written opinion. Judgments reversed. Delia Wright v. William H. Wright. (54 N. Y. 437. Commission of Appeals of New York, 1873.) Wife's Action against Husband on Promissory Note given before Marriage. Reynolds, C. The complaint states that on the 1st of March, 1868, the plaintiff's name was Delia Bstabrook, and that about that day the defendant, for a valuable consideration, gave her a promissory note, dated March 1st, 1868, for $5,000 payable six months after date, with interest; that the plaintiff is the owner and holder of the note ; that it is impaid, and Judgment is demanded for the amount with interest. The answer of the defendant denies every allegation of the complaint, except that on the 1st of March, 1868, the plaintiff's name was Delia Estabrook, and upon this issue the parties went to trial before a referee, who found that at the date named the name of the plain- tiff was as admitted ; that the note was for a valuable considera- tion given by the defendant; that it was unpaid, — and ordered judgment for the plaintiff for the amount, with interest and costs, and we are to consider the case upon an appeal by the defendant, the judgment of the referee having been affirmed at a General Term of the Supreme Court. Ordinarily, I think, in a case presented as this is, we might, under well-settled rules of practice, refuse to look into the evi- dence at all, and affirm the judgment upon the ground that it was supported by the facts found by the referee. But this case is exceptional in many respects, and we prefer to consider it in all its aspects, and see what judgment ought to have been given in the court below. The fact that the note was made by the defendant, and upon a good consideration, must be assumed as it is found by the referee, — as to the execution upon conflicting evidence, and as to the consideration there was no conflict of WEIGHT V. WEIGHT. 589 fact ; and in law it was unquestionably valuable. The case, as it appeared on the trial, without any objection as to evidence, under the issue joined, was substantially and in brief this : Prior to the execution of the note, the plaintiff was a widow and the defend- ant a widower, and both in marriageable condition. The de- fendant proposed marriage, and the plaintiff declined unless he settled something on her. She had an income which would cease on marriage, and she was not willing to give it up without some pecuniary equivalent. These negotiations ended by the giving of the note in suit, and on the 10th of March, 1868, the parties were married. Not long after, domestic difficulties arose, resulting finally in separation, and, in that condition of things, this action was brought to recover the amount of the note. Evidence was given on the trial, without objection by either party, of all the circumstances under which the note was given, and those relating to the disputes after the marriage, and also in respect to the separation. It seems to have been the effort of the defendant to show that the plaintiff left him with- out cause, and that the consideration of the note had failed ; but the finding of the referee disposes of that question. The evi- dence upon most points, as well as on this, was conflicting,, and we must assume that the referee regarded the defence as a total failure. The only exceptions taken were to the refusal of the referee to nonsuit the plaintiff. This motion was made at the close of the plaintiff's case, upon thp ground of want of consid- eration to the note ; that the action was improperly brought for the reason that the note was lost at the time the action was brought ; and that a bond of indemnity should have been offered, given or tendered; and "that, the plaintiff being the wife of de- fendant, she cannot maintain this action." The consideration of the note was a promise to marry the de- fendant, which the plaintiff performed. This was unquestion- ably a good consideration. Sugden, 437; 2 Bl. Com., 297; Verplank v. Sterry, 12 Johns. 536; s. c. 1 Johns. Ch. 261. It was not obnoxious to the statute of frauds, as it was in writ- ing, subscribed by the party to be charged, and was made in con- sideration of marriage. 2 R. S. 135, § 2. It cannot, I think, be doubted that a promissory note given in consideration of such a promise, which promise is afterward performed, answers all the objects for which the statute was enacted. 590 , SUPPLEMENT. The objection that no bond or indemnity was given or ten- dered cannot prevail. This is only necessary in case the lost note was negotiable. 2 R. S. 406, §§ 75, 76. The only copy of the note given in evidence in this case shows that it was not negotiable. But if it be assumed that there was no proof on that subject, one way or the other, we cannot properly presume that the lost note was negotiable in order to give point to a technical objection, and more especially in a case like the pres- ent, where the. evidence tended very strongly to show that the defendant obtained possession of the note after marriage, with- out the wife's consent, and either destroyed it or had it in his possession at the time of the trial. Blade v. Noland, 12 Wend. 173; Des Arts v. I^eggett, 16 N. Y. 582. The next and last objection, and the one chiefly argued, is that the plaintiff, being the wife of the defendant, cannot main- tain the action. It is to be doubted whether, under any rule of practice, this form of objection raises any question which ought to be considered in an appellate Court. It certainly does not suggest the question that has been argued before us, that is, that the action is one at law, when it should have been in equity. It may be said, in the first place, that the objection raised does not suggest any infirmity in the plaintiff's right, but rather of remedy or a disability to bring present suit. In such cases, ordinarily, the defence of disability is regarded as dilatory merely, and must, to be made' available, be strictly pleaded. In this case no plea of disability on account of the connection of the plaintiff is set up in the answer, and the point might, for that reason, be disregarded. Webster v. Webster, 58 Maine, 139; 4 Am. R. 258; 39 Vt. 319; Logan v. Hill, 19 Iowa, 491. But we do not propose to place our decision upon any such technical ground. At common law, the note in suit, being valid, would have been extinguished by marriage, and no action could have been maintained upon it. But our statute provides that all contracts "made between persons in contemplation of marriage, shall remain in full force after such marriage takes place. " Laws of 1859, chap. 475, § 3. This language is en- tirely clear, and rescues the note in controversy from the fate to which the common law would have consigned it. Power v. Lester, 23 N. Y. 527, 529. The plaintiff, therefore, has a valid obligation against the defendant, which, in some form, WEIGHT V. WEIGHT. 591 either at law or in equity, or both, she can enforce in the courts. The Supreme Court, in which the actiojti was tried, has " gen- eral jurisdiction both in law and equity, " and it had jurisdic- tion of the persons of both parties to this controversy, and could give judgment according to the very right of the case, regardless of form, and, in furtherance of the ends of justice, might amend pleadings, conform pleadings to facts proved, and do various other things tending in the direction above indicated. Code, §§ 175, 176, Wait's edition, and cases cited in notes. While it is admitted that the rights of the plaintiff could be enforced by suit in equity, yet it is insisted that this, being an action at law, cannot be maintained by a married woman against her husband. It might be asked by what authority the defendant names this an action at law ? What additional allegation in the complaint would have enabled the defendant to designate it as a suit in equity ? Nothing more could be truly said than that the consideration of the note was a promise to marry, which had been performed,, and all this was proved without objection. Certainly the defendant has been deprived of no legal right, and if the form of the pleadings was not agreeable to him, it was very easy to have them made to conform to the facts proved, by a proper application. If the complaint was not full enough to disclose the case in all its features, it was competent for the defendant to spread the facts out in his answer by way of affirmative de- fence or otherwise, for all that has any bearing upon the rights of the parties grew out of one and the same transaction. While regard is still to be had in the application, of legal or equitable principles, there is not of necessity any difference in the mere form of procedure, so far as the case to be stated in the com- plaint is concerned. All that is needful is to state the facts sufficient to show that the plaintiff is entitled to the relief de- manded, and it is the duty of the court to afford the relief with- out stopping to speculate upon the, name to be given to the action. These principles have been frequently acted upon by the courts. Marquat v. Marquat, 2 Kernan, 336; Emery v. Pease, 20 N. Y. 64; Corning v. Troy Iron and Nail Factory, 40 id. 207 ; Corn Exchange Ins. Co. v. Babcock, 42 id. 693. Indeed, if some such result has not been attained by the Code of Procedure, we are still in the labyrinth of legal technicalities in practice and pleadings contrived long ago, and tending to 592 SUPPLEMENT. enslave the administration of justice, and from which it has been hoped we had, . by legislative aid, secured comparative freedom. ' When, as in our system, a single court has jurisdiction both in law and equity, and administers justice in a common form of procedure, the two jurisdictions of necessity become to some ex- tent blended. This must be especially the result where the forms of pleading and proceeding are alike. If, as has been in some of the courts of the United States, the rigid forms of the com- mon law have been preserved on one side of the court, while all the old equity forms have been preserved on the other, the dis- tinction between law and equity is still quite apparent. It was said long ago by Sir John Mitford (afterward Lord Redes- dale) that "the distinction between strict law and equity is never, in any country, a permanent distinction; law and equity are in continual progression, and the former is certainly gaining ground upon the latter. ' A great part of what is now strict law was formerly ponsidered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next." Mitf. 428. It would not be profitable to attempt to trace the gradual assimilation of two apparently adverse sys- tems of jurisprudence when brought in actual contact in a single court under a common form of procedure ; it is enough to know that, in our courts at the present day, justice may be adminis- tered without regard to mere form. Certain forms are needful to be preserved, but they must not obstruct the path to exact justice, and if they do they will be swept away. In the present case, we find no difficulty either in form or substance in giving a judgment according to the intention of the parties, and which both law and equity plainly allow. Under our present system of policy in respect to the relations of husband and wife, I do not see why a married woman may not sue her husband to enforce any right affecting her separate property, in any form of action (if any distinct forms can be said to exist), in the same manner that she might sue any stranger; and such, I think, is the judgment of the courts. Power V. Lester, 23 N. Y. 627, 630; Dygert v. Reimerschnider, 32 N. Y. 629; Whitney v. Whitney, 49 Barbour, 319. The judgment should be affirmed, with costs. All concur. Judgment affirmed. M'CRIIiLIS V. HOW. 593 M'Crillis v. How. (3 N. H. 348. Superior Court of Judicature of Kew Hampshire, 1826.) Liability of Infant on Promissory Note for Necessaries. Assumpsit upon a note, dated February 21, 1823, for $21. 92, made by the defendant and payable to the plaintiff or order. There was also a count upon an account for medicines and visits, as a physician, amounting to $21.92. The cause was submitted to the decision of the Court, upon the following facts. The plaintiff did the services, and fur- nished the medicines, mentioned in the second count ; but at the time, the defendant was an infant under the age of twenty-one years. The services so rendered, and the medicines so deliv- ered, were necessary and proper for the defendaHt. On the 21st February, 1823, the defendant gave to the plaintiff the note, mentioned in the first count, to balance said account; and the plaintiff did balance the account upon his book, by giving credit for the said note. At the time the said note was given, the de- fendant was an infant, under the age of tweuty-one years. W. Sawyer, for the plaintiff. J. H. Woodman, for the defendant. By the Court. It has long been settled, that no action can Ido maintained against an infant, upon a promissory note. The reason assigned is, because, if the note was held to be valid, the infant would, when the note was in the hands of a bond fide indorsee, be precluded from disputing the original debt. Chitt. on Bills, 24; 1 D. & B. 40, Freeman v. Hurst; 8 Gaines' Rep. 322, Van "Winkle v. Mitcham; 10 Johns. 33, Swazey v. The Adm'r of Vanderheyden ; 2 Starkie, 36, Ingledew v. Douglas; Campbell, 552, Williamson v. Watts; Carthew, 160, Williams V. Harrison et al. The plaintiff then cannot recover upon his first count, ^ut we see no objection to a judgment in his favor, on the second count. A void note, given to balance an account, is no satisfac- 594 SUPPLEMENT. tion. 2 Johns. 455, Markle v. Hatfield; 1 Esp. N. P. R. 5; 6 D. & E. 52, Puckford v. Maxwell ; 1 N. H, R. 281 ; 3 Brod. & Ring. 295 ; 7 Taunton, 311, Hickling v. Hardy ; 4 East, 147. Judgment for the plaintiff. ^/^/_^ j^^^^i^^^ jLU^^ MoETiMOEE V. Wright. (6 M. & W. 482. Court of Exchequer, 1840.) Liability of Father for Necessaries for Infant Son. Debt for board and lodging furnished to the infant son of the defendant, and for nursing, attendance, and necessaries supplied to him during sickness, with counts for money paid and on an account stated. Plea, nunquam indebitatus. At the trial be- fore RoLPE, B., at the Middlesex Sittings in Hilary Term, it appeared that the defendant's son, who was between nineteen and twenty years of age, lodged with the plaintiff from May 1887 to September, 1889, when he came of age. For the last six or seven months of that time he was too ill to follow his usual occupation, and was supplied with necessaries and attend- ance by the plaintiff, without making any payment for them. He had previously earned £1 a week, and had from time to time paid his bills to the plaintiff. No proof was given of any orders from, or request by, the defendant to the plaintiff to supply his son with anything: but the following letter from him to the plaintiff was relied on as an admission of his liability: — Oxford, August 9, 1839. Mrs. Mortimore, — I am sorry to hear Joseph is in such a bad state of health. You have written to me for money, but I cannot advance any at this time, being so near harvest that the farmers want all they have to pay their men ; but Joseph will come in possession of upwards of <£80 on September the 6th, 1839, being twenty-one years old that day, and then he can pay you what he owes you himself. — Yours respectfully, William Wright. MOETIMOEE V. WEIGHT. 595 It was contended for the defendant, that there was no evi- dence to go to the jury of any contract by which the defendant was bound to pay the debts in question, and that the plaintiff ought to be nonsuited. The learned Judge inclined to that opin- ion, but on the authority of Blackburn v. Mackey, 1 C. & P. 1,1 which was cited for the plaintiff, he declined to, nonsuit. The plaintiff's letter, to which the above was an answer, was then put in as a part of the defendant's case: — Great Ormond Yard, August 6th, 1836, Sir — I am extremely sorry to be obliged to trouble you in this manner; but ever since the first night your son Joseph came to London, I have had him lodging in my house : I have acted to him in every respect the same as a mother, and for the last six months he has not been able to pay me one penny, and during his illness I boarded and attended to him ; that he now owes me 101. 13a. 9c?., and part of it lent money: and I am so much distressed by losing so much by others, that has com- pelled me to write to you, which Joseph's cousin can vouch for, as he is well acquainted with the parties. Sir, if you will be so kind as to advance me the money, or a part of it, you will cer- tainly do an act of charity, for I am in the greatest want of it. If you can persuade your son to come home, I think he might soon be better, otherwise I think he will soon go into a decline, for he looks very ill. Sir, if you will please to send me an an- swer as soon as possible, you will much oblige your humble servant, Elizabeth Mortimoee. The learned Judge directed the jury, that before they could find for the plaintiff, they must be satisfied that the defendant, by his letter, meant to admit an original liability on his part to pay his son's debts. The jury, however, found for the plaintiff, damages 13Z. 6s., the learned Judge reserving leave to the de- fendant to move to enter a nonsuit. In Hilary Term, Knowles obtained a rule accordingly, or for a new trial, against which Lee and Horry now showed cause. — The letter of the defend- ant was sufficient evidence of liability to go to the jury, and the learned Judge was right in refusing to nonsuit. The case of 1 E. C. L. K. vol. 11. 596 SUPPLEMENT. Blackburn v. Mackey, wHclii was cited at the trial, is directly in point. There, a letter written by the father of a young man under twenty-one, who had been supplied with clothes by a tailor, certainly not containing terms any stronger in acknowl- edgment of a liability than this, was held by Lord Tenteeden to be evidence for the jury, to say whether it admitted an origi- nal liability. The fair inference from the defendant's letter was, that if he had been in funds, he would have paid the plain- tiff. [Lord Abingee, C. B. — In the case cited, there was an express promise to pay the first bill if sent.] Although it was clear no contract existed on his part before. [Parke, B. — The words were equivocal j it might be either that he was willing to pay as a favor, or that he made no objection in fact or in law to his liability on the fiTst bill.] But further, here the son continued afterwards to board with the plaintiff; and after notice to the father of the son's illness, and that necessaries were being supplied to him, he ought to have directly repudi- ated any liability, otherwise he is bound to pay for them. In Niehole v. Allen, 3 0. & P. 36, i which was an action for board and lodging furnished to an illegitimate child of the defendant, it was proved that he knew of her being with the plaintiff, and had formerly allowed £12 a year for her support; and Lord Tentbrdbn there said, "Leaving out of the case all about the allowance, it stands thus: he knows where she is, and allows her to remain there : "' and again, " There is not only a moral but a legal obligation on the defendant to maintain his child ; he knows where she is, and he expresses no dissent, and does not take her away. There is a legal obligation made out, if it is shown that she is maintained in the plaintiff's house, and he knows it ; and it then lies on the defendant to show that she is there against his consent, or that he has refused to maintain her any longer at his expense." [Lord Abinger, C. B. That is only a nisi prius decision, and I cannot assent to any such doc- trine.] Law V. Wilkin, 6 Ad. & B. 718,2 1 N. & P. 697, was a decision in banc. There a boy at school had been supplied with clothes by the plaintiff, had taken them home at the holi- days, and brought them back to school ; and it was held (over- ruling the opinion of Paeke, J., who had nonsuited at the trial), that these facts were evidence to go to the jury of an implied 1 E. C. L. R. vol. 14. 2 Id. 33. MOKTIMORE V. WEIGHT. 597 authority from the father to furnish the clothes. [Lord Abingeb, C. B. If that be so, I am sorry for it : I cannot concur in the decision. Parke, B. But for that decision, I certainly should have thought there was no single fact in that case to show the authority of the father, but only mere conjecture.] Here the defendant's letter raises an inference that the previous payments by the son were payments by the father through the instrumen- tality of the son. Then, as to the question of a new trial, the two letters taken together, with the fact of the defendant's allowing his son to remain with the plaintiff, after her request that he would take him home on the ground of his ill health, were sufficient evi- dence from which the jury might reasonably infer that he authorized his continuing there at his charge. Knowlea, contra, was stopped by the Court. Lord Abinger, C. B. I am clearly of opinion that there was no evidence for the jury in this case,, and that the plaintiff ought to have been nonsuited. The learned Judge was anxious, as judges have always been in modern, times, not to withdraw any scintilla of evidence from the jury ; but he now agrees with the rest of the Court, that there ought to have been a nonsuit. In the present instance, I am the more desirous to make the rule absolute to that extent, in order that there may be no un- certainty as to the law upon this subject. 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. Prom the moral obligation a parent is under to provide for his children, a jury are, not unnaturally, disposed to infer against him an admission of a liability in respect of claims upon his son, on grounds which warrant no such inference in point of law. In the present case, it is not pretended that there is any evidence whatever to charge the defendant, independently of the letter written by him, which is relied on for that purpose: but the interpretation which is sought to be put upon that letter is in no respect w:arranted by the terms of it. [His Lordship read the letter.] There is nothing whatever in this letter to show any intention to acknowl- edge a debt due from the writer ; on the contrary, the father in- sists that the son, and not himself, is the debtor, and refers the plaintiff to the son for payment. This is rendered even more 598 SUPPLEMENT, clear by the former letter of the plaintiff, to which the defend- ant's is an answer; and it is manifest that no admission of any liability whatever was intended, or even expected. With re- gard to the case in the Court of King's Bench, of Law v. Wilkin, if the decision is to be taken as it is reported, I can only say that I am sorry for it, and cannot assent to it. It may have been influenced by facts which do not appear in the report ; but as the case stands, it appears to sanction the idea that a father, as regards his liability for debts incurred by his son, is in a different situation from any other relative : which is a doctrine I must altogether dissent from. If a father does any specific act, from which it may reasonably be inferred that he has au- thorized his son to contract a debt, he may be liable in respect of the debt so contracted : but the mere moral obligation on the father to maintain his child affords no inference of a legal prom- ise to pay his debts ; and we ought not to put upon his acts an interpretation which abstractedly, and without reference to that moral obligation, they will not reasonably warrant. In order to bind a father in point of law for a 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 it would bring the law into great uncertainty, if it were permitted to juries to impose a liability in each par- ticular case, according to their own feelings or prejudices. Parke, B. I am of the same opinion, and concur in the observations which have fallen from my Lord Chief Baron; although I should have acted as my Brother Rolpe did at the trial, in declining to nonsuit, from the doubt created by the case of Blackburn v. Mackey, d,nd in the expectation that the jury would find for the defendant, which they undoubtedly ought to have done, after the additional evidence given by him. We are now, however, to decide whether, at the time when that objec- tion was taken by Mr. Knowles at the trial, there was any evi- dence to go to the jury ; and I am of opinion that there was not. It is a clear principle of law, that a father is not under any legal obligation to pay his son's debts ; except, indeed, by proceedings under the 43 Eliz., by which he may, under certain circum- stances, be compelled to support his children according to his liability ; but the mere moral obligation to do so cannot impose upon him any legal liability. Then, did the evidence in this MOETIMOEB V, WRIGHT. 599 case carry it further ? All the facts which were in evidence at the trial were directly opposed to the notion that the defendant had admitted any liability on his part, with the exception of his letter, which as explaining its own purport, was rightly admitted in evidence, without that to which it was an answer. That letter is to be read according to the ordinary import of its lan- guage ; and so reading it, I cannot find in it any admission of liability; it is not even equivocal in its terms, but directly refers to the debt in question as one which the son himself owed ; and it is quite consistent with every word of it, that the father was willing to make an advance to the plaintiff by way of gift, if it had been in his power. There was no proof of any contract in this case, which was absolutely necessary to render the de- fendant liable; and whatever may be the moral obligations of parties, juries must not be allowed to make them contract without legal evidence. The present case is distinguishable from Black- burn V. Mackey, which may possibly be supported, although I doubt much whether, even in that case, there was any evidence for the jury. RoLFB, B. I am of the same opinion. Had it not been for the case of Blackburn v. Mackey, which was cited at the trial, I should certainly have nonsuited the plaintiff ; but, upon reflec- tion, I doubt whether in that case there was any evidence for the jury, and I am clearly of opinion that none was given in this case. After the evidence given for the defendant, the case became still stronger against the plaintiff, and I quite expected a verdict for the defendant. Rule absolute to enter a nonsuit. -:-rM E^ C.2 Author Ewell, Marshall D. Vol. Title Copy Cases on Domestic Relations Date Borrower's Name mmmmfm^mmmmHm^